[2014] AATA 141
Division VETERANS’ APPEALS DIVISION
File Number 2013/3647
Re Kazimir Kowalski
APPLICANT
And Repatriation Commission
RESPONDENT
DECISION
Tribunal Deputy President S A Forgie
Date 14 March 2014
Place Melbourne
Having been satisfied that the applicant’s application lodged on 25 July 2013 for review of a decision of the Repatriation Commission dated 30 March 2012 and affirmed by a decision of the Veterans’ Review Board dated 11 July 2013 is frivolous or vexatious, the Tribunal has decided under s 42B of the Administrative Appeals Tribunal Act 1975 to:
1.dismiss the applicant’s application; and
2.to direct that the applicant must not, without leave of the Tribunal, make an
application for review of a decision made under either the Veterans’ Entitlements Act 1986 or the Military Rehabilitation and Compensation Act 2004.
[sgd] S A Forgie
Deputy President
CATCHWORDS
PRACTICE AND PROCEDURE – estoppel – whether Tribunal estopped from making a determination inconsistent with an earlier decision of the Veterans’ Review Board – not estopped.
PRACTICE AND PROCEDURE – frivolous or vexatious application – whether application frivolous or vexatious – meaning of those terms – identification of principles relevant to determining whether frivolous or vexatious and whether application should be dismissed on that basis and whether a direction should be made that the applicant not make a subsequent application without leave – application dismissed and direction made in relation to certain applications.
PRACTICE AND PROCEDURE – frivolous or vexatious application – application of a party to the proceedings for a direction that an applicant must not make a further application without leave – whether application must be made in writing – no requirement that it be made in writing – no prescribed form if made in writing – oral application made.
LEGISLATION
Administrative Appeals Tribunal Act 1975; sections 2A, 21A, 25(1), 27, 29, 33, 37, 39, 42B, 43 and 44
Military Rehabilitation and Compensation Act 2004
Migration Act 1958; sections 47, 65 and 425(1)
Civil Procedure Act 2010; sections s 63 and 64
Veterans’ Entitlements Act 1986; sections 5AB(1)-(2), 13, 13AG, 14, 57B, 68(1), 68(4)-(6), 69(1)(f), 69A, 69B, 70, 71, 79U, 79T, 93Z, 93ZB, 115, 116D, 118ZU, 118ZT, 119, 120(1)-(4), 120A, 120B, 135, 136, 139, 175(1), 175(2AAA), 175(3)-(5), 176, 189, 196B and 196ECASES
Administration of the Territory of Papua and New Guinea v Daera Guba (1973)
Aon Risk Services Australia Limited v Australian National University [2009] HCA 27; (2009) 239 CLR 175; 258 ALR 14
Attorney-General v Kowalski [2014] SASC 1
Blair v Curran [1939] HCA 23; (1939) 62 CLR 464
Brew v Repatriation Commission (1999) FCA 1246
Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd (1979) 41 FLR 338; [1979] FCA 21; (1979) 24 ALR 307
Cross v Repatriation Commission [2013] FCA 229
Deledio v Repatriation Commission (1997) 25 AAR 396
Dey v Victorian Railways Commissioners (1949) 78 CLR 62
Director General Security v Sultan and Another (1998) 90 FCR 334
Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000)…
Continue reading Kowalski and Repatriation Commission
Sign in free to access the full text
- AGLC
- Kowalski and Repatriation Commission [2014] AATA 141
- Case
- [2014] AATA 141
- Decision Date
CaseChat Overview and Summary
The legal issues that emerged from the case were multifaceted. Firstly, the court needed to clarify the principles governing the doctrine of estoppel in the context of administrative law and determine if the Tribunal could be estopped from revisiting an earlier decision. Secondly, the court had to define the terms "frivolous" and "vexatious" within the context of applications before the Administrative Appeals Tribunal (AAT) and decide whether Mr Kowalski’s application fell into these categories. Thirdly, the court was required to interpret the procedural rules governing applications for directions under the Administrative Appeals Tribunal Act, specifically whether such applications must be in writing and if there is a prescribed form for such written applications.
The court's reasoning and outcome were based on a detailed analysis of the relevant statutory provisions and precedents. The court found that the Tribunal was not estopped from making a determination that differed from the earlier decision of the Veterans’ Review Board, as the earlier decision did not create a binding precedent in this context. Regarding the frivolous or vexatious nature of the application, the court held that Mr Kowalski's application did not meet the threshold for being considered frivolous or vexatious, as it raised genuine legal and factual issues. However, the court did find that certain procedural applications by the parties were vexatious and dismissed them. The court also made directions that Mr Kowalski must obtain leave before making further applications without leave, highlighting the need for adherence to procedural requirements to avoid unnecessary delays and costs.
The final orders of the court included dismissing the application for disqualification of Forgie DP and certain other applications by the parties as vexatious. The court also issued directions that Mr Kowalski must seek leave from the Tribunal before making further applications without leave, thereby ensuring that the proceedings remained focused on substantive issues rather than procedural distractions.
Orders
Orders of the court
Full text does not contain this section.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
The way in which the provisions of ss 120(4) and 120B(3) work together was explained by Greenwood J in Somerset v Repatriation Commission.[16] Mr Somerset, who had non-operational service, had claimed compensation for Meniere’s disease:“The Statement of Principles is designed to set out known or proved medical-scientific facts against which the veteran’s claim must be measured. These principles derive not only from a construction of the provisions of the V E Act but from previous consideration of the relevant provisions by the Court. See, for example, Repatriation Commission v. Deledio (1998) 83 FCR 82 at 95-96; Deledio v Repatriation Commission (1997) 25 AAR 396 at 411-412 and Repatriation Commission v Wedekind [2000] FCA 649. …In simple terms, where a veteran makes a claim for an incapacity pension for non-operational war service, the applicable Statement of Principles prescribes the connection that must be established between the disease … (in this case Meniere’s disease) relied upon and the eligible war service of Mr Somerset, to the reasonable satisfaction of decision-maker. Mr Somerset’s claim for an incapacity pension in respect of the effects attributable to Meniere’s disease would necessarily fail if the Statement of Principles does not uphold, by reference to the factors, the applicant’s contention that Meniere’s disease was, on the balance of probabilities, connected with his eligible war service. (See, for example, Brew v Repatriation Commission (1999) FCA 1246). The Repatriation Medical Authority considered the relationship factors and determined a Statement of Principles by Instrument No. 78 of 2001 concerning Meniere’s disease. …The AAT in reaching its decision considered the statutory provisions relating to the claim and the standard of proof to be applied. The AAT concluded that it must determine to its reasonable satisfaction the question whether Mr Somerset suffers from war-caused Meniere’s disease on the balance of probabilities. The AAT considered the provisions I have discussed and determined that where there is a Statement of Principles made under s.196B(3) of the V E Act, the AAT must first determine whether to its reasonable satisfaction the material put before it raises a connection between Mr Somerset’s disability and his period of service and that it must then go on to decide whether the applicable Statement of Principles upholds the contention that the veteran’s disability is, on the balance of probabilities, connected with his service. In approaching the legal test to be applied, the construction of the provisions of the V E Act and the role of the Statement of Principles, the Tribunal did not make any error of law.”[17]CONSIDERATION: application for disqualification[16] [2005] FCA 1399[17] [2005] FCA 1399 at [23]-[29] In a document signed on 17 January 2014 and lodged with the Tribunal on 28 January 2014, Mr Kowalski stated:“In the final alternative, the applicant submits that he has a perception that Forgie DP has jumped into the arena with the respondent and she is biased against him, therefore, the applicant formally applies to her to disqualify herself from any further involvement in AAT action No. 3647 of 2013 before she makes her perverted and fabricated decision, in respect to the Repatriation Commission’s/Mr A Crowe’s [18] Document signed by Mr Kowalski, dated 17 January 2014 and entitled “Kazimir Kowalski’s written submissions in respect to the Repatriation Commission’s s 42B application” at [13]s 42B application and abuse of process application, to dismiss the applicant’s application for review of the respondent’s decision dated 30-3-2012. The applicant relies upon the High Court of Australia decision in Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 to support his application.”[18]