Kowalski and Repatriation Commission - [2011] AATA 212

Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2011] AATA 212
ADMINISTRATIVE APPEALS TRIBUNAL )
) Nos 2009/4000 & 2010/2439

VETERANS' APPEALS DIVISION )

Re KAZIMIR KOWALSKI

Applicant

And

REPATRIATION COMMISSION

Respondent

INTERLOCUTORY DECISION

Tribunal Senior Member K Bean
Professor D Ben-Tovim (Member)
Date 8 March 2011
PlaceAdelaide

Decision
WHEREAS:

A. The applicant has applied, pursuant to s 21A of the Administrative Appeals Tribunal Act 1975 (the AAT Act) for the Tribunal to be reconstituted.

The TRIBUNAL DECIDES that:

1. The applicant’s purported application pursuant to s 21A of the Administrative Appeals Tribunal Act 1975 is rejected and will not be forwarded to the President of the Tribunal, pursuant to s 21A(2) of the AAT Act. Rather the Tribunal has decided to treat that application as an application that Professor Ben-Tovim disqualify himself from further hearing this matter on the grounds of bias or apprehended bias.

2. In relation to what we have decided to treat as the applicant’s application based on apprehended bias, the Tribunal has decided that the matters referred to by the applicant do not give rise to a reasonable apprehension of bias on the part of Member Ben-Tovim and therefore Member Ben-Tovim should not disqualify himself from hearing the matter on that basis.

..............................................
K BEAN
(Senior Member)

CATCHWORDS
PRACTICE AND PROCEDURE – Application for reconstitution of Tribunal pursuant to s 21A of AAT Act – Circumstances in which such an application to be forwarded to the President – In substance the application is one for disqualification on the grounds of actual or apprehended bias – Application pursuant to s 21A rejected – No apprehended bias – The Tribunal as constituted will continue to hear matter.
Administrative Appeals Tribunal Act 1975 s 21A
Re Mellor and Australian Postal Corporation [2010] AATA 288
Johnson v Johnson (2000) 201 CLR 488
REASONS FOR DECISION

30 March 2011   Senior Member K Bean
  Professor D Ben-Tovim (Member)

1.      This decision relates to an issue that arose during the hearing of this matter on 14 January 2011, as a result of which the applicant, Mr Kowalski, applied for the Tribunal to be reconstituted. We handed down our decision in relation to that application on 8 March 2011 and had initially intended to provide our reasons for the decision at the conclusion of the matter. On further consideration however, we have decided that it is appropriate for us the provide our reasons prior to that and prior to the resumed hearing currently scheduled for 6 April 2011.
2. The precise nature of the application made by Mr Kowalski has been the subject of some dispute and the respondent initially contended that on 14 January 2011, Mr Kowalski had not in fact applied for the Tribunal to be reconstituted pursuant to s 21A of the Administrative Appeals Tribunal Act 1975 (the AAT Act), but had rather applied for Member Ben-Tovim to disqualify himself on the grounds of bias or apprehended bias.
3. In any event, in light of later correspondence the respondent…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Kowalski and Repatriation Commission

Details

AGLC: Kowalski and Repatriation Commission [2011] AATA 212
Case: [2011] AATA 212
Decision Date: 30 March 2011

CaseChat Overview and Summary

The parties involved in this case are Kowalski and the Repatriation Commission. The dispute revolves around an application made by Kowalski for the Administrative Appeals Tribunal (AAT) to be reconstituted, pursuant to section 21A of the Administrative Appeals Tribunal Act 1975 (the AAT Act). The core issue before the court was whether there were grounds to disqualify Professor Ben-Tovim from hearing the matter due to actual or apprehended bias. The court was tasked with determining if the application for reconstitution, in essence an application for disqualification, was valid and if the Tribunal member should recuse himself.

The court found that the application made by Kowalski, while ostensibly for the Tribunal's reconstitution, was fundamentally an application for disqualification on the grounds of bias or apprehended bias. This required the court to consider whether the matters raised by Kowalski justified a reasonable apprehension of bias on the part of Professor Ben-Tovim. The court concluded that the points raised did not substantiate such a reasonable apprehension of bias, and therefore there was no basis for Professor Ben-Tovim to disqualify himself from the proceedings.

In its decision, the Tribunal ruled that Kowalski's application for reconstitution under section 21A of the AAT Act was to be rejected. The Tribunal deemed it appropriate to treat the application as one for disqualification due to apprehended bias. After careful consideration of the matters presented by Kowalski, the Tribunal determined that there was no reasonable apprehension of bias on the part of Professor Ben-Tovim, and thus he should not recuse himself from the case. Consequently, the Tribunal as constituted would continue to hear the matter.

Orders

Orders of the court

WHEREAS:

A. The applicant has applied, pursuant to s 21A of the Administrative Appeals Tribunal Act 1975 (the AAT Act) for the Tribunal to be reconstituted.

The TRIBUNAL DECIDES that:

1. The applicant’s purported application pursuant to s 21A of the Administrative Appeals Tribunal Act 1975 is rejected and will not be forwarded to the President of the Tribunal, pursuant to s 21A(2) of the AAT Act. Rather the Tribunal has decided to treat that application as an application that Professor Ben-Tovim disqualify himself from further hearing this matter on the grounds of bias or apprehended bias.

2. In relation to what we have decided to treat as the applicant’s application based on apprehended bias, the Tribunal has decided that the matters referred to by the applicant do not give rise to a reasonable apprehension of bias on the part of Member Ben-Tovim and therefore Member Ben-Tovim should not disqualify himself from hearing the matter on that basis.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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