FEDERAL COURT OF AUSTRALIA
Kowalski v Repatriation Commission [2010] FCAFC 142
Citation: Kowalski v Repatriation Commission [2010] FCAFC 142 Appeal from: Kowalski v Repatriation Commission [2010] FCA 409 Parties: KAZIMIR KOWALSKI v REPATRIATION COMMISSION File number: SAD 55 of 2010 Judges: DOWSETT, COWDROY AND LOGAN JJ Date of judgment: 22 November 2010 Date of hearing: 22 November 2010 Place: Adelaide Division: Error! Reference source not found. Category: No catchwords Number of paragraphs: 2 Counsel for the Appellant: The Appellant appeared in person Counsel for the Respondent: Ms S Maharaj QC and Mr RJ Wallace Solicitor for the Respondent: Australian Government Solicitor
IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION
SAD 55 of 2010
ON APPEAL FROM THE FEDERAL COURT OF AUSTRALIA
BETWEEN: KAZIMIR KOWALSKI
AppellantAND: REPATRIATION COMMISSION
Respondent
JUDGES:
DOWSETT, COWDROY AND LOGAN JJ
DATE:
22 NOVEMBER 2010
PLACE:
ADELAIDE
REASONS FOR JUDGMENT
THE COURT:
The appellant seeks leave to amend his notice of appeal to include an appeal against the primary Judge’s failure to disqualify himself. We consider that the application should be refused. The appellant is unable to say with any certainty that he raised the question before the primary Judge. In those circumstances it would, in our view, be an abuse of process to allow him to amend. We may give slightly expanded reasons when we finally dispose of this appeal.
The appellant also seeks to lead further evidence on appeal. We consider that this application should also be refused. Again, we will give more detailed reasons at a later stage. Primarily, we consider that the evidence is not relevant to any issue properly before this Court. The appellant may have a basis for seeking to re-open his claim, but the evidence does not seem to concern or raise any question of law with which the primary Judge was concerned, or with which this Court should be concerned.
I certify that the preceding two (2) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Dowsett, Cowdroy and Logan. Associate:
Dated: 25 March 2011
- AGLC
- Kowalski v Repatriation Commission [2010] FCAFC 142
- Case
- [2010] FCAFC 142
- Decision Date
CaseChat Overview and Summary
The primary legal issues the court needed to decide were whether Kowalski could amend his notice of appeal to include an appeal against the primary judge’s failure to disqualify himself, and whether Kowalski could lead further evidence on appeal. The court needed to assess if Kowalski had raised the question of the primary judge’s potential disqualification before the primary judge, and if leading further evidence was relevant to the issues properly before the court.
The court found that Kowalski was unable to say with certainty that he raised the question of the primary judge's potential disqualification before the primary judge, and therefore, allowing the amendment would be an abuse of process. The court also found that the proposed additional evidence was not relevant to the issues before the court, and thus, the application to lead further evidence should also be refused. The court planned to provide more detailed reasons at a later stage.
In conclusion, the court refused Kowalski’s applications to amend his notice of appeal and to lead further evidence. The court found that Kowalski had not demonstrated that he raised the issue of the primary judge’s disqualification before the primary judge, and the proposed additional evidence did not pertain to the issues properly before the court.
Orders
Orders of the court
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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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