Kowalski v Repatriation Commission

[2009] FCAFC 107

FEDERAL COURT OF AUSTRALIA

Kowalski v Repatriation Commission [2009] FCAFC 107

ADMINISTRATIVE LAW – appeal from the Administrative Appeals Tribunal – appeal is permitted from a “decision” of the Administrative Appeals Tribunal under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) – “decision” does not have its ordinary meaning but means a decision determinative of the final outcome – decision appealed from not determinative – primary judge was correct to dismiss application as incompetent – leave to appeal from the interlocutory decision of primary judge refused

Administrative Appeals Tribunal Act 1975 (Cth) – ss 33,43(1), 44
Federal Court of Australia Act 1976 (Cth) – ss 24(1)(a), 24(1A)

Director-General of Social Services v Chaney (1980) 47 FLR 80 - applied
Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577 – cited
Fifita v Minister for Immigration and Multicultural Affairs [2001] FCA 1695 – applied
Geographical Indications v O’Connor (2000) 64 ALD 325 – applied
Re Macks; ex parte Saint (2000) 204 CLR 158 - followed
SZAJB v Minister for Immigration and Citizenship and Another (2008) 168 FCR 410 - cited

KAZIMIR KOWALSKI v REPATRIATION COMMISSION

SAD 26 of 2009

SPENDER, GRAHAM AND GILMOUR  JJ
14 AUGUST 2009
ADELAIDE

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY

GENERAL DIVISION

SAD 26 of 2009

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	KAZIMIR KOWALSKI Applicant
AND:	REPATRIATION COMMISSION Respondent

JUDGES:	SPENDER, GRAHAM AND GILMOUR  JJ
DATE OF ORDER:	14 AUGUST 2009
WHERE MADE:	ADELAIDE

THE COURT ORDERS THAT:

1.The application for leave to appeal in the “Notice of Appeal” filed on 3 March 2009 be dismissed.

2.The purported appeal be dismissed as incompetent.

3.The applicant pay the costs of the respondent, to be taxed on the usual party and party basis.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

The text of entered orders can be located using eSearch on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY

GENERAL DIVISION

SAD 26 of 2009

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	KAZIMIR KOWALSKI Appellant
AND:	REPATRIATION COMMISSION Respondent

JUDGES:	SPENDER, GRAHAM AND GILMOUR  JJ
DATE:	14 AUGUST 2009
PLACE:	ADELAIDE

REASONS FOR JUDGMENT

1. This is an appeal from orders of Mansfield J made on 27 February 2009 and entered on 9 June 2009.  His Honour’s orders were expressed as follows:

   THE COURT ORDERS THAT:

   1.        The application be dismissed.

   2. The applicant pay to the respondent its costs of this application on the usual party and party basis.

2. It became apparent that the expression of those orders is capable of confusion. 

3. Having regard to his Honour’s reasons for judgment, it is appropriate to cure any confusion by relying on O 35 r 7(2)(e) to substitute for order 1 as expressed in the orders of Mansfield J the following:

   1. The applicant’s application, constituted by a document titled “Notice of Appeal” filed on…