Kowalski v Repatriation Commission - [2010] FCA 217

FEDERAL COURT OF AUSTRALIA
Kowalski v Repatriation Commission [2010] FCA 217

Citation: Kowalski v Repatriation Commission [2010] FCA 217

Parties: KAZIMIR KOWALSKI v REPATRIATION COMMISSION

KAZIMIR KOWALSKI v MITSUBISHI MOTORS AUSTRALIA LTD

File numbers: SAD 112 of 2009
SAD 133 of 2009

Judge: SPENDER J

Date of judgment: 16 February 2010

Date of hearing: 16 February 2010

Place: Brisbane (Heard in Adelaide)

Division: GENERAL DIVISION

Category: No Catchwords

Number of paragraphs: 8

Counsel for the Applicant: The Applicant appeared in person

Counsel for the Respondent
in SAD 112 of 2009: Mr S Maharaj QC with Mr G Camilos

Solicitor for the Respondent
in SAD 112 of 2009: Australian Government Solicitor

Counsel for the Respondent in SAD 133 of 2009 Ms V Heath

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY

GENERAL DIVISION

SAD 112 of 2009

BETWEEN:
KAZIMIR KOWALSKI
Applicant

AND:
REPATRIATION COMMISSION
Respondent

JUDGE:

SPENDER J

DATE OF ORDER:

16 FEBRUARY 2010

WHERE MADE:

BRISBANE (HEARD IN ADELAIDE)

THE COURT ORDERS THAT:
1.I order that the motion be dismissed.
2.I order the applicant on the motion to pay the costs of the respondent to the motion, such costs to be taxed if not agreed.

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 Federal Law Search on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY

GENERAL DIVISION

SAD 133 of 2009

BETWEEN:
KAZIMIR KOWALSKI
Applicant

AND:
MITSUBISHI MOTORS AUSTRALIA LTD
Respondent

JUDGE:

SPENDER J

DATE OF ORDER:

16 FEBRUARY 2010

WHERE MADE:

BRISBANE (HEARD IN ADELAIDE)

THE COURT ORDERS THAT:
1. I order that the motion be dismissed.
2. I order the applicant on the motion to pay the costs of the respondent to the motion, such costs to be taxed if not agreed.
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 Federal Law Search on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY

GENERAL DIVISION

SAD 112 of 2009

BETWEEN:
KAZIMIR KOWALSKI
Applicant

AND:
REPATRIATION COMMISSION
Respondent

JUDGE:

SPENDER J

DATE:

16 FEBRUARY 2010

PLACE:

BRISBANE (HEARD IN ADELAIDE)

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY

GENERAL DIVISION

SAD 133 of 2009

BETWEEN:
KAZIMIR KOWALSKI
Applicant

AND: MITSUBISHI MOTORS AUSTRALIA LTD

JUDGE:

SPENDER J

DATE:

16 FEBRUARY 2010

PLACE:

BRISBANE (HEARD IN ADELAIDE)

REASONS FOR JUDGMENT

In relation to the Notices of Motion filed by the appellant that I recuse myself from the respective appeals, the statements of principle referred to in paragraph 2.2 of the appellant’s submissions correctly set out the circumstances in which a judge should recuse himself or herself.
The matters set out in paras 1, 1.1, 1.3 and 2.1 of the appellant’s submissions, are matters on which Mr Kowalski may indeed have based an appeal.
However, the assertion that a judge has committed error in making…

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 v Repatriation Commission

Details

AGLC: Kowalski v Repatriation Commission [2010] FCA 217
Case: [2010] FCA 217
Decision Date

CaseChat Overview and Summary

Kazimir Kowalski brought proceedings against the Repatriation Commission and Mitsubishi Motors Australia Ltd in the Federal Court of Australia. Kowalski filed motions seeking the recusal of Justice Spender from further involvement in his appeals against decisions made by Justice Spender in earlier proceedings. The court was required to determine whether there were grounds to recuse Justice Spender based on the arguments presented by Kowalski.

Justice Spender found that the complaints made by Kowalski were essentially points of appeal rather than evidence of bias. The court held that a judge's disagreement with a party's submissions or findings against that party did not constitute bias. The judge also noted that Kowalski had the right to appeal the decisions if he believed errors were made. The High Court had previously upheld Justice Spender's judgment in one of the cases, rejecting the views of another judge. Consequently, the court dismissed Kowalski's motions for recusal.

The court ordered that the motions be dismissed and that Kowalski pay the costs of the respondents to the motions, with those costs to be taxed if not agreed.

Orders