Kowalski v Repatriation Commission

[2009] FCA 153

FEDERAL COURT OF AUSTRALIA

Kowalski v Repatriation Commission [2009] FCA 153

KAZIMIR KOWALSKI v REPATRIATION COMMISSION

SAD 3 of 2009

MANSFIELD J
27 FEBRUARY 2009
ADELAIDE

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	SAD 3 of 2009

BETWEEN:	KAZIMIR KOWALSKI Applicant
AND:	REPATRIATION COMMISSION Respondent

JUDGE:	MANSFIELD J
DATE OF ORDER:	27 FEBRUARY 2009
WHERE MADE:	ADELAIDE

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.

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	SAD 3 of 2009

BETWEEN:	KAZIMIR KOWALSKI Applicant
AND:	REPATRIATION COMMISSION Respondent

JUDGE:	MANSFIELD J
DATE:	27 FEBRUARY 2009
PLACE:	ADELAIDE

REASONS FOR JUDGMENT

1. The Repatriation Commission seeks summary dismissal of Mr Kowalski’s appeal from a decision of the Administrative Appeals Tribunal given on 7 January 2009.  The Commission first objected to the competency of the appeal by notice of 19 January 2009, and subsequently by motion of 5 February 2009 applied to have the notice of appeal dismissed as incompetent, together with an order for costs on an indemnity basis.  The motion means that it is in practical terms unnecessary to consider any issue as to whether the notice of objection to competency was given within the time permitted by O 19 r 3 of the Federal Court Rules and, if not, any further issue as to whether the time to have done so should be extended.

2. The short issue which the respondent seeks to ventilate is that the decision from which the appeal is brought is not a decision from which an appeal may be brought under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act). Section 44 permits a party to a proceeding before the AAT to appeal to the Court on a question of law from any decision of the Tribunal in that proceeding. Mr Kowalski says that the word “decision” should be given its “ordinary grammatical meaning”, a meaning which encompasses the decision of the AAT of 7 January 2009: see Farley (Aust) Pty Ltd v JR Alexander & Sons (Qld) Pty Ltd (1946) 75 CLR 487 at 492 per Williams J.

3. To understand the respective contentions, it is necessary to describe the AAT decision of 7 January 2009.

4. Mr Kowalski’s notice of appeal describes it as a decision to dismiss his application of 2 November 2008 “to declare the Repatriation Commission’s application for review frivolous or vexatious and to dismiss that application or direct a permanent stay in respect of that application and/or to dismiss the application pursuant to s 33” of the AAT Act.

5. Obviously, it is necessary to understand the nature of the proceeding before the AAT.

6. Mr Kowalski had applied for a pension under the Veterans’ Entitlements Act 1986 (Cth) (VE…