Kowalski v Repatriation Commission

[2009] FCA 47

FEDERAL COURT OF AUSTRALIA

Kowalski v Repatriation Commission [2009] FCA 47

KAZIMIR KOWALSKI v REPATRIATION COMMISSION

SAD 216 of 2008

MANSFIELD J
30 JANUARY 2009
ADELAIDE

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	SAD 216 of 2008

BETWEEN:	KAZIMIR KOWALSKI Applicant
AND:	REPATRIATION COMMISSION Respondent

JUDGE:	MANSFIELD J
DATE OF ORDER:	30 JANUARY 2009
WHERE MADE:	ADELAIDE

THE COURT ORDERS THAT:

1.The motion for leave to appeal be refused.

2.The costs of the motion be the respondent’s costs in the event that the application by the applicant by way of appeal from the Administrative Appeals Tribunal in matter SAD 168 of 2008 is dismissed.

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 216 of 2008

BETWEEN:	KAZIMIR KOWALSKI Applicant
AND:	REPATRIATION COMMISSION Respondent

JUDGE:	MANSFIELD J
DATE:	30 JANUARY 2009
PLACE:	ADELAIDE

REASONS FOR JUDGMENT

1. On 24 December 2008, the applicant applied for leave to appeal from a decision or a ruling of a Judge of the Court given on 22 December 2008 not to disqualify himself from hearing this proceeding. The proceeding is an appeal from the Administrative Appeals Tribunal (the AAT), confined as it must be to a question of law pursuant to s 44 Administrative Appeals Tribunal Act 1975 (Cth). The AAT had affirmed a decision of the Veterans’ Review Board in relation to the eligibility or ineligibility of the applicant to a certain disability pension which he claimed arising out of his military service. Subsequently, the appeal itself came on for hearing on 22 January 2008. Judgment has been reserved.

2. The principles upon which a judge should disqualify himself or herself by reason of an appearance of bias are clear enough.  The question is whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind and unprejudiced mind to the resolution of the question the judge is required to decide: Johnson v Johnson (2000) 201 CLR 488 at 492.

3. The application for leave to appeal under Order 52 Rule 10 of the Federal Court Rules gives the Court an unfettered discretion as to whether it should or should not grant the application. However, it is commonly regarded as significant in considering an application for leave to appeal to determine the prospects of the proposed appeal succeeding and to consider whether particular injustice would be caused to the applicant if leave to appeal were refused.

4. In this matter, I have read the affidavit of the applicant in support of his application for leave to appeal, the proposed grounds of appeal, the written submissions of respondent and the three sets of written submissions of the applicant dealing with the application. I have also had the benefit of the oral submissions received today.

5. There is one strong reason why, in my view, leave to appeal should not…