Kowalski v Superannuation Complaints Tribunal - [2010] FCA 104

FEDERAL COURT OF AUSTRALIA
Kowalski v Superannuation Complaints Tribunal [2010] FCA 104

Citation: Kowalski v Superannuation Complaints Tribunal
[2010] FCA 104

Parties: KAZIMIR KOWALSKI v SUPERANNUATION COMPLAINTS TRIBUNAL and AMP SUPERANNUATION LTD ABN 31 008 414 04

File number: SAD 192 of 2009

Judge: MANSFIELD J

Date of judgment: 19 February 2010

Date of hearing: 15 January 2010

Place: Adelaide

Division: GENERAL DIVISION

Category: No Catchwords

Number of paragraphs: 17

Counsel for the Applicant: The applicant appeared in person

Counsel for the Respondents: SD Voss

Solicitor for the Respondents: Thomson Playford Cutlers

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY

GENERAL DIVISION

SAD 192 of 2009

BETWEEN:
KAZIMIR KOWALSKI
Applicant

AND:
SUPERANNUATION COMPLAINTS TRIBUNAL
First Respondent

AMP SUPERANNUATION LTD ABN 31 008 414 04
Second Respondent

JUDGE:

MANSFIELD J

DATE OF ORDER:

19 FEBRUARY 2010

WHERE MADE:

ADELAIDE

THE COURT ORDERS THAT:
1.The application for leave to appeal from the order of Besanko J made on 9 December 2009 dismissing the notice of motion of the applicant of 4 November 2009 be refused.

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 192 of 2009

BETWEEN:
KAZIMIR KOWALSKI
Applicant

AND:
SUPERANNUATION COMPLAINTS TRIBUNAL
First Respondent

AMP SUPERANNUATION LTD ABN 31 008 414 04
Second Respondent

JUDGE:

MANSFIELD J

DATE:

19 FEBRUARY 2010

PLACE:

ADELAIDE

REASONS FOR JUDGMENT

The application seeks leave to appeal from a decision of Besanko J given on 9 December 2009. His Honour dismissed a notice of motion of the application in a proceeding (the principal proceeding) that he disqualify himself from hearing and determining it: Kowalski v Superannuation Complaints Tribunal [2009] FCA 1466.
The application for leave to appeal is a fall back position of the applicant. The document he filed following that decision is headed “Notice of Appeal”. It seeks leave to appeal only if the decision is an interlocutory one. It clearly is. The decision did not finally decide the rights of the parties on the issue between them: see Wills v Australian Broadcasting Corporation (2009) 173 FCR 284; Kowalski v Military Rehabilitation and Compensation Commission [2010] FCA 5. Section 24(1A) of the Federal Court of Australia Act 1976 (Cth) (the FCA Act) imposes the requirement for leave to appeal in the present circumstances, because it is an interlocutory judgment.
There is a further preliminary matter to address. In his “Notice of Appeal”, the applicant says that, if leave to appeal is necessary, he seeks “Leave to Appeal from [sic, to] the Full Court of the Federal Court.” He argues that his application for leave to appeal cannot therefore be dealt with by a single judge of the Court and should not have been listed before a single judge of the Court. That is wrong. Section 25(2) of the FCA Act provides that…

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.

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Details

Case: [2010] FCA 104
Decision Date

CaseChat Overview and Summary

The Federal Court of Australia was asked to decide whether the applicant, Kazimir Kowalski, could appeal a decision made by Besanko J, who dismissed Kowalski's notice of motion seeking Besanko J's disqualification from hearing and determining a proceeding. The proceeding, referred to as the principal proceeding, was an appeal under section 46 of the Superannuation (Resolution of Complaints) Act 1993 (Cth) against a decision of the Superannuation Complaints Tribunal. The Tribunal had determined that it did not have jurisdiction to hear and determine Kowalski's complaint.

The legal issues the court had to decide included whether the decision of Besanko J was interlocutory and if leave to appeal was necessary. Additionally, the court had to determine if there were grounds for Besanko J's disqualification from the principal proceeding based on the appearance of bias.

The court reasoned that the decision of Besanko J was indeed interlocutory as it did not finally decide the rights of the parties on the issue between them. Section 24(1A) of the Federal Court of Australia Act 1976 (Cth) required leave to appeal in such circumstances. The court also noted that the application for leave to appeal could be dealt with by a single judge, contrary to Kowalski's argument. The court found no merit in Kowalski's arguments for Besanko J's disqualification, stating that his Honour's decision to refuse disqualification was not attended with sufficient doubt to warrant reconsideration. The court concluded that refusing leave to appeal was appropriate to avoid unnecessary multiplicity of proceedings.

The court ultimately refused the application for leave to appeal from Besanko J's order dismissing Kowalski's notice of motion seeking disqualification. The decision emphasized the importance of avoiding unnecessary appeals and preserving the efficiency of the judicial process.

Orders