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No3. March 2009

Kowalski v Repatriation Commission

COURT Full Federal Court, Adelaide
JUDGES Spender, Emmett & Jacobsen JJ
DECISION Appeal dismissed and appellant to pay costs
ISSUES Refusal to grant disability pension – whether decision affected by bias – whether primary judge perverted course of justice – function of the AAT


Mr Kowalski served in the Australian Army between April 1972 and October 1973 and rendered “defence service”. The matter before the Full Federal Court concerned his claim for disability pension for depressive disorder, anxiety disorder, hypertension and ischaemic heart disease.

Mr Kowalski appealed to the Full Federal Court from the decision of Justice Besanko who had dismissed an appeal from an order made by a Deputy President of the Administrative Appeals Tribunal ("the Tribunal") affirming a decision of the Veterans’ Review Board rejecting the claim brought by Mr Kowalski.

Grounds of appeal

Mr Kowalski’s notice of appeal stated 71 grounds against the orders made by the Primary Judge. Their Honours did not refer to all grounds individually, but took all grounds into account noting they fell into two discrete categories, including:

The Court’s consideration

First ground of appeal: "perverting the course of justice”

Their Honours noted that the substance of this ground of appeal was that both the Deputy President and the primary judge were bound to accept Mr Kowalski’s claim. Their Honours considered that it is quite clear that the Deputy President was not bound to accept Mr Kowalski’s claim. The function of the Tribunal is to conduct a review of the decision of the decision-maker and to determine whether the decision was the correct or preferable one on the material before the Tribunal: Drake v Minister for Immigration and Ethnic Affairs [1979] AATA 179; (1979) 24 ALR 577 at 589 per Bowen CJ and Deane J. Nor was the primary judge bound to accept Mr Kowalski’s claims.

Second ground of appeal: “bias”

In their Honours’ opinion, this ground of appeal had no foundation. The primary judge was not bound to await the outcome of the application for leave to appeal. The failure of a judge to disqualify himself or herself may be brought as a ground of appeal from the final orders of that judge. It is not ordinarily to be the subject of a separate application for leave to appeal and the primary judge need not await the fate of any such application.

Further, their Honours noted that Mr Kowalski sought to argue the claim of bias in another way, namely, that the Deputy President was biased because he did not permit Mr Kowalski to ask certain questions of witnesses who gave evidence before the Tribunal. That complaint was also the basis for an assertion of denial of procedural fairness. Their Honours noted the finding of the primary judge at [80], …an applicant is not entitled to ask whatever question he or she thinks appropriate; the Deputy President had the power to disallow irrelevant, or otherwise objectionable, questions.

Their Honours concluded that Mr Kowalski’s ground of bias (or perversion of the course of justice, which seems to be to the same effect) was misconceived.

Formal decision

Mr Kowalski’s appeal was dismissed with costs.

All Practice Notes