Kowalski v Chief Executive Officer of Medicare Australia

REASONS FOR JUDGMENT 1 The applicant in this proceeding unsuccessfully sought an extension of time within which to seek review by the Administrative Appeals Tribunal (the Tribunal) from a purported decision of the Chief Executive Officer of Medicare Australia (the CEO) arising from a communication which the applicant received from the CEO on 30 July 2009. The Tribunal on 16 December 2009 refused that application. The applicant has appealed to the Court from that decision under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth). 2 Before the matter came to be heard, the applicant applied to Lander J, who was the docket judge, that he should recuse himself from hearing the appeal by reason of findings Lander J had made when sitting as a Deputy President of the Tribunal in a decision given on 21 January 2009: Kowalski v Military Rehabilitation and Compensation Commission [2009] AATA 38. On 16 March 2009, Lander J decided that he should recuse himself from hearing and determining the appeal because of findings made in that earlier matter. 3 The applicant then applied for costs of the recusal application. Lander J declined to make any order for costs, in effect declining to entertain the application for costs, because he had already disqualified himself from hearing the application. Apart from declining to deal with the costs application because he had recused himself, his Honour gave two further reasons why no order for costs should be made. The first is simply that the appeal had not been resolved, and apart from him recusing himself, no order has been made in the appeal which would justify making an order for costs against the respondent. That is self evident. As his Honour said, a judge recusing himself at the behest of one litigant does not routinely entitle that litigant to an order for costs against the other litigant. That is particularly so where the other litigant has simply adopted a neutral attitude on the recusal application. Secondly, Lander J pointed out that the applicant in any event would not be entitled to costs because, as an unrepresented party, he had not incurred any costs, nor had he incurred any expenses by reason of the application. Lander J said he is not entitled to be compensated for any expenses outside the litigation. He referred to observations of the High Court (Mason CJ, Brennan, Deane, Dawson and McHugh JJ) in Cachia v Hanes (1993) 179 CLR 403 at 410-411. 4 This application is for leave to appeal from the "order" made by Lander J refusing to deal with the application for costs on the recusal application. 5 I shall assume in favour of the applicant that the ruling of Lander J to recuse himself from hearing the appeal, including declining to make an order for costs, was an order of the Court. At best, a judge's decision to recuse himself or herself is an interlocutory order in respect of which leave to appeal is required. His Honour's declining to entertain and to determine any application for costs of and in relation to the recusal application is equally in the circumstances at best an interlocutory ruling. There is no doubt that leave to appeal from that ruling is required: see s 24(1A) of the Federal Court of Australia Act 1976 (Cth). It is clearly interlocutory because it did not finally determine the rights of any party. The fact that Lander J declined to make a ruling on the application for costs of the recusal application because his Honour had decided that he should not entertain the application at all on the ground of ostensible bias did not finally determine whether the applicant was entitled to any costs of that application. That is a matter which can be dealt with by the judge who ultimately hears and determines the appeal. Apart from having his application acceded to, the applicant is in no worse or no better position on the question of costs, to the extent that any recoverable costs were incurred on the recusal application, than he would have been before that application.