Kowalski v Military Rehabilitation and Compensation Commission

REASONS FOR JUDGMENT 1 This is an application for leave to appeal from parts of the decision of the Court (Besanko J) in a ruling in Kowalski v Military Rehabilitation and Compensation Commission [2009] FCA 1044. That ruling related to an application made by the applicant that Besanko J disqualify himself from further involvement in that proceeding. His Honour decided that it was appropriate that he disqualify himself from further involvement in that proceeding, and gave reasons for so doing. 2 The principal proceeding is an appeal from a decision of the Military Rehabilitation and Compensation Commission rejecting the applicant's claim that the condition of gastro-oesophageal reflux disease was caused by or contributed to by his service in the Australian Army. That appeal has now been heard and judgment reserved. 3 The present application is a somewhat curious one. That is simply because Besanko J acceded to the application that he disqualify himself from hearing the principal application, yet now the applicant seeks leave to appeal from that ruling in his favour. The applicant's concern in reality is that, at the time of the ruling, no order for costs and disbursements was made in his favour. In addition, the applicant seeks to complain about a number of observations made by Besanko J in the course of his reasons for his ruling. They are set out in paragraphs 2.2 to 2.10 of the purported notice of appeal. The ruling is clearly interlocutory. It does not finally decide the issues in the proceeding: Wills v Australian Broadcasting Corporation [2009] FCAFC 6; (2009) 253 ALR 228. I have treated the purported notice of appeal as an application for leave to appeal. That document includes, in the orders sought, an order for leave to appeal if the ruling "is an interlocutory decision". It is self-evidently so. It would not have been inappropriate for the Registry to require the applicant to retitle the document as "Application for Leave to Appeal" before accepting it for filing. It nevertheless granted him the indulgence of allowing the filing of the document as presently titled. 4 There are two matters which require comment before dealing with the merits of the application itself. 5 The first concerns the applicant's wish to have the application determined by a Full Court. Section 25(2)(a) of the Federal Court of Australia Act 1976 (Cth) (the FCA Act) provides that applications for leave to appeal may be heard and determined by a single Judge or by a Full Court. Order 52 r 2AA of the Federal Court Rules provides: An application mentioned in subsection 25 (2) of the Act mustbe heard and determined by a single Judge unless: (a) a Judge directs that the application be heard anddetermined by a Full Court; or (b) the application is made in a proceeding that has alreadybeen assigned to a Full Court, and the Full Court considersit is appropriate for it to hear and determine theapplication. 6 Order 52 r 2AA was introduced on 4 August 2005 and amended on 27 July 2006. It makes it clear that the present application may be heard and determined by a single Judge. Insofar as the applicant seeks to have the present application ventilated before the Full Court, that part of the application is refused. There is no good reason to make such an order. If there is merit in the present application, leave to appeal will be granted and the issues heard by a Full Court. I use "merit" in the sense of applying the accepted principles to the application. Those principles are clear: Décor Corp Pty Ltd v Dart Industries Inc (1991) 33 FCR 397. They generally are whether in all the circumstances the decision is attended by sufficient doubt to warrant its being reconsidered by a Full Court, and whether substantial injustice would result if leave were refused, supposing the decision to be wrong. 7 The second concerns the applicant's desire to have rectified various observations of Besanko J made during the course of his Honour's reasons. The Court has jurisdiction under s 24(1)(a) of the FCA Act to hear and determine appeals from judgments of a single Judge of the Court. "Judgment" is defined in s 4 of the FCA Act to encompass judgments, decrees or orders. There may be some scope for there to be an appeal where the operative order (in this case, the Judge's decision to disqualify himself from hearing the principal proceeding) has embedded within it a determination which provides the only basis for the operative order: see per Mansfield and McKerracher JJ in Sellick v Australian Postal Corporation [2009] FCAFC 146 at [5]. None of the matters raised by the applicant in paragraphs 2.2 to 2.10 or in paragraphs 4.2 to 4.10 of the purported notice of appeal get near to having that character. In a number of instances, they are observations explaining why the ruling was made or describing the Judge's assessment of materials before him. They are not observations which will preclude the applicant on the hearing of the principal proceeding from pursuing such contentions as he wishes to make about those topics. His conduct of the principal proceeding will be unimpaired. They do not decide issues adversely to him in any formal or final way. In other instances, for example describing the issue being addressed as "borderline", they are merely steps in the process of reasoning. They are not themselves the judgment from which an appeal - subject to leave - may be brought. 8 I return to consider the application itself. 9 As noted, the present application for leave to appeal does not seek to overturn the substantive decision by his Honour to disqualify himself, but rather seeks an order for costs of the successful application before his Honour to disqualify himself. The orders sought on the present application are that leave to appeal be granted, and that ultimately that the appeal be allowed, and that Justice Besanko's decision be corrected and an order be made that the respondent pays to the appellant all of his costs and disbursements of and incidental to his application for Justice Besanko to disqualify [himself]. The applicant also seeks the costs of and incidental to the present application on an indemnity basis. 10 The applicant alleges that Besanko J erred in not making an order for costs and disbursements of and incidental to the application for his Honour to disqualify himself. The applicant did not make any such application for costs at the time of the hearing of the application before Besanko J to disqualify himself. Nor is there any material to show that the applicant has incurred costs or disbursements of any substance by reason of his application. He is a litigant acting in person. He is not entitled to legal costs unless they have been actually incurred; there is nothing to suggest that he has incurred any such costs to a legal practitioner. He has not identified any disbursements incurred by him. In any event, and more importantly, if there are such disbursements (or costs incurred to a legal practitioner), such costs can be dealt with when the principal proceeding is heard and determined. 11 In my view, the ruling of his Honour, including the absence of any order for costs, is not attended by sufficient doubt to warrant being reconsidered by the Full Court. Nor would any substantial injustice result if leave to appeal were refused. The applicant is entitled to seek his costs of the application before Besanko J in the substantive proceedings, which have now been heard. Nor is there any other judgment, decree or order of the Court in respect of which an application for leave to appeal could or should be granted. Therefore, it is not appropriate to grant leave to appeal from the decision of Besanko J. The application for leave to appeal is refused. I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Mansfield.