Kowalski v Repatriation Commission

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 be granted in this matter on the motion. 6 It is plain enough that if a judge rejects a disqualification application and ultimately gives judgment against the applicant, the applicant can appeal against the orders made on the ground that the disqualification application was wrongly rejected. So much was decided by Gummow and Heerey JJ in Gas & Fuel Corp Superannuation Fund v Saunders (1994) 52 FCR 48. 7 It will not be in every case that it is appropriate to decline to grant leave to appeal from a decision (assuming an order is made from which an appeal might be brought) of a judge refusing to disqualify himself or herself on the ground of bias or apparent bias, because there is ultimately a right of appeal on the same ground if the matter proceeds to hearing and is decided adversely to the applicant. That will depend upon the particular circumstances. In many instances it will be inconvenient or inappropriate and contrary to the expeditious administration of justice to decline to grant leave to appeal from an order refusing a disqualification simply because all questions at issue may be determined on appeal after final judgment: see discussion in R v Watson; Ex parte Armstrong (1976) 136 CLR 248 at 266 and in Barton v Walker [1979] 2 NSWLR 740 at 751. 8 In this matter, however, the appeal itself has been heard and judgment reserved. There is no reason to think that the judgment will not itself be delivered in a timely manner. There is no reason why in those circumstances that the expeditious administration of justice would warrant an independent appeal by leave on one aspect of the decision-making process when, if the applicant is unsuccessful, all aspects of that decision may be the subject of an appeal, including the decision of the Judge not to disqualify himself. In my view that is an overwhelming reason why leave to appeal should be refused in the particular circumstances. 9 The points which the applicant has raised in his submissions to demonstrate bias or an appearance of bias have not been overlooked. I do not think it is necessary to deal with them in this matter because those same points, if valid, could be raised in any appeal from the final decision of the Judge on the appeal from the AAT. I do not see now, given the events which have happened, any prejudice will be suffered by the applicant in having that opportunity at a later point in time (but relatively soon) rather than giving him leave to appeal on his present motion. 10 For those reasons, I refuse the motion for leave to appeal in this matter. The applicant has submitted that no orders for costs should be made because the principal proceeding is an appeal from the AAT and, because there are no costs orders able to be made in the AAT, the Court has no power to make an order for costs in proceed. I reject that submission. In my view, it is plain by s 43 of Federal Court of Australia Act 1976 (Cth) that the Court has the power. I will maintain the order for costs that I anticipated I would make. I order that the costs on the motion for leave to appeal be the respondent's costs in the principal proceeding. That is, if the appeal is unsuccessful, the costs of the motion will be the respondent's costs in any event.