Kowalski v Superannuation Complaints Tribunal

REASONS FOR JUDGMENT 1 This proceeding was instituted by notice of appeal dated 13 October 2009. In the proceeding, Mr Kazimir Kowalski appeals against a decision of the Superannuation Complaints Tribunal ("the Tribunal"). He alleges that the Tribunal made a decision unfavourable to him and that that decision contains errors of law. 2 Mr Kowalski brings his appeal pursuant to s 46 of the Superannuation (Resolution of Complaints) Act 1993 (Cth) ("the Act"). The appeal under that section is limited to an appeal on a question of law from a determination of the Tribunal. Section 46(3) provides that this Court is to hear and determine an appeal under the section and may make such order as it thinks appropriate. Section 46(4) provides that, without limiting the generality of subs (3), the orders that may be made by this Court on an appeal include an order affirming or setting aside the determination of the Tribunal and an order remitting the matter to be determined again by the Tribunal in accordance with the directions of the Court. 3 The Tribunal has lodged an appearance in which it submits to the jurisdiction of the Court, save and except in relation to costs. AMP Superannuation Limited has filed a conditional appearance. 4 The decision made by the Tribunal was that it did not have jurisdiction to deal with Mr Kowalski's complaint. On 9 October 2009, the Tribunal wrote to Mr Kowalski explaining the reasons for its decision. The letter relevantly states: "The Tribunal has considered your arguments and must confirm that it does not have jurisdiction to deal with your complaint.

In your case, the original decision was made on 18 August 1992. As described above, for the purposes of section 14(6A), any later decisions are taken to have been made on the same date, ie 18 August 1992. On this basis, section 14(6A) precludes the Tribunal from dealing with your complaint because the Trustee's decision was made prior to 1 November 1994." 5 On 5 November 2009, Mr Kowalski filed a notice of motion in this proceeding in which he seeks an order that I disqualify myself from any further involvement in this proceeding. His notice of motion is supported by an affidavit sworn by him on 4 November 2009. He has since filed written submissions and a further affidavit sworn by him on 6 November 2009. 6 The background to the applicant's application is as follows. 1. The applicant asked me to disqualify myself in Kowalski v Mitsubishi Motors Australia Ltd (SAD 171 of 2008) ("Kowalski v Mitsubishi Motors"). On 4 December 2008, I refused to disqualify myself: Kowalski v Mitsubishi Motors Australia Ltd [2008] FCA 1873. On that day, I made an order that the applicant pay the respondents' costs of the hearing on 24 November 2008 and the outline of submissions dated 24 November 2008. I did not include in my order as to costs the costs of the hearing on 4 December 2008. My order as to costs followed a submission by counsel for the respondent on 4 December 2008 wherein she said: "Your Honour may decide not to order costs in relation to today, given that the matter is listed for directions on other matters as well." 2. Mr Kowalski asked me to disqualify myself in Kowalski v Repatriation Commission (SAD 168 of 2008) ("Kowalski v Repatriation Commission"). On 22 December 2008, I refused to disqualify myself: Kowalski v Repatriation Commission [2008] FCA 1970. 3. I heard the appeal in Kowalski v Repatriation Commission on 22 January 2009. 4. I heard applications in Kowalski v Mitsubishi Motors on 16 March 2009. 5. I delivered my decision in Kowalski v Repatriation Commission on 30 July 2009: Kowalski v Repatriation Commission [2009] FCA 794. 6. I conducted a further hearing of the applications in Kowalski v Mitsubishi Motors on 18 August 2009. 7. I delivered my decision in Kowalski v Mitsubishi Motors on 3 September 2009: Kowalski v Mitsubishi Motors Australia Limited [2009] FCA 991. In my reasons, I dealt with a further application made by Mr Kowalski that I disqualify myself in that proceeding. I again refused to disqualify myself. 8. Mr Kowalski asked me to disqualify myself in Kowalski v Military Rehabilitation and Compensation Commission (SAD 75 of 2009) ("Kowalski v Military Rehabilitation and Compensation Commission"). I disqualified myself in that appeal and I delivered reasons for my decision on 17 September 2009: Kowalski v Military Rehabilitation and Compensation Commission [2009] FCA 1044. In the course of my reasons I said (at [23]): "I recognise that I did not make any findings of fact in Kowalski v Repatriation Commission [2009] FCA 794. The nature of the appeal and the merits meant that I was not required to do that. Nevertheless, I dealt with the matter, having regard to facts found by Deputy President Jarvis and at least one of those facts is in issue in the present proceeding. I recognise that the present appeal is limited to an appeal on a question of law, although this Court may make findings of fact in certain circumstances. To my mind, the question of whether I should disqualify myself in the present proceeding is borderline, but, in view of a common factual background and the matters the appellant seeks to agitate, I think it is appropriate that I do so." 7 Mr Kowalski's arguments focused on particular decisions I have made in proceedings in this Court. Those matters are addressed below at [10]-[14]. However, I have also considered whether, because of my involvement in various proceedings in this Court and in the Supreme Court of South Australia, I should disqualify myself for bias by reason of prejudgment. The nature of the proceedings and the claims made in them are described in the various judgments to which I have referred. 8 The relevant principles are set out in the authorities. For present purposes, it is sufficient for me to refer to Livesey v The New South Wales Bar Association (1983) 151 CLR 288; Cadbury Schweppes Pty Ltd v Darrell Lea Chocolate Shops Pty Ltd [2009] FCAFC 8. In the latter case, I summarised the relevant principles at [120]-[123]. 9 The issues in this appeal seem to be legal issues relating to the Tribunal's jurisdiction to deal with Mr Kowalski's complaint. No overlap between any issue in this appeal and an issue in any previous decision of mine involving Mr Kowalski has been identified. I see no reason to disqualify myself based on my involvement in previous proceedings in this Court or in previous proceedings in the Supreme Court of South Australia involving Mr Kowalski (see Kowalski v Mitsubishi Motors Australia Limited [2008] FCA 1873 at [1], [5] and [6] for a summary of the proceedings in the Supreme Court). 10 Mr Kowalski identified certain particular decisions I have made in the proceedings in this Court which, he argued, showed bias on my part. I have considered the question from the perspective of both actual or apparent bias. 11 First, he argued that I should disqualify myself because, on 22 January 2009, I refused to adjourn his appeal in Kowalski v Repatriation Commission until he could appeal from my decision not to disqualify myself on the grounds of bias. That is a decision which was unfavourable to Mr Kowalski, but is not a decision indicative of bias. He also argued that I fabricated my decision when I dismissed his appeal in Kowalski v Repatriation Commission. I make the same comment. He also argued that when I handed down my decision in Kowalski v Repatriation Commission on 30 July 2009, I said that I would hear the parties on the question of costs and then I failed to hear him in breach of the rules of procedural fairness. There is no substance in this argument. When I handed down my decision on 30 July 2009, Mr Kowalski was not present. He had been given notice of the date and time of hearing. The respondent applied for costs on the basis that it had been the successful party and I made an order in its favour. 12 Secondly, Mr Kowalski argues that I made an order for costs against him in Kowalski v Mitsubishi Motors on 4 December 2008, in circumstances where the respondent did not seek an order for costs against him. This conduct was said to be indicative of bias. This argument has been raised before. There is no substance in the argument (see Kowalski v Repatriation Commission [2008] FCA 1970 at [4]-[5]). 13 Thirdly, Mr Kowalski argues that I should not have made an order for costs against him on 4 December 2008 because I was aware that the respondent was a wrongdoer. There is no substance in the argument that I should disqualify myself on that ground. 14 Finally, Mr Kowalski argues that, having decided to disqualify myself in Kowalski v Military Rehabilitation and Compensation Commission, I then perverted the course of justice by delivering a "fabricated, false and misleading decision" in respect to that Federal Court action. There is no substance in the argument that I should disqualify myself on this ground. I delivered reasons for disqualifying myself in that proceeding (Kowalski v Military Rehabilitation and Compensation Commission [2009] FCA 1044). I have not delivered any other decision in that proceeding. 15 I decline to disqualify myself, and Mr Kowalski's notice of motion dated 4 November 2009 is dismissed. I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Besanko.

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