Kowalski v Superannuation Complaints Tribunal

REASONS FOR JUDGMENT 1 The application seeks leave to appeal from a decision of Besanko J given on 9 December 2009. His Honour dismissed a notice of motion of the application in a proceeding (the principal proceeding) that he disqualify himself from hearing and determining it: Kowalski v Superannuation Complaints Tribunal [2009] FCA 1466. 2 The application for leave to appeal is a fall back position of the applicant. The document he filed following that decision is headed "Notice of Appeal". It seeks leave to appeal only if the decision is an interlocutory one. It clearly is. The decision did not finally decide the rights of the parties on the issue between them: see Wills v Australian Broadcasting Corporation (2009) 173 FCR 284; Kowalski v Military Rehabilitation and Compensation Commission [2010] FCA 5. Section 24(1A) of the Federal Court of Australia Act 1976 (Cth) (the FCA Act) imposes the requirement for leave to appeal in the present circumstances, because it is an interlocutory judgment. 3 There is a further preliminary matter to address. In his "Notice of Appeal", the applicant says that, if leave to appeal is necessary, he seeks "Leave to Appeal from [sic, to] the Full Court of the Federal Court." He argues that his application for leave to appeal cannot therefore be dealt with by a single judge of the Court and should not have been listed before a single judge of the Court. That is wrong. Section 25(2) of the FCA Act provides that applications for leave or special leave to appeal to the Court may be heard and determined by a single judge or by a Full Court. Order 52 r 2AA provides that an application for leave to appeal as mentioned in s 25(2) of the FCA Act must be heard and determined by a single Judge unless a judge directs that the application be heard and determined by a Full Court. There is an additional qualification which is not relevant to the present application. 4 That Rule, which was introduced in 2005, reflects the earlier practice of the Court that it was up to the single judge before whom the matter is listed to decide whether to determine the application for leave to appeal or to refer the application for leave to appeal to a Full Court: WATI v Minister for Immigration and Multicultural Affairs (1997) 78 FCR 543 at 554; Minister for Immigration and Multicultural and Indigenous Affairs v WAKX [2005] FCA 227. Prior to that Rule, an applicant "electing" to have an application for leave to appeal dealt with by the Full Court was treated merely as a request for that to occur; Kristofferson v Department of Employment, Workplace Relations and Small Business [2002] FCAFC 269 at [13] per Drummond J (Cooper and Dowsett JJ agreeing). 5 The discretion whether or not to grant leave to appeal is an unfettered one, but it is generally accepted that the Court should consider whether in all the circumstances the decision is attended with sufficient doubt to warrant it being reconsidered, and whether substantial injustice would result if leave to appeal were refused, supposing the decision to be wrong: Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 at 398-399. On the hearing of this application, the applicant did not suggest any other factors of significance to the exercise of the discretion. 6 The principal proceeding is an appeal pursuant to s 46 of the Superannuation (Resolution of Complaints) Act 1993 (Cth) against a decision of the Superannuation Complaints Tribunal. Such an appeal is limited to an appeal on a question of law. The Superannuation Complaints Tribunal, by decision notified to the applicant on 9 November 2009, indicated that it did not consider it had jurisdiction to hear and determine his complaint. Its letter relevantly states: The Tribunal has considered your arguments and must confirm that it does not have jurisdiction to deal with your complaint. Firstly, the Tribunal notes that you have not provided any evidence to support your allegation that the decision made on 18 August 1992 to decline your disability claim was not in respect of your membership in the Mitsubishi Motors Australia Staff Superannuation Fund. As advised in the Tribunal's letter dated 25 September 2009, you were advised in each of your previous complaints (SCT file numbers 99-C0903/1 & 03-01486) that the Tribunal is prevented by section 14(6A) of the Superannuation (Resolution of Complaints) Act 1993 (SRC Act) from dealing with your complaints because the Trustee's decision was made prior to 1 November 1994. The effect of sections 14(6C) and 14(6D) of the SRC Act, is that, where more than one decision has been made by a Trustee in regards to a TPD benefit, the date of the decision for the purposes of section 14(6A) is that of the original decision. Section 14(6C) specifies that the decision for the purposes of section 14(6A) is the original decision. Section 14(6D) further specifies that, where a later decision has been made as a result of a complaint about the original decision, the new decision is taken to have been made at the time when the original decision was made. 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. I make no comment upon the correctness or otherwise of that decision of the Tribunal, or of the applicant's prospects of successfully appealing from its decision. Subject to the present application, that is a matter which will be decided by Besanko J as the docket judge in due course. 7 As noted, by motion of 4 November 2009 the applicant applied to Besanko J to disqualify himself from hearing the principal proceeding. Before addressing the matters raised before Besanko J, and whether leave to appeal should be given from his Honour's decision not to disqualify himself, it is convenient to note briefly the relevant principles. 8 The test of whether a judge should disqualify himself or herself from hearing a matter by reason of an appearance of bias is whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide: Johnson v Johnson (2000) 201 CLR 488 at 492. That decision reflects the earlier decision in Livesey v The New South Wales Bar Association (1983) 151 CLR 288 (Livesey) where it was said at 293-294: [The] principle is that a judge should not sit to hear a case if all the circumstances the parties or the public might entertain a reasonable apprehension that he might not bring an impartial and unprejudiced mind to the resolution of the question involved in it. If a judge has expressed clear views about a question of fact that constitutes a significant issue in a subsequent case, or about the credit of a witness whose evidence is of significance on such a question of fact in the subsequent case, there may be a reasonable apprehension of bias: see Livesey at 300. 9 There were five arguments addressed to Besanko J on the application. They were adopted on this application, with more emphasis on some than others. I shall address them in turn. 10 First it was argued that his Honour had such an involvement in earlier decisions that he should not hear the principal proceeding (or, by inference any other matters in which the applicant is a party.) His Honour noted at [9] that there was no issue in the principal proceeding which overlapped with any issue in any previous decision in which the applicant had been a party and which had been decided by his Honour. The Superannuation Complaints Tribunal had not been a party to any of those earlier decisions. That is clearly correct. The applicant, in his written and oral contentions, did not seek to contradict that conclusion. It is not necessary to refer in detail to the earlier decisions in which the applicant was a party and in which his Honour has given judgment. They are listed in his Honour's reasons. As his Honour said, none of them concern the issue as to the jurisdiction of the Superannuation Complaints Tribunal to deal with the particular complaint which the applicant was seeking to have the Tribunal address. His Honour has not decided that issue in earlier proceedings. 11 Secondly, the applicant argued before Besanko J that his Honour should disqualify himself because, on 22 December 2008, he had refused to adjourn a different proceeding whilst the applicant sought leave to appeal from his Honour's refusal to disqualify himself from deciding that matter, and then subsequently had decided adversely to the applicant. The respondent in that matter was the Repatriation Commission. Kowalski v Repatriation Commission [2008] FCA 1970 is the judgment dealing with the disqualification application, and Kowalski v Repatriation Commission [2009] FCA 794 is the final decision. Neither of those decisions involved a question of law as to the jurisdiction of the Superannuation Complaints Tribunal and neither is in any sense indicative of his Honour having possibly made up his mind on the question of law which arises in the principal proceeding. The applicant also said the order for costs made against him, as the unsuccessful litigant, when judgment was delivered in that matter also indicated prejudgement because he was not present at the time. Besanko J rejected that 'contention.' His Honour noted that the applicant was notified of the time and place for the delivery of judgment but did not attend. That is not a reason for considering that his Honour would not apply an independent mind to the principal proceeding. 12 Thirdly, the applicant argued that his Honour should have disqualified himself because, in a further earlier decision concerning issues between the applicant and Mitsubishi Motors Australia Ltd, his Honour on 4 December 2008 refused to disqualify himself and made an order for costs against the applicant: Kowalski v Mitsubishi Motors Australia Ltd [2008] FCA 1873. The applicant complained that that respondent at that time had not sought costs, and so the making of the order for costs was indicative of bias. His Honour had rejected that argument because it was unfounded; Kowalski v Repatriation Commission [2008] FCA 1970 at [4]-[5]. On this application, again, the applicant did not seek to controvert that conclusion. 13 The applicant further argued that his Honour should have disqualified himself because, the earlier order for costs referred to in the preceding paragraph, was made when his Honour was aware that that respondent was a wrongdoer. That argument was developed on this application, but covered a much broader canvas. In fact, in respect to the various earlier proceedings determined by Besanko J, in which the applicant has been an unsuccessful party, the applicant asserts that Besanko J was aware that the successful respondent in each instance was a wrongdoer and that his Honour has therefore condoned wrongdoing on the part of those respondents. The premise of the argument by the applicant is incorrect. The outcome of those decisions, and the judge's reasoning, does not support either the proposition that all those respondents or any of them were wrongdoers, or that Besanko J gave judgment in their favour in any of those matters having found that they were wrongdoers. The contrary is the case. There is no merit in that contention. 14 Finally, the applicant asserted that, because Besanko J had disqualified himself from hearing a particular matter by judgment given on 17 September 2009: Kowalski v Military Rehabilitation and Compensation Commission [2009] FCA 1044, his Honour should not now hear any further proceedings involving the applicant. The reason that his Honour disqualified himself in that matter is explained in [23] of the decision where his Honour said: 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. There was a particular fact in issue in that matter, which might possibly have exposed his Honour to confronting a finding that he had accepted, and in which he had proceeded in an earlier decision in Kowalski v Repatriation Commission [2009] FCA 794, which may have arisen in the subsequent proceeding. The subsequent proceeding has since been heard by another judge, but judgment has not yet been delivered. Neither proceeding included an issue whether the Superannuation Complaints Tribunal, by finding that it did not have jurisdiction to hear and determine the applicant's complaint, erred in law. The mere fact that Besanko J disqualified himself in those circumstances does not indicate in any degree that his Honour is unable to bring to the determination of the principal proceeding an independent and impartial mind. 15 Accordingly, I have reached the view that his Honour's decision to refuse to disqualify himself in the principal proceeding is not attended with sufficient doubt to warrant it being reconsidered. The applicant has not identified any reasonably arguable proposition to the contrary. I do not think that the view taken by Besanko J on the issue is debateable. 16 In any event, I would refuse leave to appeal in the particular circumstances. The hearing of the principal proceeding will be short. The issue of law concerns the jurisdiction of the Superannuation Complaints Tribunal. It does not overlap with any previous decision of his Honour. It is important that the Court should avoid unnecessary multiplicity of appeal proceedings: see Johnson Tiles Pty Ltd v Esso Australia Ltd (2000) 104 FCR 564 at [42]. If the applicant is unsuccessful in the principal proceeding, and chooses to exercise his right of appeal from that decision, it is open to the applicant then to renew his complaint that Besanko J should have disqualified himself from hearing and determining that proceeding at all. In other words, by refusing leave to appeal on this interlocutory issue, he is not prevented subsequently by appeal from ventilating the same matter if he does not succeed on the principal proceeding. Given the nature of the appeal, the likelihood is that it will soon be dealt with, and that the hearing will not be prolonged. In my view, therefore, in any event it would be appropriate to refuse leave to appeal rather than potentially to permit a multiplicity of proceedings. 17 For those reasons, the application is refused. I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Mansfield.