Case: Twist v The Council of the Municipality of Randwick [1976] HCA 58 ; (1976) 136 CLR 106
Outcome: cited
Kowalski says that the primary judge failed to allow him to make oral submissions before dismissing his appeal against the Tribunal decision. Mr Kowalski states that he did not have an opportunity to make oral submissions, contrary to Twist v The Council of the Municipality of Randwick [1976] HCA 58 ; (1976) 136 CLR 106. He says that as a litigant in person, he should have been treated differently. Medicare contends that, at the directions hearing of 4 August 2009, both parties agreed to the primary judge hearing the appeal ' on the papers ' and that Mr Kowalski raised no objection to the absence of an oral hearing. Medicare says that Mr Kowalski only took exception to the course adopted by his Honour after judgment was handed down on 23 September 2009. The transcript of the relevant directions hearing before the primary judge is in evidence. During the hearing, the following exchange took place: His Honour: ....All right. Now, how do you want your appeal to proceed? Mr Kowalski: Well, I want it to proceed on papers His Honour: Okay, that's fine. What I'll do then is the following:... The primary judge then made directions, including for the filing of further affidavit evidence and written submissions by Mr Kowalski, taking into account Mr Kowalski's request for the time he required. His Honour then said: All right. 4. Direct notice of motion to be heard and determined on the papers. 5. Liberty to apply. So after 19 August I will consider all the material that's before me and I'll give you a ruling Mr Kowalski responded: Thank you, your Honour . Both Mr Kowalski and Medicare have referred to a number of decisions in which Mr Kowalski was a party and appeared for himself. It is apparent that, while Mr Kowalski is not legally represented and was not legally represented before the primary judge, he is not unfamiliar with court proceedings. To the extent that the question whether the parties would be content to have the primary judge deal with the matter ' on the papers ', his Honour was entitled to assume that Mr Kowalski understood what that meant. Mr Kowalski does not say that he questioned what that expression meant at the relevant time and, indeed, he used it himself. It is apparent to me after hearing Mr Kowalski present his application for leave to appeal that he is not reticent in making statements or asking questions if he feels the need to do so. In circumstances where the matter was raised clearly at the directions hearing, and that his Honour did not, on that occasion, fix the matter for an oral hearing, the course of conduct being addressed should have been apparent to Mr Kowalski. I see no denial of procedural fairness or of natural justice in the primary judge proceeding to do what he told the parties he would do, that is, to decide the matter on the papers. It is clear from his Honour's reasons that he gave full consideration to the subject matter before him. There is no basis for Mr Kowalski's claim that he was denied natural justice or procedural fairness by the primary judge. Alleged bias or reasonable apprehension of bias