Case: Kowalski v Repatriation Commission [2008] FCA 1970
Outcome: cited
late 2008 and early 2009, I was also dealing with another proceeding involving the applicant. That proceeding involved an appeal by the applicant under s 44(1) of the Administrative Appeals Tribunal Act 1975 (Cth) ("AAT Act") against a decision of the Administrative Appeals Tribunal. On 8 December 2008, the applicant made an application that I disqualify myself from further involvement in that proceeding. I refused the application: Kowalski v Repatriation Commission [2008] FCA 1970. The grounds of the application and the reasons I refused it are set out in my reasons. I proceeded to hear his appeal on the substantive proceeding. On 30 January 2009, Mansfield J refused the applicant's application for leave to appeal from my decision: Kowalski v Repatriation Commission [2009] FCA 47. The applicant claims that when, on 4 December 2008, I dismissed his first application in this proceeding that I disqualify myself for bias, I made an order for costs against him, even though "the respondent did not seek an order for costs against [him]" and by making the order I was assisting a wrongdoer and a party who had committed a criminal offence. The applicant claims that that conduct is indicative of bias. That contention is untenable. I refer to my reasons in Kowalski v Repatriation Commission [2008] FCA 1970 at [4] - [5] which deals with the same contention made in that case. The applicant's application by notice of motion dated 4 August 2009 is dismissed. In the second notice of motion brought by the applicant after I had reserved my decision on the two notices of motion referred to in [2]-[6] above, that being a notice of motion dated 18 July 2009, the applicant seeks various declarations in the proceeding. The declarations he seeks in the notice of motion are as follows, relevantly: On 27 October 1998 the respondent agreed to pay the defendant and his wife compensation, in the sum of $125,308.57, for the defendant's December 1986 eye injury, May 1998 middle finger injury, May 1989 back and or left leg injury, August 1991 stress or mental breakdown and December 1997 heart attack. On 27 October 1998 the defendant entered into Heads of Agreement with the defendant and his wife without the consent of the WorkCover Corporation of South Australia. On 27 October 1998 the defendant did not make a capital payment to the plaintiff or his wife which had redeemed the defendant's statutory liability to the plaintiff, to make weekly payments of compensation to the plaintiff, compensation under section 32 of the Workers Rehabilitation and Compensation Act 1986 (SA) (the Act) or a capital payment for the loss of the plaintiff's future earning capacity. On 27 October 1998 the plaintiff did not receive competent professional advice about the consequences of the plaintiff and his wife entering into the Heads of Agreement with the defendant. On 27 October 1998 the plaintiff did not receive competent financial advice about the investment or use of the money that he and his wife was going to receive from the defendant as a consequences [sic] of entering into the Heads of Agreement. On 27 October 1998, before the defendant entered into the Heads of Agreement with the plaintiff and his wife, the defendant did not consult with the WorkCover Corporation about the terms of the Heads of Agreement. On 27 October 1998 the defendant did not ensure that a recognized medical expert certified that the extent of the plaintiff's incapacity, resulting from his December 1986 eye injury, May 1998 middle finger injury, May 1989 back and or left leg injury, August 1991 stress or mental breakdown and December 1997 heart attack, could be determined with a reasonable degree of confidence."