Kowalski v Military Rehabilitation and Compensation Commission [2011] FCAFC 44

FEDERAL COURT OF AUSTRALIA

Kowalski v Military Rehabilitation and Compensation Commission [2011] FCAFC 44 Citation: Kowalski v Military Rehabilitation and Compensation Commission [2011] FCAFC 44

Appeal from: Kowalski v Military Rehabilitation and Compensation Commission [2010] FCA 408

Parties: KAZIMIR KOWALSKI v MILITARY REHABILITATION AND COMPENSATION COMMISSION

File number: SAD 56 of 2010

Judges: DOWSETT, COWDROY AND LOGAN JJ

Date of judgment: 28 March 2011

Catchwords: DEFENCE AND WAR – appeal from a decision of a single Judge of the Federal Court of Australia affirming a decision of the Administrative Appeals Tribunal, which had affirmed an earlier decision of the Military Rehabilitation and Compensation Commission to reject a claim for compensation – whether the primary Judge erred in law in relation to his findings – no error disclosed EVIDENCE – new evidence – whether new evidence ought to be admitted at the hearing on the basis that it may provide grounds for the reassessment of which Act is applicable to the claim – whether the Administrative Appeals Tribunal was under a duty to inquire and thus erred in failing to make an inquiry regarding such material – whether such inquiry was obvious, and in relation to a critical fact, the existence of which was easily ascertained

Legislation: Administrative Appeals Tribunal Act 1975 (Cth) ss 40, 43, 44 Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 4(1), 7(4), 14, 57, 124 Compensation (Commonwealth Government Employees Act 1971 (Cth) ss 5(11)(a), 28, 29(1), 29(2) Migration Act 1958 (Cth) s 427, 427(1)(d) Safety, Rehabilitation and Compensation and Other Legislation Amendment Act 2007 (Cth) Judiciary Act 1903 (Cth) s 39B