FEDERAL COURT OF AUSTRALIA Kowalski v Military Rehabilitation and Compensation Commission [2009] FCA 1044 KAZIMIR KOWALSKI v MILITARY REHABILITATION AND COMPENSATION COMMISSION SAD 75 of 2009 BESANKO J 17 SEPTEMBER 2009 ADELAIDE IN THE FEDERAL COURT OF AUSTRALIA SOUTH AUSTRALIA DISTRICT REGISTRY GENERAL DIVISION SAD 75 of 2009 ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL BETWEEN: KAZIMIR KOWALSKI Applicant AND: MILITARY REHABILITATION AND COMPENSATION COMMISSION Respondent JUDGE: BESANKO J DATE: 17 SEPTEMBER 2009 PLACE: ADELAIDE REASONS FOR RULING 1 This is an application by the applicant that I disqualify myself from further involvement in this proceeding. The proceeding is an appeal under the Administrative Appeals Tribunal Act 1975 (Cth) from a decision of the Administrative Appeals Tribunal ("the Tribunal"). Such an appeal is limited to an appeal on a question of law (s 44(1)) and there is a limited power in this Court to make findings of fact (s 44(7)). 2 I have decided that it is appropriate that I disqualify myself from further involvement in this proceeding. Ordinarily, such a decision, as distinct from a decision to disqualify, would not call for detailed reasons. However, in this case, it is important that I give reasons because the applicant has previously asked me to disqualify myself in other proceedings and I have declined to do so. It is important that I explain the reasons I have decided to disqualify myself in this proceeding. 3 The respondent, the Military Rehabilitation and Compensation Commission, referred me to two authorities but otherwise did not make detailed submissions on the application. 4 Over the years, the applicant has instituted a number of proceedings in this Court and an even greater number in the State Court system. An order preventing him from instituting certain proceedings has been made by the Supreme Court of South Australia under s 39 of the Supreme Court Act 1935 (SA) (see Mitsubishi Motors Australia Ltd v Kowalski [2005] SASC 154). He appears before me in person. He has made a number of serious allegations against me, including that I have fabricated decisions. He seems to labour under the misapprehension that any judicial officer who finds against him must be wrong and must disqualify himself or herself. That is plainly not the law. 5 I reject any suggestion of actual bias. However, I must consider whether I should disqualify myself on the ground of apparent bias. It seems to me that the only possible basis for an allegation of apparent bias is on the basis of pre-judgment and that, in turn, involves a consideration of my involvement in four previous proceedings involving the applicant. 6 As a judge of the Supreme Court of South Australia, I sat on two cases involving the applicant. They were Mitsubishi Motors Australia Ltd v Kowalski [2004] SASC 302; (2004) 236 LSJS 101 and Kowalski v Layton [2006] SASC 28. 7 As a judge of this Court, I have sat on two cases involving the applicant. They were Kowalski v Repatriation Commission [2009] FCA 794 (SAD 168 of 2008) and Kowalski v Mitsubishi Motors Australia Ltd [2009] FCA 991 (SAD 171 of 2008). 8 Before I had heard the substantive notice of motion in Kowalski v Mitsubishi Motors Australia Ltd (SAD 171 of 2008), the applicant asked me to disqualify myself. I declined to do so on 4 December 2008 and delivered reasons for my decision on that date: Kowalski v Mitsubishi Motors Australia Limited [2008] FCA 1873. Before I had heard the appeal under s 44(1) of the Administrative Appeals Tribunal Act 1975 (Cth) in Kowalski v Repatriation Commission (SAD 168 of 2008), the applicant asked me to disqualify myself. I declined to do so on 22 December 2008 and delivered reasons for my decision on that date: Kowalski v Repatriation Commission [2008] FCA 1970. 9 After I had delivered judgment in the appeal in Kowalski v Repatriation Commission [2009] FCA 794, but before I had delivered judgment in Kowalski v Mitsubishi Motors Australia Limited (SAD 171 of 2008), the applicant again asked me to disqualify myself. I again declined to do so and I proceeded to deliver judgment in the matter of Kowalski v Mitsubishi Motors Australia Ltd [2009] FCA 991 at [7]-[12]. 10 I see no reason to revisit in any way my previous decisions on applications for disqualification. 11 It seems to me that the question on this application is whether, by reason of my decision in Kowalski v Repatriation Commission [2009] FCA 991 or my decision in Kowalski v Mitsubishi Motors Australia Limited [2009] FCA 991, or both, I should disqualify myself from hearing this proceeding. 12 I summarised the relevant principles in a case of this nature in my reasons for judgment in Cadbury Schweppes Pty Limited v Darrell Lea Chocolate Shops Pty Limited [2009] FCAFC 8 at [121]-[123]. 13 It is convenient to start with a brief description of the present proceeding. 14 The present proceeding is an appeal from a decision of the Tribunal made on 27 May 2009. The Tribunal affirmed a decision of the Military Rehabilitation and Compensation Commission rejecting a claim by the applicant that a condition of gastro-oesophageal reflux disease, or GORD, as it is referred to in the Tribunal's reasons, was caused by, or contributed to, by the applicant's service in the Australian Army. The Tribunal recorded the fact that the applicant had a prior accepted claim for a duodenal ulcer. 15 The applicant served in the army between 1972 and 1973. In the course of its reasons, the Tribunal said (at [70]-[71]): "The Tribunal finds that Mr Kowalski was not at all times reliable in his evidence. Aspects of his evidence appeared to be constructed to fit the medical opinion as to the causation of GORD. For example, his allegation of being told to go on a high fat and high cholesterol diet when in the Army was simply not believable and appears to have been constructed on the spot to fit with the medical opinion that his weight was a major contributor to his GORD." 16 At [84]-[94], the Tribunal summarised the applicant's case and then set out its conclusions: "Mr Kowalski's case can be summarised as follows: §he developed GORD during his years in the Army and has suffered from it since; §he developed GORD after leaving the Army as a result of taking anticholinergic drugs and in particular, Librax and Merbentyl; §alternatively, that his GORD came about because he was put on a high fat diet by an Army doctor and gained weight; and §that excessive consumption of alcohol during his Army service contributed in material degree to his GORD. With respect to the first proposition, each doctor was questioned at length as to whether his condition of GORD was symptomatic during his Army years. Both Dr Reid and Dr Hetzel rejected that proposition. They both expressed the view that Mr Kowalski's GORD had developed much later and was possibly due to the combination of his obesity, his ingestion of anti-inflammatory medication for his back problem and his ingestion of Aspirin for his heart problem. Both doctors had viewed his Army medical records and subsequent medical records. The commentary in the Army medical records was suggestive of the effects of an ulcer. Where the word "heartburn" is referred to, it is referred to in inverted commas as being Mr Kowalski's words that were used in describing his symptoms. Both doctors were of the view that the Army medical records indicated that he had an ulcer at the time, but not that he had GORD. The Tribunal accepts the medical evidence that Mr Kowalski was not suffering from GORD during his Army service but was suffering the effects of a duodenal ulcer. With respect to the smooth muscle relaxants, namely Merbentyl and Librax, both Dr Reid and Dr Hetzel said that there is no established link between taking these drugs and GORD. They commented that the taking of these drugs may cause some regurgitation on a short-term basis, but when one ceases taking the drugs the reflux would cease fairly quickly. The Tribunal finds, on the balance of probabilities, that there is no link between Mr Kowalski's GORD and the medication that he was prescribed for treatment of anxiety or ulcer during his Army service. With respect to the third proposition, the Tribunal refers to its finding that Mr Kowalski was not put on a high fat, high cholesterol diet as a treatment for an ulcer while in the Army. With respect to the fourth proposition, the Tribunal refers to its findings in paragraph 75 (supra). The Tribunal is satisfied that Dr Cheung's notes which indicate him reporting the onset of symptoms some 2½ years earlier support the thesis that he developed GORD in the 1990s and very possibly as a result of the medication he had been taking for his back, for his heart problems and also as a result of the excessive amount of weight that he had gained in the 1990s. In the circumstances, the Tribunal cannot be satisfied, on the balance of probabilities, that there is the required strong causal link between Mr Kowalski's Army service and the onset of the condition of GORD. In the circumstances, the Tribunal affirms the decision under review." 17 In his notice of appeal to this Court in the present proceeding, the applicant sets out what he contends are a number of questions of law. I make no comment on whether the grounds, or any of them, raise questions of law. In a number of grounds, the applicant refers to a difference between the finding made by the Tribunal in the present proceeding on the matter of whether he was told to go on a high fat and high cholesterol diet and the finding on that matter by Deputy President Jarvis in Kowalski v Repatriation Commission [2008] AATA 903. An example is ground 2.10 : "2.10 Did the Tribunal err in law because it perverted the course of justice in the AAT when it falsely stated that '… his allegation of being told to go on a high fat and high cholesterol diet when in the Army was simply not believable and appears to have been constructed on the spot to fit with the medical opinion that his weight was a major contributor to his GORD.' on the ground that the AAT was fully aware that in par 14 of the AAT decision in Kowalski v Repatriation Commission [2008] AATA 903 Deputy President Jarvis has correctly found that 'The doctor at the Base also put Mr Kowalski on a high fat diet which entailed his having milk and cheeses but not spicy foods …'? [71] (A copy of par 14 is attached) COMMENT: The applicant relies on the AAT decision in Oliver v Repatriation Commission [2002] AATA 408 to support his appeal." (Original emphasis.) 18 I refer also to grounds 2.11, 2.12, 2.13, 2.18, 2.19, 2.20 and 2.21. 19 Kowalski v Repatriation Commission (SAD 168 of 2008) was an appeal from a decision of Deputy President Jarvis in Kowalski v Repatriation Commission [2008] AATA 903. 20 In his decision, the Deputy President described the claim and the issues before him as follows (at [2], [3], [4]): "On 6 March 2007 he lodged a claim for disability pension under the Veterans' Entitlements Act 1986 (Cth) (VE Act) for a number of conditions that were regarded by the Repatriation Commission as major depression with co-morbid anxiety, hypertension and ischaemic heart disease. He claimed that the conditions were defence caused. The Commission rejected his claim, and he applied to the Veterans' Review Board (VRB) for review of the Commission's decision. The VRB decided to vary the decision under review by substituting diagnoses of depressive disorder and anxiety disorder for the previously diagnosed condition of major depression with co-morbid anxiety, but otherwise affirmed the decision under review as so varied. Mr Kowalski subsequently applied to this tribunal to review the decision of the VRB. Issues before the Tribunal The issues before me are whether the conditions of depressive disorder, anxiety disorder, hypertension and ischaemic heart disease are defence caused for the purposes of the VE Act. Mr Kowalski's service from 7 December 1972 until his discharge was eligible defence service for the purposes of his claim." 21 I dismissed the appeal from the decision of the Tribunal constituted by Deputy President Jarvis: Kowalski v Repatriation Commission [2009] FCA 794. 22 The conditions which formed the subject of the claim in Kowalski v Repatriation Commission [2008] AATA 903 did not include GORD. Nevertheless, there is a factual overlap between the issues in that matter and the issues before the Tribunal in the present proceeding, particularly as to what occurred during the applicant's time in the army. In fact, on the face of it, there was no dispute before Deputy President Jarvis that the applicant was put on a high fat diet by an Army doctor, whereas, before the second Tribunal, that fact was disputed and ultimately rejected by the Tribunal. 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. 24 I am disposed to think that my decision in Kowalski v Mitsubishi Motors Australia Ltd [2009] FCA 991 does not provide a reason for me to disqualify myself from further involvement in the present proceeding, but in the circumstances, I do not need to express a concluded view. I certify that the preceding twenty-four (24) numbered paragraphs are a true copy of the Reasons for Ruling herein of the Honourable Justice Besanko. Associate: Dated: 17 September 2009 The Applicant appeared in person. Counsel for the Respondent: Ms R J Evans Solicitor for the Respondent: Sparke Helmore Date of Hearing: 8 September 2009 Date of Judgment: 17 September 2009