KAZIMIR KOWALSKI and REPATRIATION COMMISSION Professor D Ben-Tovim (Member)

Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2011] AATA 214
ADMINISTRATIVE APPEALS TRIBUNAL )
) Nos 2009/4000 & 2010/2439

VETERANS APPEALS DIVISION )

Re KAZIMIR KOWALSKI

Applicant

And

REPATRIATION COMMISSION

Respondent

INTERLOCUTORY DECISION

Tribunal Professor D Ben-Tovim (Member)
Date8 March 2011
PlaceAdelaide

Decision
WHEREAS:

A. The applicant has applied pursuant to s 21A of the Administrative Appeals Tribunal Act 1975 (the AAT Act) for the Tribunal to be reconstituted.

B.       In a separate decision of even date the Tribunal as constituted by myself and Senior Member Bean has decided to reject that application but to treat it as an application for me to disqualify myself on the grounds of bias or apprehended bias.

C.       In that decision we have also decided that I should not disqualify myself on the grounds of apprehended bias.

I DECIDE that:

1.        Insofar as the applicant has applied for me to disqualify myself on the grounds of actual bias, I will not disqualify myself as I am satisfied that I am not biased and bring an impartial mind to all issues in the proceedings.

..............................................
D BEN-TOVIM
  (Member)

CATCHWORDS
PRACTICE AND PROCEDURE – Application for disqualification on the grounds of actual bias – No bias – Application refused.
Administrative Appeals Tribunal Act 1975 s 21A
REASONS FOR DECISION

30 March 2011   Professor D Ben-Tovim (Member)

1. I refer to the joint decision of myself and Senior Member Bean in this matter, in which we decided to reject the s 21A application made by Mr Kowalski and we also decided that I should not disqualify myself on the grounds of apprehended bias. In that decision, we also decided to treat Mr Kowalski’s purported s 21A application as an application that I should disqualify myself on the grounds of actual or apprehended bias.
2.      At the time we handed down that decision, I also handed down the decision outlined above declining to disqualify myself on the grounds of actual bias. At that time, I intended to provide my reasons for that decision at the conclusion of the matter. On further consideration however, I have decided that it is appropriate for me to provide my reasons prior to the resumed hearing, currently scheduled for 6 April 2011. My reasons for the decision are as follows.
3.      Insofar as Mr Kowalski has applied for me to disqualify myself on the grounds of actual bias, I have considered that application and Mr Kowalski’s submissions in support of it and I understand that application to be made primarily upon the basis of the two statements referred to in the joint decision referred to above.
4.      Having considered those matters and the other matters referred to by Mr Kowalski in his subsequent correspondence, I am satisfied that I bring an impartial and open mind to all of the issues in the proceedings. As I stated when we delivered our decisions in relation to these matters on 8 March 2011, in the exchange complained of by Mr Kowalski relating to Dr Reid’s evidence, my intention was simply to clarify Dr Reid’s previous evidence and not to express any concluded opinion on the issues involved.
5.      As I am satisfied that I bring an open and impartial mind to all issues in the proceedings, I have decided not to disqualify myself from further hearing the matter on the grounds of actual bias.

I certify that the 5 preceding paragraphs are a true copy of the reasons for the decision herein of Professor D Ben-Tovim (Member)
Signed:         ..........J Coulthard..........................................
  Associate
Dates of Hearing  13-14 January 2011
Date of Decision  30 March 2011
Advocate for the Applicant       Self-represented
Counsel for the Respondent     Mr J Wallace
Solicitor for the Respondent     AGS

CaseChat Overview and Summary

The case involves an application for disqualification made by Kazimir Kowalski, an applicant in proceedings before the Administrative Appeals Tribunal (AAT), against Professor D Ben-Tovim, a member of the Tribunal. Kowalski applied for the Tribunal to be reconstituted on the basis of actual bias, but the Tribunal treated this application as one for Professor Ben-Tovim to disqualify himself from the proceedings. The matter was heard by Professor Ben-Tovim and Senior Member Bean, who separately addressed the application for disqualification.

The primary legal issue was whether Professor Ben-Tovim should disqualify himself due to actual bias. The application was examined under section 21A of the Administrative Appeals Tribunal Act 1975, which allows for such a disqualification if there is a reasonable apprehension of bias. The focus of the court's consideration was whether Professor Ben-Tovim exhibited actual bias, as opposed to apprehended bias, which had already been rejected by the Tribunal.

In deciding the matter, Professor Ben-Tovim carefully reviewed the evidence and submissions made by Kowalski. The court found that the application for disqualification based on actual bias did not succeed because there was no evidence to support a finding that Professor Ben-Tovim was biased. The court was satisfied that Professor Ben-Tovim could approach the proceedings with an impartial mind. Consequently, the application for disqualification on the grounds of actual bias was dismissed.

The court's final order was that Professor Ben-Tovim would not disqualify himself from the proceedings, as there was no evidence of actual bias. This decision ensured that the matter could proceed with the same composition of the Tribunal, maintaining the integrity of the administrative process.

Orders of the court

WHEREAS:

A. The applicant has applied pursuant to s 21A of the Administrative Appeals Tribunal Act 1975 (the AAT Act) for the Tribunal to be reconstituted.

B. In a separate decision of even date the Tribunal as constituted by myself and Senior Member Bean has decided to reject that application but to treat it as an application for me to disqualify myself on the grounds of bias or apprehended bias.

C. In that decision we have also decided that I should not disqualify myself on the grounds of apprehended bias.

I DECIDE that:

1. Insofar as the applicant has applied for me to disqualify myself on the grounds of actual bias, I will not disqualify myself as I am satisfied that I am not biased and bring an impartial mind to all issues in the proceedings.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established