Cook v ASP Ship Management [2009] FCAFC 113 (2 September 2009)

Last Updated: 3 September 2009

FEDERAL COURT OF AUSTRALIA

Cook v ASP Ship Management [2009] FCAFC 113

Federal Court of Australia Act 1976 (Cth), ss 25(2B)(bb)(ii), 27
Seafarers Rehabilitation and Compensation Act 1992 (Cth)
Administrative Appeals Tribunal Act 1975 (Cth), ss 39, 39(1), 40(1)(b), 44, 44(1)

Cook v ASP Ship Management Pty Ltd [2008] FCA 1345 affirmed
Clements v Independent Indigenous Advisory Committee [2003] FCAFC 143 (2003) 131 FCR 28 distinguished
House v The King [1936] HCA 40; (1936) 55 CLR 499 cited


















GEORGE WILSON COOK v ASP SHIP MANAGEMENT
VID 692 of 2008

GRAY, EMMETT AND BESANKO JJ
2 SEPTEMBER 2009
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VID 692 of 2008
GENERAL DIVISION

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:

GEORGE WILSON COOK Appellant

AND:	ASP SHIP MANAGEMENT Respondent

JUDGES:	GRAY, EMMETT AND BESANKO JJ
DATE OF ORDER:	2 SEPTEMBER 2009
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1. The appeal be dismissed.

2. The appellant pay the respondent’s costs of the appeal.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using eSearch on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VID 692 of 2008
GENERAL DIVISION

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:

GEORGE WILSON COOK Appellant

AND:	ASP SHIP MANAGEMENT Respondent

JUDGES:	GRAY, EMMETT AND BESANKO JJ
DATE:	2 SEPTEMBER 2009
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

THE COURT:

The nature and history of the proceeding

1 On 27 August 2009, when this appeal was called on for hearing, the appellant did not appear. The Court heard submissions from counsel for the respondent as to the merits of the appeal. The Court has determined that the appeal should be dismissed on the merits, rather than simply for non-appearance of the appellant, pursuant to s 25(2B)(bb)(ii) of the Federal Court of Australia Act 1976 (Cth) ("the Federal Court Act").

2 The appellant first made a claim against the respondent in 1995 for compensation pursuant to the Seafarers Rehabilitation and Compensation Act 1992 (Cth). The respondent rejected that claim on 10 July 1995, and the appellant sought review of that decision by the Administrative Appeals Tribunal ("the Tribunal"). A further compensation claim under the same Act by the appellant was also rejected by the respondent on 13 June 2000, and the appellant sought review of that decision by the Tribunal. At some stage, it appears that the two applications for review were consolidated by the Tribunal. The Tribunal published its decision and reasons for decision on 29 May 2006. It affirmed both of the decisions of ASP Ship Management Pty Ltd, made on 10 July 1995 and 13 June 2000.

3 The appellant appealed to this Court from the decision of the Tribunal, pursuant to s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) ("the AAT Act"). The appeal was heard by North J. The appellant was represented by two counsel, who appeared pro bono. His Honour gave judgment on 13 August 2008. See Cook v ASP Ship Management Pty Ltd [2008] FCA 1345. His Honour dismissed the appellant’s appeal from the Tribunal’s decision with costs.

4 The appellant filed in this Court a handwritten notice of appeal on 1 September 2008. The appeal was first listed before a registrar for the settling of the index to the appeal book on 24 September 2008. This appointment was adjourned at the appellant’s request to 15 October 2008. The appellant did not attend on that date, having advised the Court that he was unable to attend because of ill health. The appointment was adjourned to 27 October 2008. The matter had been listed in the callover list, to be conducted on 28 October 2008, for hearing in the Full Court sittings in February and March 2009. By consent, both the appointment of 27 October 2008 and the callover listing were adjourned. The former was fixed for 10 December 2008 and the latter for 3 February 2009, so that the appeal could be heard in the Full Court sittings in May 2009. On 9 December 2008, the appellant again advised the Court that he would not be well enough to attend the appointment on the following day. By consent, the appeal was again adjourned from the callover on 3 February 2009 to the callover on 28 April 2009, for hearing in August 2009.

5 The appellant appeared in person at the callover on 28 April 2009. It was ordered that the matter be listed for hearing in the sittings of the Full Court commencing on 3 August 2009. Timetabling orders for outlines of submissions and lists of authorities and legislation were made in the usual form. A further appointment was made on 14 May 2009 for the settling of the index to the appeal book. On that day, the appellant appeared in person. The registrar settled the index to Part A of the appeal papers and adjourned the settlement of the index to Parts B and C until 5 June 2009.

6 By letter dated 1 June 2009, the appellant and the solicitors for the respondent were advised that the appeal would be heard on 27 August 2009.

7 With respect to the appointment on 5 June 2009, the appellant again contacted the Court to say that he was too ill to attend. The appointment was adjourned to 24 June 2009. On 23 June 2009, the appellant again informed the Court that he would be unable to attend, due to ill health.

8 On 8 July 2009, the appellant filed a notice of motion, seeking to have the hearing date of 27 August 2009 for the appeal vacated, and to have the appeal included in the callover on 28 July 2009 for matters to be heard during the November 2009 Full Court sittings. On 31 July 2009, the Full Court (Emmett, Greenwood and Besanko JJ) dismissed the motion. A further appointment was made for 12 August 2009, to complete the settling of the index of the appeal papers. The appellant again communicated with the Court that he would be unable to attend, due to ill health. By letter dated 13 August 2009, the appellant was advised that the hearing of the appeal would proceed on 27 August 2009.

9 The settlement of the index of the appeal papers has not been completed. The appellant has not filed and served an appeal book at all. On the morning of the hearing of the appeal, the appellant advised the Court by telephone that he was not well enough to appear.

The proceeding in the Tribunal

10 It will be seen that there was a very long time between the making of the applications to the Tribunal and their determination. Counsel for the respondent informed the Court that part of this delay might have been due to the fact that the appellant commenced other proceedings in this Court in the course of that time. The Tribunal hearing began on 21 June 2005. The appellant was not in attendance, having advised the Tribunal on the previous day that he would be unable to attend. The Tribunal decided to proceed in his absence, pursuant to the power granted by s 40(1)(b) of the AAT Act to proceed in the absence of a party who has had reasonable notice of the proceeding. The Tribunal gave reasons for proceeding in that manner. Those reasons are set out in full in [15] of the reasons for judgment of North J. They detail the attempts that the Tribunal made to accommodate the difficulties the appellant claimed to have in relation to the Tribunal hearing. Hearing dates were fixed for days that were not consecutive. Difficulty in arranging the attendance of Mr Wearne, an orthopaedic surgeon who was to give evidence on behalf of the appellant, were overcome. Financial assistance with public transport was offered, because the appellant said his wife was ill and could not drive him to the Tribunal. The Tribunal detailed its attempts to conduct directions hearings by telephone and the appellant’s refusal to participate, on the ground that he had defective hearing. The Tribunal referred to telephone calls in which Tribunal staff and the appellant had spoken.

11 Counsel for the respondent informed the Court that, after the Tribunal had made its decision on 21 June 2005 to proceed in the absence of the appellant, the Tribunal did not hear any of the substance of the application until 23 June 2005. On that day, the Tribunal heard the evidence, including evidence from Mr Wearne, and submissions by counsel for the respondent. The third day that had been fixed for the hearing, 26 June 2005, was not used. Subsequently, the appellant communicated with the Tribunal as to the accuracy of evidence given by a witness for whom the appellant had worked for some time. The Tribunal conducted a further day’s hearing on 28 March 2006, at which the appellant did appear in person. The Tribunal heard further evidence on that day.

12 The Tribunal’s decision on 29 May 2006 was accompanied by detailed reasons on the merits of the applications for review, amounting to 72 paragraphs. For present purposes, it is unnecessary to deal with the detail of those reasons.

The proceeding at first instance

13 By his amended notice of appeal from the Tribunal’s decision, which was apparently drawn by his pro bono counsel, the appellant raised what was essentially a case of denial of procedural fairness. He questioned whether the Tribunal failed to afford him procedural fairness by proceeding to hear the applications for review in his absence, notwithstanding that he had given adequate prior notice to the Tribunal that he was unable to attend the hearing on the scheduled dates due to illness, and that material witnesses were unable to attend because they were out of Victoria or ill at the time of the scheduled hearing. He also referred to the denial of his right to cross-examine witnesses on questions of fact as to which the Tribunal had made findings beneficial to the respondent. The appellant invoked s 39 of the AAT Act, which requires the Tribunal to "ensure that every party to a proceeding before the Tribunal is given a reasonable opportunity to present his or her case". In addition, the appellant relied on the principles of procedural fairness, particularly the denial of the opportunity to cross-examine.

14 The crucial reasoning of North J is found in [21] of his Honour’s reasons for judgment:

I do not accept that the Tribunal breached s 39(1) of the Act. It was reasonable for the Tribunal to offer Mr Cook a phone directions hearing in view of the contact by phone which Mr Cook had previously had with the Tribunal. The Tribunal was not obliged to simply accept his assertions in favour of an adjournment without further elaboration. It explained in its reasons that the absence of Mrs Cook to assist him at the hearing could be addressed by arrangements made at the hearing. It had the report of Mr Wearne about Mr Cook’s ability to drive and use the train which justified its conclusion that Mr Cook could attend. In any event, the Tribunal was not bound to accept that Mrs Cook could not attend as the medical certificate relating to her was fairly uninformative. Her unavailability was not necessarily, on its own, a reason for the Tribunal to grant the adjournment.

At [24], his Honour pointed out that the Tribunal had attempted to mitigate any difficulty for the appellant in attending the Tribunal by suggesting that a directions hearing would be held by telephone. He said that there was nothing to suggest that the Tribunal failed to take into account the fact that the appellant was unrepresented, or the consequences of proceeding in his absence, if it was bound to take those consequences into account. He referred to the fact that s 40(1)(b) of the AAT Act provided for the conduct of a hearing in the absence of a party.

The grounds of appeal

15 It is clear that the grounds in the appellant’s notice of appeal to this Court have not been prepared with the assistance of legal advice. Ground 1 reads "Procedural unfairness/no recognition of appellants [sic] deafness", followed by two sets of ditto marks under the word "recognition" and the words "severity of injury." Ground 2 is "Error of Law! Reliance on AAT judgment when unable to attend thro’ [sic] illness". Ground 3 is "Misunderstanding basic facts of case". Ground 4 is "Narrow judgment of facts AAT knew at the time - misuse of surreptitious’ [sic] phone recording-failure to independantly [sic] determine whether illness was factual."

Consideration of grounds

16 An appeal from a decision of the Tribunal is limited by s 44(1) of the AAT Act to an appeal on a question of law. It is therefore not open to a person appealing from a Tribunal decision to invite the Court to make findings of fact at variance with those made by the Tribunal. The facts found by the Tribunal are the facts of the case, for the purposes of such an appeal. Only if there is error of law can the Court send the case back to the Tribunal to undertake the task of finding the facts again, if necessary. To the extent to which the appellant’s grounds of appeal seek to invite the Court to take a view of the facts different from that taken by the Tribunal, they invite the Court to do something beyond its powers. In one way or another, all four of the grounds of appeal appear to invite the Court to form its own views as to what the facts were. Ground 1 asks this Court to form a view as to the appellant’s deafness and the severity of his injury. Ground 2 invites a finding that the appellant was unable to attend the Tribunal hearing because of illness. Ground 3 seeks at least a reinterpretation of what are described as the basic facts of the case. Ground 4 asks the Court to find that there was surreptitious recording of telephone conversations, and to find that the Tribunal failed to determine independently whether the appellant’s illness was factual. These things the Court cannot do. Nor could they have been done by North J. Counsel then appearing for the appellant did not invite North J to make findings of fact. So far as it is based on a desire to challenge any finding of fact made by the Tribunal, this appeal cannot succeed.

17 It has been recognised that a denial of procedural fairness is an error of law on the part of the Tribunal, and can therefore form the basis of an appeal to the Court under s 44 of the AAT Act. See Clements v Independent Indigenous Advisory Committee [2003] FCAFC 143 (2003) 131 FCR 28 at [30]- [35] per Gray ACJ and North J. A failure by the Tribunal to comply with its obligation under s 39(1) of the AAT Act, to provide a reasonable opportunity to a party to present his or her case, would also be an error of law, by parity of reasoning. It has also been recognised that, for the purpose of establishing a denial of procedural fairness, a person appealing from a decision of the Tribunal may tender evidence to the Court, if it is necessary to do so to establish such a denial. See Clements at [9]-[14] per Gray ACJ and North J. This is because the facts that disclose a denial of procedural fairness are sometimes not apparent from the Tribunal’s reasons. Clements was a case in which the Tribunal dismissed an application for review because the applicant did not appear at the hearing. It did so without being aware that, through no fault of his own, the applicant had not received notice of the hearing.

18 In the present case, it is apparent from the reasons for judgment of North J that the appellant did not place before the Court at first instance any evidence designed to establish a denial of procedural fairness on the part of the Tribunal. Counsel then appearing for the appellant argued that, in the circumstances that the Tribunal found were disclosed by the facts as it found them, the Tribunal had failed to afford the appellant procedural fairness, and had failed to comply with its obligation to provide him with a reasonable opportunity to present his case. The proceeding at first instance was therefore conducted on the basis of the facts as found by the Tribunal, in its reasons for decision on the question whether it would proceed in the appellant’s absence, delivered on 21 June 2005. On the basis of those facts, it is clear that North J made no error. The efforts made by the Tribunal to satisfy the appellant’s requests in relation to the hearing, and its efforts to involve him in the process of managing the case for a hearing, demonstrated amply that the Tribunal gave the appellant a reasonable opportunity to present his case. In doing so, it afforded him procedural fairness. The appellant did not take advantage of the opportunity offered.

19 The appellant did not apply to this Court for the exercise of its limited power to admit further evidence on appeal, pursuant to s 27 of the Federal Court Act. His failure to complete the process of preparation of the appeal papers has meant that he has not placed before the Court any of the material that he should have, let alone any other material. If he had invited the exercise of the power to receive further evidence, the appellant would have had to persuade the Court that it was appropriate to give him leave to rely on grounds of appeal that were not advanced as grounds at first instance. If the evidence he had proposed had been contentious, this would have been a further difficulty.

20 The decision of the Tribunal to deal with the case in the exercise of its power given by s 40(1)(b) of the AAT Act, by hearing it in the appellant’s absence, was the exercise of a discretionary power. An appeal from an exercise of discretion does not succeed on the basis that the appeal court might have exercised the discretion differently, if it had been doing so afresh. Such an appeal succeeds only if the exercise of the discretion has miscarried, on the application of the well-known principles laid down in House v The King [1936] HCA 40; (1936) 55 CLR 499 at 504-505 per Dixon, Evatt and McTiernan JJ. In their application to the exercise of discretion by the Tribunal, these principles are circumscribed by the requirement that an appeal from a decision of the Tribunal be limited to questions of law. To the extent to which the grounds of appeal in the present case appear to challenge the Tribunal’s exercise of discretion on the ground that it mistook the facts, they cannot be entertained. Nothing in the grounds of appeal provides a basis for suggesting error on the part of North J in refusing to overturn the Tribunal’s exercise of discretion. In order to succeed on an appeal, it is necessary to show that the judgment appealed from is the result of error.

21 We have examined the reasons for judgment of North J. We are unable to discern any error by his Honour. Nor have we been able to discover any basis on which the exercise of the Tribunal’s discretion to proceed in the absence of the appellant could be overturned. The appeal to this Court is entirely without merit. It is appropriate to dismiss it on that basis, notwithstanding the absence of the appellant from the hearing. It is unnecessary to look in detail at material the appellant sent by facsimile transmission to the Court after the Full Court refused to adjourn the hearing of the appeal. That material relates to the appellant’s medical conditions. Nothing in that material supported a conclusion that the date of the appeal hearing should be vacated.

Conclusion

22 For the reasons we have given, the appeal to this Court must be dismissed. In accordance with the usual principle, that costs follow the event, the appellant will be ordered to pay the respondent’s costs of the appeal.

I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Gray, Emmett and Besanko.

Associate:

Dated: 2 September 2009

The appellant did not appear and was not represented
Counsel for the respondent:	Mr J Lenczner
Solicitor for the respondent:	Holman Fenwick Willan

Date of Hearing:	27 August 2009
Date of Judgment:	2 September 2009