FEDERAL COURT OF AUSTRALIA

Cook v ASP Shipping Management Pty Ltd (No. 2) [2009] FCAFC 121

Administrative Appeals Tribunal Act 1975 (Cth) s 44

GEORGE WILSON COOK v ASP SHIPPING MANAGEMENT PTY LTD

VID 692 of 2008

EMMETT, GREENWOOD and BESANKO JJ

8 SEPTEMBER 2009

MELBOURNE

THE COURT ORDERS THAT:

1.      The appellant’s notice of motion filed on 8 July 2009 and seeking an order vacating the hearing date of 27 August 2009 be dismissed.

2.      The costs of the said notice of motion be reserved.

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.

REASONS FOR JUDGMENT

1                          This appeal was brought from orders of a judge of the Court made on 13 August 2008.  By those orders, the primary judge dismissed, with costs, an appeal under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act) against orders of the Administrative Appeals Tribunal (the Tribunal) made on 29 May 2006.  By those orders, the Tribunal affirmed decisions of the respondent, ASP Ship Management Pty Limited (ASP), made on 10 July 1995 and 13 June 2000. 

2                          On 1 June 2009, the appellant and ASP were notified that this appeal would be heard on 27 August 2009.  On 8 July 2009, the appellant filed a notice of motion, seeking to have the hearing of the appeal on 27 August 2009 vacated.  The parties agreed that the motion could be dealt with on the papers on the basis of written submissions from both parties.  On 31 July 2009, we made orders dismissing the motion.  These are the reasons for making those orders.

3                          The ground of appeal to the Federal Court from the Tribunal’s orders was an alleged denial of procedural fairness because the Tribunal proceeded with a hearing in the absence of the appellant.  The Tribunal gave reasons for taking that course, which are set out verbatim in the reasons of the primary judge (see [2008] FCA 1345 at [15]).  In his reasons for dismissing the appeal under s 44 of the AAT Act, the primary judge outlined the history of the proceeding before the Tribunal. 

4                          The appellant filed a notice of this appeal on 1 September 2008.  The notice of appeal does not, in terms, refer to any error on the part of the primary judge.  Having regard to the fact that the notice of appeal is handwritten and was clearly prepared by the appellant, who has no legal qualifications, it would be appropriate to construe the notice of appeal as asserting that the primary judge erred in failing to uphold the grounds of appeal from the orders of the Tribunal.  However, two of the four grounds stated in the notice of appeal were not grounds before the primary judge and no application has been made for leave to raise additional grounds on the hearing of this appeal. 

5                          The appointment to settle the appeal papers for the appeal was initially listed for 24 September 2008.  The appointment was vacated at the appellant’s request and another appointment was made for 15 October 2008.  That was then cancelled at the request of the appellant and another appointment was made for 27 October 2008.  That was also vacated for the same reason and another appointment made for 10 December 2008. 

6                          A call over listed for 27 October 2008 was also vacated at the request of the appellant and adjourned to 3 February 2009.  The appellant attended the call over on that day.  On that day, the appellant provided ASP’s solicitors with a copy of the proposed index of the appeal papers and the appeal was listed for hearing in the August sittings of the Court.  However, the appeal was then stood over for further call over on 28 April 2009.  The Court appointed 14 May 2009 for the settling of the appeal papers. 

7                          The appellant attended the appointment on 14 May 2009 but the appeal papers were not finalised and the appointment was adjourned to 5 June 2009.  That appointment was subsequently adjourned at the request of the appellant to 24 June 2009.  However, by letter of 23 June 2009, the appellant informed ASP and the Court that he was unable to attend the appointment for 24 June 2009.  He submitted a report from a medical practitioner of 22 June 2009, which relevantly said that the appellant was:

Unwell with multiple medical problems including poorly controlled diabetes and impending nasal and palate surgery.  He will be unable to attend to his legal problems for the next three months.

8                          The appellant then filed his notice of motion on 8 July 2009 seeking to have the hearing date for the appeal vacated and the matter listed for call over on 28 July 2009 for the purposes of fixing a hearing in the November sittings of the Court.  The appellant filed an affidavit in support of the motion, in which he asserted that his medical condition would remain unchanged for more than 24 months and that recent events indicated that his condition continues to deteriorate.  ASP opposed the application to vacate the date for hearing of the appeal. 

9                          Close to eleven months had elapsed since the filing of the notice of appeal.  The medical practitioner’s report of 22 June 2009 lacked information as to the manner in which the diabetes and impending nasal and palate surgery would prevent the appellant from tending to his legal problems.  No mention is made in the report or in the appellant’s affidavit of the date or dates of the impending surgery or its nature and the impact that it was likely to have on the appellant.  There is no indication that the medical practitioner had any knowledge of the “legal problems” referred to in the report. 

10                        Assuming the report from the medical practitioner is to be treated as admissible evidence, it is quite unspecific as to the way in which the appellant’s condition would interfere with his capacity to prepare for the appeal and make submissions in support of it.  Indeed, since the date of the report of 22 June 2009, the appellant had attended to various legal matters. That included his correspondence with the Court of 23 June 2009, the preparation, filing and service of the notice of motion and affidavit in support on 8 July 2009 and the preparation, filing and service of a further affidavit on 21 July 2009 explaining erroneous page numbering in his affidavit of 7 July 2009.  All of that was done within the period of three months referred to by the medical practitioner. 

11                        The fact that the appellant has been able to attend to legal matters in the manner just indicated suggests that he is not incapacitated to an extent that would prevent him from making submissions in support of his appeal.  The appellant was represented at the hearing before the primary judge by counsel.  The arguments advanced on his behalf could easily be adapted for the appeal to the Full Court, having regard to the nature of an appeal under s 44 of the AAT Act. 

12                        The history of the proceeding before the Tribunal, together with the history of the conduct of the present appeal, indicates that there was no basis for deferring the hearing of the appeal further and that it would be unfair to ASP to do so.  In any event, if the appellant’s condition is likely to deteriorate, it would be desirable that the appeal be heard sooner rather than later.  For those reasons, the Court concluded that the appeal should continue on the date fixed and therefore dismissed the appellant’s motion. 

Associate:

Dated:         8 September 2009