FEDERAL COURT OF AUSTRALIA

Cook v ASP Ship Management [2001] FCA 598

ADMINISTRATIVE LAW – Administrative Appeals Tribunal – Practice and procedure- Directions given by the Tribunal - Whether the Court should interfere with interlocutory directions on matters of practice and procedure – Undesirable for the process adopted by the Tribunal to be fragmented by inappropriate applications for judicial review to the Court

Administrative Appeals Tribunal Act 1975 (Cth)

Seafarers Rehabilitation and Compensation Act 1992 (Cth)

Geographical Indications committee v Honourable Justice O'Connor [2000] FCA 1877

GEORGE WILSON COOK and ANOTHER v ASP SHIP MANAGEMENT

V 809 OF 2000

SPENDER, MARSHALL AND WEINBERG JJ

MELBOURNE

16 FEBRUARY 2001

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

THE COURT ORDERS THAT:

1.                  The appeal be dismissed.

2.                  There be no order as to costs of the appeal.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

REASONS FOR JUDGMENT

SPENDER J:

1                     I agree with the reasons for judgment of Marshall J. As those reasons indicate, Heerey J was concerned to examine the merits of the claims advanced by Mr and Mrs Cook to him that the directions hearing and the directions given by the Administrative Appeals Tribunal offended the principle that a party to a proceeding, including a party in the Administrative Appeals Tribunal, is entitled to procedural fairness.

2                     There is, however, an important matter of principle involved in this appeal. When regard is had to the orders and directions made by Senior Member Gibbs on 1 May 2000, it is clear that the first and second of those matters determine in a final way aspects of the involvement of Mrs Cook, first in relation to the application V 270 of 2000 and then with the appropriateness of her being a party to Mr Cook's two applications.

3                     The other directions, five in number, which the Tribunal made were directed to the prosecution of Mr Cook's two applications. It is wholly undesirable that the process contemplated by the Administrative Appeals Tribunal Act should be fragmented by applications seeking to challenge intermediate directions or determinations made along the way to reaching an ultimate determination of the issue before the tribunal. Just in the same way that the Federal Court should be reluctant to fragment the criminal process by entertaining applications under the AD(JR) Act in relation to committal proceedings or trials and in particular intermediate rulings and determinations made in the course of committal proceedings for criminal trials, so too the Court should be very careful not to contribute to `delay in the process that the AAT is statutorily charged to deal with.

4                     I make those observations because it seems plain that the five directions (c) to (g) inclusive of Mr Gibbs were directed properly to the efficient and timely determination of Mr Cook's entitlements. The consequence of the application before Heerey J, at least concerning those directions and further the appeal to this Court, has been that from 1 May, when those directions were made, to today the applications before the AAT have been put on hold, so to speak. This is not in the interests, it seems to me, of either Mr and Mrs Cook or of the respondent to this appeal. It is in everybody's interests that the focus be on the question of Mr Cook's compensation and the determination of his entitlements in that regard, rather than on personal matters and irrelevant aspects to the principal proceeding.

5                     In a recent case, Geographical Indications committee v Hon O'Connor J and Others, a Full Court of the Federal Court which was constituted by von Doussa, O'Loughlin and Mansfield JJ, in a judgment given on 20 December 2000 was concerned with the directions which the President of the Administrative Appeals Tribunal had given restricting the role of the appellant, which was the original decision-maker, concerning the geographical boundaries of the Coonawarra wine region under Part VIB of the Australian Wine and Brandy Corporation Act 1980. In the course of the Full Court's reasons the Court said:

“Section 44(1) [of the Administrative Appeals Tribunal Act] provides that a party to a proceeding before the Tribunal may appeal to the Federal Court of Australia on a question of law, from any decision of the Tribunal in that proceeding. … “decision”" in section 44(1) has a restricted meaning.  The meaning is confined to a final decision or determination: see Director General of Social Services v Chaney (1980) 47 FCR 80 per Deane J, with whom Fisher J agreed at 100, 103 and Commissioner of Taxation v Beddoe (1996) 68 FCR 446 at 447.”

6                     There is no right of appeal under section 44 of the AAT Act in respect of directions which are not matters of final decision or determination. In those circumstances, the question is whether reliance can be placed upon the AD(JR) Act. In the Geographical Indications Committee case the Full Court said:

“… directions given pursuant to s33 of the AAT Act do not constitute the making of a decision within the meaning of s3 of the ADJR Act, nor does the making of the directions under s33 constitute engaging in conduct for the purpose of making a decision to which the ADJR Act applies within the meaning of s6(1) of the ADJR Act:  see commissioner of Taxation v Beddoe at 452-453.”

7                     The Full Court recognised that in that case that:

“this court has jurisdiction under  s39B, which  provides that the original jurisdiction of the Federal Court of Australia includes jurisdiction with respect to any matter in which a writ of mandamus or prohibition or an injunction is sought against an officer or officers of the Commonwealth.”

8                     In the present case the application to the Federal Court which was filed on 16 May sought the following orders:

“(1)     I seek a writ of prohibition stopping Senior member Gibbs from continuing his involvement in the AAT matters listed above.

(2)       I seek a writ of certiorari quashing the directions of Senior Member Gibbs in toto and a complementary writ of mandamus returning the matters to the AAT for reconsideration de novo by another member.

(3)       I seek a declaration that the facts and contentions submitted by us is part of the public record and that it should be returned and retained to the appropriate case file, and also that the respondents and AAT staff be injuncted from removing any of the materials and notes contained in the file and all directions, conferences and hearing of the above matters be held in public and on the record.

(4)       I seek a writ of mandamus or a declaration instructing the AAT to act with dispatch and limit the hearing to not more than three consecutive days.”

9                     It appears therefore that the appellant, Mr Cook, sought relief in the nature of prerogative orders. Such relief is discretionary, and the identification of any error of law does not necessarily lead to the grant of the relief and, having regard to the considerations telling against any fragmentation of the process by challenges to intermediate directions or determinations made along the way to reaching the ultimate determination of the issue by the tribunal, it is highly likely that in the exercise of discretion none of the prerogative orders sought would have been granted.

10                  I refer to these jurisdictional difficulties because there was no objection to competency by the respondent filed in the proceedings before Heerey J, nor, looking at the matter fairly, was there any ventilation of the desirability of the Federal Court being involved by the making of orders which would impact on the process of the AAT in these matters.  That may have a significance in respect of the costs of these proceedings. It will be apparent from observations which members of the Court have made in the course of hearing that there have been unfortunate distractions from the speedy prosecution of the claims of Mr Cook in the AAT in a disciplined and focused way. It is to be hoped that those matters can be dealt with in accordance with the directions given by Senior Member Gibbs which it is plain were calculated to prosecute the matter promptly. The claims made by the present appellants before Heerey J were properly dismissed on the merits by him and I agree that the appeal should be dismissed.

MARSHALL J:

11                  This is an appeal from the judgment of a single Judge of the Court, Heerey J (“the primary Judge”) given on 4 October 2000.  His Honour dismissed an appeal brought by the appellants against certain orders and directions made by the Administrative Appeals Tribunal (“the AAT”) on 1 May 2000. The hearing before the AAT arose in the following way. The first appellant, Mr Cook, made claims against the respondent under the Seafarers Rehabilitation and Compensation Act 1992 (Cth). The claims related to an infection of Mr Cook's left leg and loss of hearing.

12                  Mr Cook claimed that he was entitled to a lump sum payment in respect of his leg injury but that was denied by the respondent on the basis that it alleged that the relevant incapacity was less than 10 per cent.  The respondent denied liability in respect of the loss of hearing claim.  Mr Cook made an application to the AAT in respect of the two claims. The second applicant, Mrs Cook, purported to make an application for review in which she made a claim in respect of care and household services rendered to Mr Cook. There was, at the time of the crucial directions hearing before the AAT on 3 April 2000, no primary decision of the respondent which formed any basis for such a claim.

13                  The hearing of the appellants' claims was fixed to commence on 3 April 2000 and the appellants were directed to file a statement of facts and contentions. A document was filed in purported compliance with that direction on 14 March 2000. Its contents contained several matters which were not germane to the matter before the AAT. Service of the appellants' document on the respondent resulted in a request by the respondent for a directions hearing. That hearing was held by telephone on 22 March 2000. It was decided by the AAT at the directions hearing that the 3 April 2000 hearing would be vacated and be converted into a face-to-face directions hearing to discuss the issues which were appropriate to be dealt with by the AAT.

14                  Prior to the 3 April 2000 directions hearing, on 24 March 2000 the respondent filed and served a document containing detailed submissions and a draft of the orders and directions it submitted should be made.  The orders and directions in fact made by the AAT on 3 April 2000 were as follows:

“(a)     That application No. V2000/270 made by Rosemarie Helga Cook be dismissed for want of jurisdiction;

(b)       That Rosemarie Helga Cook is not to be joined as a party to applications for review Numbers V1995/977 and V1998/354 made by George Cook (“the applicant”);

(c)        That in respect of applications for review Numbers V1995/977 and V1998/354, the jurisdiction of the Tribunal upon review is limited to issues in respect of the applicant's left leg impairment and the applicant's hearing impairment;

(d)       That the Statement of Facts and Contentions lodged by the applicant and dated 14 March 2000 be returned to the applicant and that no copy be retained by this Tribunal;

(e)        That the applicant is to file and serve a Statement of Facts and Contentions strictly limited to the relevant issues before the Tribunal, being issues concerning the left leg impairment and the hearing impairment;

(f)        That the applicant comply with section 90 of the Seafarers Rehabilitation and Compensation Act 1992 (“the Seacare Act”) and provide to the Tribunal and the respondent all of the evidence upon which the applicant intends to rely 28 days before the date to be set for the hearing of applications for review Numbers V1995/977 and V1998/354;

(g)       That the hearing of applications for review Numbers V1995/977 and V1998/354 be scheduled for two (2) consecutive days commencing on a date to be fixed sufficient to allow the applicant to comply with section 90 of the Seacare Act and the respondent sufficient time to prepare its case in reply.”

15                  Orders (a) and (b) related to the lack of standing by Mrs Cook in respect of any claim before the AAT and were entirely appropriate orders to be made. Orders (c) to (g) inclusive consisted essentially of directions for the further prosecution of Mr Cook's claims. The appellants claimed before the primary Judge that they were denied natural justice before the AAT in the 3 April 2000 directions hearing and that the AAT member was biased. In carefully considered reasons the primary Judge has demonstrated why the appellants' claims in that regard are without foundation. No new basis for reaching the conclusion that the AAT erred in law has been advanced on appeal. I agree with the primary Judge that the AAT afforded the appellants a hearing that was conducted in a fair and proper manner. I would dismiss the appeal.

16                  I would add that Heerey J was not invited to and did not deal with the jurisdictional basis for the appellants’ claims but that his Honour dealt directly and comprehensively with the merits of each of the matters which the appellants advanced before him.

WEINBERG J:

17                  I agree for the reasons given by both Spender and Marshall JJ that the appeal should be dismissed. I agree in particular with the observations of Spender J regarding the undesirability of fragmentation through the bringing of inappropriate applications for judicial review of intermediate directions.

SPENDER J:

18                  The position is that there has been no error demonstrated in the order that Heerey J made as to costs and that is the end of the matter. The order of the Court is that the appeal be dismissed and that there be no order as to costs of the appeal.

Associate:

Dated:              23 May 2001