FEDERAL COURT OF AUSTRALIA

Cook v ASP Ship Management Pty Ltd [2008] FCA 1345

ADMINISTRATIVE LAW – judicial review – grounds of review – procedural fairness – refusal of application for adjournment – whether breach of Administrative Appeals Tribunal Act 1975 (Cth) s 39 – whether reasonable opportunity to present case

Administrative Appeals Tribunal Act 1975 (Cth) s 39

Opitz v Repatriation Commission (1991) 29 FCR 50 cited

GEORGE WILSON COOK v ASP SHIP MANAGEMENT PTY LTD

VID 690 of 2006

NORTH J

13 AUGUST 2008

MELBOURNE

THE COURT ORDERS THAT:

1.                  The application is dismissed with costs.

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

REASONS FOR JUDGMENT

1                     Before the Court is an appeal under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) (the Act) from a decision of the Administrative Appeals Tribunal (the Tribunal) made on 29 May 2006.  The Tribunal rejected an application for review of decisions made by the respondent, ASP Ship Management Pty Ltd, on 10 July 1995 and 13 June 2000.  Those decisions rejected claims made by the appellant, Mr George Cook, for compensation under the Seafarers Rehabilitation and Compensation Act 1992 (Cth).  Mr Cook had been successful in obtaining compensation for cellulitis contracted in July 1993 when he was employed as a ships engineer.  The decisions in question related to further impairments, which Mr Cook said related to the cellulitis and to an ankle injury which he said was sustained at the same time.

2                     Section 44(1) of the 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. 

The appellant argued that the question of law was whether he had been denied procedural fairness by the refusal of the Tribunal to adjourn the hearing of the application.  The appellant contended that the Tribunal had failed to comply with its obligation under s 39(1) which required the Tribunal to:

…ensure that every party to a proceeding before the Tribunal is given a reasonable opportunity to present his or her case…

3                     In determining whether an error has been made, it is first necessary to set out the chronology of events which led up to the refusal by the Tribunal to adjourn the hearing.

4                     On 6 May 2005, Mr Cook sent a fax to the Tribunal in which he indicated that a medical expert whom he wished to call, Mr Wearne, was only available to attend the Tribunal on a Friday.  At that point the hearing of the application had been listed on a series of dates which did not include a Friday.  Consequently, Mr Cook sought the cooperation of the Tribunal to accommodate Mr Wearne’s availability.  He also indicated that Mrs Rosemarie Cook, who was to attend the hearing, was not well and would only be able to attend if there was a substantial break between hearing days.

5                     On 12 May 2005, Mr Cook sent a further fax to the Tribunal in which he indicated that he would be available for a telephone directions hearing in relation to Mr Wearne’s availability, such directions hearing to be held on 16 May 2005.  On the following day, 13 May 2005, the Tribunal sent a fax to Mr Cook confirming that the directions hearing would proceed on 16 May 2005.  On 16 May 2005, Mr Constance, the senior member of the Tribunal, held the directions hearing by phone as programmed.  Mr Cook did not in fact participate in that hearing and Mr Constance determined that the listed dates of 21, 23 and 26 June 2005 for the hearing of the case would remain.  A fax on the same day from the Tribunal to Mr Cook confirmed this result.

6                     On 23 May 2005, a week later, Mr Cook sent the Tribunal a fax in which he explained that Mr Wearne had become available to appear before the Tribunal on the second programmed day of hearing, namely, 23 June 2005 at 2pm.  In the same fax Mr Cook indicated that it was difficult for Mrs Cook and he to attend the Tribunal and in order to avoid the exhaustion of travel they would need to stay in Melbourne for the purpose of the hearing and would be claiming their expenses in so doing.  Mr Cook indicated that Mrs Cook was still unwell and that it was impractical for him to attend without her.  In that regard he said:

Hearing participants who whisper/mumble and continually hide their faces do not allow the hearing impaired to absorb what is said/seen, and is an affront to natural justice.

He also made a complaint about the holding of the telephone directions hearing on 16 May, in the following terms:

I consider that the imposition of a telephone conference (16/05/05) also offends natural justice, particularly as a short directions hearing could have been held at Melbourne prior to 21 June, which is some four weeks away.

This complaint was made despite the fact that Mr Cook had agreed to participate in the directions hearing, although he ultimately did not do so. 

7                     On 16 June 2005, Mr Cook sent a fax to the Tribunal in the following terms:

I write to inform you of the ill-health of Rosemarie Cook.  Please refer to attached medical certificate.

To explain, Rosemarie has recently had two operations in her head, (10 May ’05 and 7 June ’05), and a follow up cautery at the Royal Victorian Eye and Ear Hospital.  A post operative infection followed the 7 June operation, it is being treated using antibiotics.  Bronchitis has also developed.

Her illness means that,

1)      I do not have a companion driver at hand to help me attend the Tribunal

2)      She cannot assist me on the appointed hearing dates

3)      She cannot give evidence to facts in her personal knowledge

…

The mattter [sic] will have to be rescheduled to dates to be fixed when Mrs Cook recovers.

8                     Attached to the fax was a medical certificate in relation to Mrs Cook, in template form, which provided that she:

…will be/was unfit for her normal work/study or for attending court from 21/06/2005 to 30/6/2006 inclusive due to a medical illness.

9                     On the same day, the Tribunal responded to Mr Cook as follows:

The Tribunal has received your application for adjournment.  Senior Member Constance has requested an urgent telephone directions hearing be listed to deal with your application.

Please let me know if you are available at 4.00pm this afternoon, 10.00am tomorrow morning, or some other time tomorrow.

If I do not hear from you this afternoon, a telephone directions hearing will be listed for 10.00am tomorrow morning.

10                  On the following day, Friday 17 June 2005, Mr Cook sent a fax to the Tribunal at 9am in the following terms:

As stated several times previously, it is impractical for me to attempt telephone directions.

The illnesses of Rosemarie Cook, (my Medical and General Power of Attorney) are beyond my control.  I live at a considerable distance from Melbourne and cannot access public transport.  When Rosemarie has recovered her health somewhat, then the case can proceed.

I have appointments schedule which will keep me from home today, and Monday, 20 June ‘05.

11                  On the same day the Tribunal sent a fax to Mr Cook, which noted his fax from the morning indicating to the Tribunal that he was unavailable for a directions hearing that day or the following Monday, and stated that nonetheless he would be called at 10am “just in case”.  Another fax from the Tribunal to Mr Cook on that day provided as follows:

I advise that the Tribunal resumed the Telephone Directions Hearing at 3:00pm today and note that you were unavailable to attend.

Senior Member Constance has considered your application and is not satisfied on the basis of information provided by you in your fax of 16 June 2005 that the matter should be adjourned and the application for adjournment is refused.

You should therefore appear at the Tribunal at 10:00am on Tuesday 21 May [sic] 2005 and be ready to proceed. 

The Tribunal has agreed to assist you to meet the reasonable costs of public transport to and from the hearing.  You will be reimbursed upon presentation of your tickets, or other verification of your expenses, to the Registry.

12                  On the following Monday, 20 June 2005, Mr Cook sent a fax to the Tribunal which he dated as at 10pm, stating the following:

I have returned home this evening and read the accumulated faxes sent to me.  I will respond to them as quickly as possible.

Telephone conferences are impractical due to my deafness.

I was not aware of the Practice Notice referred to, it has never been drawn to my attention, or sent to me.  Please refer to the recent report of Mr Wearne, which says I cannot use Public transport; that condition still, unfortunately exists.  Rosemarie Cook is still sick.  I will not therefore attend on 21, 23 and 28 of June ’05; my notification of inability to attend was transmitted to you with the minimum of delay; Mr Wearne[’]s (Orthopaedic Surgeon) booking for 2pm, 23 June has been cancelled. 

13                  Then on the following day, namely, the first day of the hearing of the case on Tuesday 21 June 2005, Mr Cook sent another fax to the Tribunal which provided as follows:

I write to reqest [sic] an urgent adjournment of the above matter.  I only become [sic] aware of the requirement to notify the presiding member or listing coordinator last night.

I request also that the hearing of this case be rescheduled as soon as is convenient.

I attach to this notification

1)  A fax sent to the affected parties on 16 June ‘05

2)  A letter of Mr Wearne; see – paragraph 1, page 2 regarding my mobility.

NOTE: The nearest operating train station is at Pakenham some 30 kilometres distant.  The next nearest is at Cranbourne, aproximately [sic] 36 kilometers [sic] away.

The Tribunal has on file details of my deafness and difficulties experienced with telephone communications.  Telephone directions are impractical.  Mail communications in the area are often delayed.

The best means of communication me [sic] is by fax, of which Deputy President Forgie and ASP’s legal team are aware.

Being in contact [with] Rosemarie Cook and her bronchitis has meant that I have myself now contracted bronchitis, for which I am taking antibiotics.

14                  The report of Mr Wearne dated 8 February 2005, was attached to this fax.  It reported on the history provided to Mr Wearne by Mr Cook and included the following:

As far as public transport was concerned he could use a train but was unable to use a bus or tram.

He drove a car fitted with automatic transmission and with a hand accelerator.  He had little difficulty with short trips but on long trips he was very dependent on the cruise control.  He would often become very tired when driving and would pull over into a parking area where he could rest and sleep for a short time.

15                  When the matter came on for hearing before the Tribunal on 21 June 2005, the Tribunal gave oral reasons why it intended to proceed under s 40(1)(b) of the Act, and refused the application by Mr Cook for an adjournment as follows:

We have given some consideration as to how the Tribunal should proceed in this matter, because of Mr Cook’s apparent reluctance to appear, as was communicated last week, and then finally by a fax that was received at around 10pm last night in the Tribunal fax, although it did not come to the notice of anyone until this morning.

In that facsimile he notified the Tribunal that he would not be attending on the 21^st, the 23^rd or the 28^th June, and in fact indicating that he has taken it upon himself to cancel the booking for Mr Wearne, Orthopaedic Surgeon, to attend the Tribunal on 2pm on 23 June.  In view of the long history of this matter, the Tribunal has decided to exercise the power given to it by s 40(1)(b) of the Act, which reads:

For the purposes of reviewing a decision, the Tribunal may proceed in the absence of a party who has had reasonable notice of the proceeding.

So it is the intention of the Tribunal to hear this matter, and to determine it in the absence of Mr Cook.  For the purpose of the transcript, so it is clear as to the basis upon which the Tribunal intends to take that step, I will take some time to simply record the steps that have been taken in this matter, to ensure that the matter could be heard and disposed of.

I would at the outset note that this matter goes back to an application lodged in 1995.  I certainly do not intend going into the whole history of the matter.  It is not a matter in which I have been involved until the matter was set for hearing today.  But I do note from the file that in the hearing certificate of 21 February 2005 lodged by Mr Cook, he indicated then that it may even be necessary that he attend by ambulance to enable him to appear at the hearing.  He also indicated that he intended to call Mr Wearne to give evidence, Dr Taylor, the medical practitioner, he would give evidence himself, and Rosemary Cook also to give evidence.

The matter was set down for today, 21 June, next Thursday the 23^rd, and the Tuesday of the next week, 28 June.  It was set down for those days following a request by Mr Cook that in fact the hearing be set down, I think, on one day per week.  That request was given due consideration, and the present hearing dates were set.

The Tribunal is satisfied that Mr Cook was notified of those hearing dates, and there is a notice of hearing of 17 March 2005 notifying the parties of that hearing.  There is absolutely no doubt that Mr Cook is aware of today’s hearing, in view of his various applications to adjourn the hearing today, and including his fax to which I have referred, which clearly indicates that he is aware of the dates and refers to the dates.

By a fax received on 6 May 2005, Mr Cook indicated to the Tribunal that Mr Wearne was unavailable to give evidence other than on an agreed Friday, and he indicated that he wished to have the Tribunal allocate a Friday hearing date.  My associate attempted to contact Mr Cook to arrange a telephone directions hearing to endeavour to sort out any problems relating to Mr Wearne giving evidence.  I note that in particular she had a telephone conversation with Mr Cook on 11 May 2005 at 3.30pm, when he returned her call.  On that occasion she had approximately a 15 minute telephone conversation with Mr Cook, at the end of which she indicated to me that she had had no difficulty in communicating with him by telephone. 

Notwithstanding that, Mr Cook indicated that he was not available for a telephone direction hearing in relation to Mr Wearne’s evidence, and that travelling into Melbourne for AAT hearings was difficult, and he did not want a directions hearing.  A telephone directions hearing was listed for 16 May 2005 at 2.30pm, and notice of that was sent to Mr Cook.  Mr Cook was not available on 16 May 2005 at 2.30pm by telephone, despite efforts by my associate to contact him, and despite he having advised by a fax of 12 May 2005 that he would be available for that telephone directions hearing.

My associate had also sent a fax to Mr Cook on 13 May 2005 advising him that the telephone directions hearing for 2.30pm on 16 May would go ahead for the purposes of determining how we would progress the matter.  That telephone directions hearing was held with counsel for the respondent, and I decided on that occasion that the matter would remain listed for 21, 23 and 26 June, and that information was conveyed to Mr Cook by a facsimile of 16 May 2005.

By fax received on 23 May 2005, Mr Cook advised that he had been able to arrange for Mr Wearne to give evidence at 2pm on Thursday 23 June 2005, which had indicated that that difficulty had been overcome.  Mr Cook raised in that facsimile that it would be impracticable to hold the hearing without Mrs Cook, who was then ill, because he said that participants who whisper, mumble and continually hide their faces do not allow the hearing impaired to absorb what is said, seen, and is an affront to natural justice.

I should indicate that having read the transcript of the proceedings in the Federal Court, that I note in those proceedings that Mr Cook was able to sit opposite counsel at the bar table, and that that appeared to resolve any difficulties with his hearing impairment.  And certainly had he been present, I was proposing that if he wished, that that same procedure would be adopted.

By a facsimile of 16 June 2005 received on that day, Mr Cook advised the Tribunal of the ill health of Mrs Cook, and indicated that her illness meant that he did not have a companion driver to help him attend the Tribunal, that she could not assist him on the appointed hearing dates, and she could not give evidence of facts in her personal knowledge.

In light of that facsimile, a telephone directions hearing was listed for 10 am on 17 June 2005 to deal with the application of Mr Cook in relation to progress of the hearing.  That followed efforts by my associate to speak to Mr Cook by telephone, and she was unable to achieve that.  A notice of the telephone directions hearing in accordance with the practice direction as to applications for adjournment within 10 days of the hearing date was issued.  Mr Cook was unavailable at 10am last Friday the 17^th, and a brief telephone directions hearing was held again with counsel for the respondent.  I adjourned that telephone directions hearing to 3pm on 17 June, again in an attempt to allow Mr Cook an opportunity to put any further information he wish[ed] to the Tribunal.

At 3pm last Friday, my associate again attempted to contact Mr Cook.  He was not available by telephone, and I note that a notice of that 3pm listing was sent by facsimile by the Tribunal to Mr Cook at 1303 on Friday.  In view of the fact that Mr Cook did not attend either of the listed telephone directions hearings and did not put any further information to the Tribunal, the application for an adjournment of the hearing date was refused.  And I should note for completeness that on that day the respondent applied for an adjournment of the hearing date based on the uncertainty as to what was likely to happen today, and the costs which would be incurred by the respondent in preparing for the matter if it did not proceed.  In the circumstances, I was not prepared to grant that application.

So the matter has come on for hearing today.  I should also note that Mr Cook was advised of that by facsimile on last Friday, and an offer was made by the Tribunal to meet his costs of public transport to the hearing, if he wished to avail himself of that.

In all the circumstances, the Tribunal considers it proper that this matter should proceed to hearing, and the Tribunal will discharge its duty to consider the matter, and endeavour to reach a proper conclusion on the basis of the material before it.  On that basis then we proposed to continue with the hearing. 

16                  Mr Alstergren and Mr Turner of counsel appeared pro bono for Mr Cook.  They argued that by refusing to grant Mr Cook an adjournment the Tribunal committed an error of law, namely, it failed to give Mr Cook a reasonable opportunity to present his case in breach of s 39 of the Act.  They contended that the Tribunal failed to take account of the fact that he was unrepresented.  It should have taken positive steps, they argued, to make contact with Mr Cook rather than simply offer him a phone directions hearing on 16 June 2005.

17                  Further, the Tribunal should have explained to Mr Cook that the purpose of such a directions hearing was to have him elaborate on the basis upon which he sought the adjournment.  It was argued that the Tribunal failed to take account of the effect of the refusal of the adjournment, namely, that Mr Cook would not be able to lead his own evidence or cross-examine the respondent’s witnesses on the days then fixed for hearing. 

18                  The Tribunal took into account that the matters went back as far as 1995, and that in February 2005 Mr Cook gave thought to the difficulty of attending the hearing and considered that he may have to use an ambulance for that purpose.  In its reasons the Tribunal then noted that the hearing days were disjoined following a request made by Mr Cook.

19                  As outlined at [15] the Tribunal in its oral reasons recounted the events from 6 to 23 May 2005 and observed that Mr Cook had no difficulty in communicating by phone with the Tribunal on a past occasion.  It recorded that Mr Cook had indicated he would participate in a phone directions hearing in relation to the timing of Mr Wearne’s evidence on 16 May 2005 and then failed to do so.  It referred to the problem raised by Mr Cook in the fax of 23 May 2005 that Mr Cook may not be able to attend without the assistance of Mrs Cook, and indicated that arrangements could be made at the hearing to overcome the problems raised by her absence.

20                  The Tribunal then recorded in its reasons the issues raised by Mr Cook in the fax of 16 June 2005, namely, that he did not have a companion driver, that Mrs Cook was not able to assist him on the appointed hearing days and that she could not give evidence of the facts within her personal knowledge.  The Tribunal then recorded its efforts to convene a phone directions hearing on 17 June 2005.  The Tribunal decided to refuse the application because Mr Cook did not put any further information to the Tribunal in support of his application to adjourn the hearing and did not attend the phone directions to do so.  It indicated that it would cover the reasonable costs of Mr Cook’s attendance by public transport.

21                  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. 

22                  The Tribunal had no obligation to detail to Mr Cook the shortcomings of his material.  It was reasonable for the Tribunal to give him the opportunity of explaining and advancing his application at a phone directions hearing.  In this respect, the case differs from Opitz v Repatriation Commission (1991) 29 FCR 50 where at 58 to 59, it was held that the applicant was denied an opportunity of putting further evidence to the Tribunal due to the unusual circumstance of his evidence by phone being interrupted by the advent of an earthquake.

23                  In Bourke v Companies Auditors & Liquidators Disciplinary Board (1998) ACLC 1380 the circumstances were also quite different.  There the Tribunal refused an adjournment partly on the basis that the medical condition of the applicant had not been corroborated.  This decision was procedurally unfair because the opposing lawyer had accepted the reality of the applicant’s illness in conversations between them and had not indicated to the Tribunal that he had done so.

24                  The Tribunal in this case attempted to mitigate any difficulty for Mr Cook attending the Tribunal by suggesting that a directions hearing would be held by phone.  There is nothing to suggest that the Tribunal failed to take into account the fact that Mr Cook was unrepresented or, if it was bound to do so, that it failed to take into account the consequences of proceeding in the absence of Mr Cook.  Indeed, it recorded that it acted under s 40(1)(b) which is directed to the conduct of a proceeding in the absence of a party. 

25                  For these reasons the application is dismissed.

Associate:

Dated:         1 September 2008