Cook v ASP Ship Management [2009] FCAFC 113

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.