Cook v ASP Ship Management [2001] FCA 598

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

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY V 809 OF 2000

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN: GEORGE WILSON COOK and ANOTHER

APPLICANTS

AND: ASP SHIP MANAGEMENT

RESPONDENT

JUDGES: SPENDER, MARSHALL AND WEINBERG JJ

DATE OF ORDER: 16 FEBRUARY 2001

WHERE MADE: MELBOURNE

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.

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY V 809 OF 2000

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN: GEORGE WILSON COOK and ANOTHER

APPLICANTS

AND: ASP SHIP MANAGEMENT

RESPONDENT

JUDGES: SPENDER, MARSHALL AND WEINBERG JJ

DATE: 16 FEBRUARY 2001

PLACE: MELBOURNE

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."