Cook v ASP Ship Management (2000)

FC 00/1393

4 October 2000

Heerey J

REASONS FOR JUDGMENT

1 This is an appeal against certain orders and directions made by the Administrative Appeals Tribunal constituted by Senior Member B.G. Gibbs AM on 1 May 2000. The first applicant, Mr George Cook, was formerly employed by the respondent as a marine engineer. He made claims against the respondent under the Seafarers Rehabilitation and Compensation Act 1992 (Cth) (“the Seacare Act”). The first claim was in respect of an infection of his left leg which has resulted in cellulitis. The respondent has accepted responsibility in respect of that claim and has made weekly payments. However, it has determined Mr Cook is not entitled to a lump sum because his incapacity is less than 10 percent: Seacare Act, ss 39, 41. Mr Cook’s second claim was in respect of loss of hearing. The respondent has denied liability.

2 Mr Cook brought applications for review by the Tribunal in respect of the leg claim (V1995/977) and the hearing loss claim (V1998/354).

3 The second applicant, Mrs Rosemarie Cook, the wife of Mr Cook, also brought an application for review (V2000/270) claiming for care and household services rendered to her husband.

4 On 21 February 2000 Deputy President Forrest fixed a hearing for three days to commence on 3 April 2000. He also directed that the applicants file a statement of facts and contentions pursuant to s 33(2A)(c) of the Administrative Appeals Tribunal Act 1975 (Cth) (“the AAT Act”). On 14 March 2000 the applicants filed a document entitled “Response to directions of Deputy President Forrest 21 February 2000”. This document includes the following:

(i) detailed allegations of defects in systems adopted on the vessel “Searoad Tamar” in relation to the pumping of oils, water, sewerage and other residues;

(ii) details of medical treatment of Mr Cook;

(iii) an account of an “abusive telephone call” from an officer of the respondent directing that Mr Cook return to work;

(iv) details of how a doctor conducted a medical examination which was “fraudulent and untruthful” and “dishonestly touted as appropriate” by the respondent’s solicitors;

(v) allegations of fraudulent connivance and negligent advice by a firm of solicitors acting for Mr Cook;

(vi) allegations of various other fraudulent representations by the respondent’s solicitor;

(vii) allegations of breach of duty of care by senior officers of the “Searoad Tamar”.

5 This is said to be “not an exhaustive list” of the statements Mr Cook would make as a witness.

6 The document further states that Mrs Cook, “the witness/joined party” will “say and expand” that she has suffered “financial, emotional and physical harm from the actions and inactions” of officers of the respondent and its insurers and solicitors. There are allegations of the master of the “Searoad Tamar” belittling her and saying that Mr Cook was “malingering and lazy” when she knew he was “close to death”. There are detailed assertions as to hardship caused by the failure to increase her husband’s compensation payments and as to the extent of his disabilities. She states she has joined her husband’s case because she is

“denied money that is rightfully mine. I am the only one who attends his needs and cares that he is sick all the time. I am entitled to the attendant/carer’s benefit: I should be recompensed for the damage which has been done to me, which is still being done to me”

This is said to be “not an exhaustive list of my evidence”.

7 There is then a “Statement of Issues” as follows:

“(1) Lump sum payments for the impairments resulting from various employments with (the respondent);

(2) payment of the full benefits laid down in the SRCA until 65 years with medical benefits to continue beyond that time;

(3) full reimbursement of the sums I have laid out today;

(4) an irrevocable guarantee that my reimbursements will be paid in full, and promptly;

(5) the whole issue of my superannuation entitlements be paid until I am 65 years of age;

(6) a payment of damages from each of the following parties for their involvement in the attempted frauding of myself and my wife. Fraud not being allowed or encouraged under the SRCA, the law of Victoria or of the Commonwealth of Australia.

A A.S.P Ship Management

B Middletons Moore and Bevins

C Morris Blackburn and Co, now Morris Blackburn Cashman

D Buzzard

E Brack

F I reserve my position regarding Turly

(7) Supply of wheelchair, NAD required hearing aids without delay

(8) Recognition that notwithstanding considerable impairments established so far, that the most serious impairment is the blood poisoning and the recurrent effects of cellulitis I continue to suffer from

(9) That ASP stop insisting that I can work for another employee in view of 8 above

(10) That my wife’s claim for attendant/carer benefits be processed without delay and the sums remitted to a separate account she will nominate.”

2 On receipt of this document the respondent’s solicitors requested a telephone directions hearing. This was held by Senior Member Gibbs on 22 March 2000. Counsel for the respondent submitted that the document raised issues which were beyond the jurisdiction of the Tribunal and also irrelevant and scandalous allegations against persons not parties. There were also matters which were not disclosed as required by s 90 of the Seacare Act.

3 Senior Member Gibbs directed that the hearing which was scheduled to commence on 3 April would be in the nature of a “face to face” directions hearing to allow the parties an opportunity to identify the issues that were correctly before the Tribunal. Counsel for the respondent undertook to provide the Tribunal and the applicants with written submissions setting out the respondent’s assertions as to what issues were properly within the jurisdiction of the Tribunal.

4 On 24 March the respondent filed and served detailed submissions. In conclusion (par 19) it was submitted that the following orders and directions be given:

“1. The application V2000/270 be dismissed in accordance with s 43B of the AAT Act;

2. The Tribunal direct that Mrs Cook not be joined as a party to the proceedings numbered V1995/977 and V1998/354;

3. The Tribunal decide that on the present application the Tribunal’s jurisdiction is limited to the leg impairment and the hearing impairment;

4. The Tribunal direct that the Facts & Contentions dated 14 March 2000 be destroyed by the Registrar or alternatively returned to Mr Cook and that no copy be retained by the Tribunal;

5. The Tribunal direct that Mr Cook prepare, file and serve a Statement of Facts and Contentions limited to the issues before the Tribunal:- namely the leg impairment and the hearing impairment;

6. The Tribunal direct that Mr Cook comply with s 90 of the Seacare Act and provide to the Tribunal and the Respondent all of the evidence that he intends to rely 28 days before the date to be set for the hearing of his applications for review; and

7. The Tribunal adjourn any further hearing of the applications for review beyond 3 April 2000 to a date to be fixed sufficient to allow Mr Cook to comply with s 90 of the Seacare Act and the respondent sufficient time to fully prepare its case in reply.”

11 On 3 April the applicants and Mr J.R. Wallace, counsel for the respondent, appeared before Mr Gibbs. At the outset Mr Gibbs referred to the respondent’s document of 24 March and in particular the directions sought. He said that he would like to hear argument on those submissions. Mrs Cook announced that she was speaking on behalf of her husband.

12 Counsel for the respondent then explained the statutory context in which the claims arose. Amongst other things, counsel pointed out that many of the matters claimed, such as irrevocable guarantees for full reimbursement of unspecified sums and payment of superannuation entitlements, were beyond the jurisdiction of the Tribunal. Also he said there were scurrilous and defamatory remarks about people who were not parties to the proceedings. Counsel’s oral submissions take up about 16 pages of transcript. The following exchange then occurred:

13 MR GIBBS: Now, Mr and Mrs Cook, I think what I need to put to you first of all, and you have heard what Mr Wallace has had to say this morning and you have had a copy of the document that he has been referring to, do you feel that you would be better served or …

14 MRS COOK: I haven’t got it with me so, I am sorry, I don’t know what he was talking about.

15 MR GIBBS: Do you feel that you may perhaps want time to consider whether you ought to be represented, legally represented?

16 MRS COOK: No.

17 MR GIBBS: I mean, it is entirely your decision but …

18 MRS COOK: We had more like one law firm, and both times – three times, very bad advice, absolutely shocking, who will be dealt with very soon. And there’s no way we can – my husband would trust anybody else.

19 MR GIBBS: Well, as I say, it’s entirely your decision.

20 MRS COOK: Yes. No, it was very bad advice.

21 Mr GIBBS: As long as you – and I think you probably do – fully understand that in – particularly in this compensation jurisdiction, it can be quite difficult for lay people to let alone examine witnesses in-chief but to cross-examine witnesses, and even more so when the evidence that is trying to be tested by a lay person is to do with medical evidence, medical matters. And I just want you to be aware or alert to …

22 MRS COOK: I am very familiar; very very much in medicine, it’s my pet hobby. I know medicine backwards, frontwards and everywhere. I’m very good.

23 MR GIBBS: Well, that’s fine and if that’s your decision …

24 MRS COOK: I can help my husband with medicine anywhere.

25 MR GIBBS: Yes, all right. Now you have an opportunity, obviously, now to respond to Mr Wallace, if that is what …

26 MRS COOK : I think it is so much.

27 MR GIBBS: If that is what you want to do.

28 Mrs Cook then immediately commenced speaking about the medical treatment her husband had received and his present problems with showering and the like. The transcript then records:

MR GIBBS: Yes. I don’t want to interrupt you unnecessarily, but what you are …

MRS COOK: But I have to help him, with my back.

MR GIBBS: Oh yes, I know, but what you are putting to me now is really matters to do with evidence. What I am trying to find out from you is …

MRS COOK: Well, I only answer what Mr Wallace said.

MR GIBBS: Yes.

MRS COOK: You know, he said that this is not valid – I don’t even – half of it. It’s like a monotone going in my head. This is not and this is not and this is not. Well, my husband does need help, if it’s me or somebody else. He needs desperately help.

MR GIBBS: Yes. Would it help if you tried to address these points that Mr Wallace has put down in paragraph 19 of this document that you have got in front of you? See, the first point is that he is saying that – he is submitting that your application should be dismissed on the basis that it is frivolous and/or vexatious within the terms of the AAT Act.

MRS COOK: You answer that.

MR COOK: Do you want me to answer?

MRS COOK: I can’t answer that. I don’t know that.

14 Mr Cook then said that if counsel and the respondent’s solicitor thought that this was an “entirely frivolous matter that he was crippled, periodically in a wheelchair, usually on crutches and sticks” then the law was “in great need of changing”. Mr Cook also spoke of his problems with his eyesight. Mrs Cook said she had to drive him everywhere. Mr Cook said that a very onerous duty had been passed on to his wife which was “almost like slavery”. The transcript records more of this in the same vein and then the following:

15 MR GIBBS: Well, these are matters that you will be putting to me at the hearing.

16 MRS COOK: Okay I didn’t know, sorry.

17 MR GIBBS: Can we just move on to – and I understand what you are saying …

18 MRS COOK: My husband needs – sorry, sir, but my husband needs help desperately.

19 MR GIBBS: Yes. Can we just move on to what Mr Wallace is submitting in relation to the statement of facts and contentions.

20 MRS COOK: Which one is that.

21 MR GIBBS: Well that is item 4.

22 MRS COOK: Number 4. Oh yes. The Tribunal – the Tribunal direct the facts and contentions dated 14 March 2000 be destroyed by the registrar or alternatively … Mr Cook that no copy be retained. Number 4.

23 MR GIBBS: Now, you have heard what Mr Wallace had to say about that.

24 MRS COOK: No, my husband doesn’t hear.

25 MR GIBBS: No, but you have.

26 MR COOK: What I can say about this, Mr Gibbs, is I don’t know why Mr Wallace would put this presentation. It’s obviously impossible to destroy papers once they are created. I recently did criminal law and a piece of paper, once it’s in circulation, who is to say who copies it. … must and even this gentleman – even stole paper from the Oxford University, an examination paper, and they couldn’t do anything about it. These papers are in the public view. People have seen them and there is absolutely no way they can be destroyed.

27 MR GIBBS: Well, I think what …

28 MR COOK: Or their import.

29 MR GIBBS: Yes, what is concerning Mr Wallace is that those documents have been originated and they contain allegations or assertions which are unfounded, indeed even worse, and that at least by destroying the documents …

30 MR COOK: I am lip reading.

31 MR GIBBS: … you are doing as much as you can to rectify what is regarded as an unfortunate situation. Now, putting aside …

32 MR COOK: Mr Gibbs, if I may say, my wife has tremendous total recall and she – the phone call the other day, I heard it again at a later time. If I understand it correctly, Mr Wallace, and by extension, ASP and Leslie, are saying that there have been scandalous and scurrilous statements. I agree with them but they haven’t been by me. I have spoken the truth. I have spoken – I speak the truth to you and I’m quite willing to speak it to anyone else. Scandalous and scurrilous, it’s unbelievable the things that have been said about me. For instance, there is a document in the Commonwealth Rehabilitation Service – I only have a rash. The people on the ship tried to say I only have a rash. My God, I was near death and the medical evidence backs it up.

33 How can these scandalous and scurrilous statements to this import be allowed to exist and yet they existed. I’m not saying they should be destroyed. No, I’ll wear it and so will they one day.

34 Mr Cook then said that the limitation of the hearing impairment and leg impairment was “plainly crazy” because any leg impairment and blood problems were all “corollary things for the leg itself”.

35 Mr Gibbs then asked about point 6 of the respondent’s submission. Mrs Cook said in substance that her husband’s condition and medications made it difficult for them to provide answers but they would try their best to do what they could. Mr Gibbs then moved to point 7. Mrs Cook said they were under the understanding that the hearing started tomorrow. After some discussion, in the course of which Mr Cook said that “there was no doubt that some ship owners have used murder”. Mr Gibbs said that he was not about to embark on a hearing until such time as he was satisfied that everything was in order to have “a proper orderly hearing on the day”. He indicated that he would give a decision as quickly as possible so that he could get the matter listed for hearing as early as possible.

36 On 1 May Mr Gibbs gave the decision now appealed from. He stated that he was satisfied as to the correctness of the submissions made by Mr Wallace and made the directions sought.

37 In a notice of appeal filed on 10 May 2000 the applicants complained of a lack of procedural fairness. It was said that natural justice was not observed, to the detriment of the presentation of their case in time for the responses they were requested to deliver. They were not allowed to make “timely responses to the allegations and assertions of Wallace”. There was said to be “narrow make ultra vires” in “disregarding the sickness and injuries of the applicants” and “broad ultra vires” in that the legislative intention of the Seacare Act was to form a framework for “the timely, humane settlement of compensation claims” and was not envisaged as “a forum for filibustering over claims”.

38 In an amended notice of appeal filed on 5 June allegations were made of apprehended bias. It was said that an observer would have seen “an obviously ill man attending in a wheelchair” and a woman “obviously unfamiliar with court procedure given scant opportunity to make replies and waved down or curtailed in the answers required” and the instructing solicitor “urging the barrister to keep talking and use up the available time consequently not allowing the points he made so laboriously to be answered or corrected at the time, the woman being frustrated and flustered in her attempt to speak”. Proceedings were “curtailed” and there was “mutual jubilation and self congratulations” of the barrister, solicitor and representative of the respondent.

39 In the hearing before me Mr Cook (his wife not being present) asserted that it was plain that they were never allowed to present their claims. The whole matter was over in 84 minutes although three days had been set aside. He said the respondent’s counsel went on at great length and his wife attempted to speak but was waved down. The transcript showed there had been “travesty of justice”. There was bias and abuse of “natural process”. There was a “lack of scruples” by Mr Gibbs. His experience as a former Commodore in the Royal Australian Navy meant that he did not “entertain constraints of the merchant service”.

40 This appeal is concerned with the propriety of the conduct of the hearing on 3 April 2000. The necessity for such a hearing was obvious. There could be no satisfactory determination of the applicants’ substantive applications on the basis of their document of 14 March. That document contained material which was wholly irrelevant to the determination of a claim under a no fault compensation scheme such as that provided by the Seacare Act. Further, there were also irrelevant and scurrilous allegations against persons not parties to the proceeding in respect of matters over which the Tribunal did not have jurisdiction. The purported appeal by Mrs Cook was beyond jurisdiction since, quite apart from its merits, there had never been a determination by the respondent: Seacare Act Pt 6.

41 It was in this context that the hearing on 3 April took place. It is not surprising that Mr Gibbs observed at the outset that he was “really astonished” at the state the matter was in for a matter that had been listed for hearing. (This of course is no criticism of Deputy President Forrest who no doubt fixed the matter for hearing on the reasonable assumption that a proper statement of contentions of fact and law would be filed.)

42 I have set out at some length passages from the transcript of the hearing on 3 April because they show that the applicants’ complaints in the present appeal are without foundation. Since the respondent had asked for the hearing, Mr Gibbs naturally enough commenced by asking counsel for the respondent to outline his case. This Mr Wallace did. The matter was not without complexity. Mr Wallace had to put the matter in its legislative context and explain the proceedings to date and the problems caused by the applicants’ document of 14 March. The transcript shows that he did this in a concise and logical fashion. It is absurd to suggest that he “filibustered”. “Filibuster” is a parliamentary term meaning “the use of obstructive tactics, such as making prolonged speeches or using irrelevant material, in order to delay legislative action” (Macquarie Dictionary). However long Mr Wallace took (and I certainly do not think he spoke for an unreasonable time) the applicants were not restricted in their ability to put whatever they wished to say.

43 The applicants were given a fair hearing. Mr Gibbs displayed considerable patience in drawing them back to the points made by Mr Wallace. So far from there being a failure to give them an opportunity to be heard, the transcript repeatedly shows instances where either Mr or Mrs Cook interrupted or spoke over Mr Gibbs.

44 The hearing of 3 April was conducted in a fair and proper manner. No reasonable bystander could take it that Mr Gibbs approached the hearing with a view prejudiced against the applicants, whether by reason of his naval background or otherwise.

45 The application will be dismissed with costs.

47 Dated: 4 October 2000


Counsel for the Respondent:	Mr J R Wallace

Solicitors for the Respondent:	Middletons Moore & Bevan

Date of Hearing:	20 September 2000

Date of Judgment:	4 October 2000