Cook v A.S.P. Ship Management Pty Ltd And A.S.P. Ship Management Pty Ltd v Cook
[2004] FMCA 46
•23 January 2004
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| COOK v A.S.P. SHIP MANAGEMENT PTY LTD AND A.S.P. SHIP MANAGEMENT PTY LTD v COOK | [2004] FMCA 46 |
| ADMINISTRATIVE LAW – Preliminary issue – application to adduce further evidence refused. |
Administrative Appeals Tribunal Act1975, s.46
| Applicant: | GEORGE WILSON COOK |
| Respondent: | A.S.P. SHIP MANAGEMENT PTY LTD |
| File No: | MZ 720 of 2003 |
| Applicant: | A.S.P. SHIP MANAGEMENT PTY LTD |
| Respondent: | GEORGE WILSON COOK |
| File No: | MZ 721 of 2003 |
| Delivered on: | 23 January 2004 |
| Delivered at: | Melbourne |
| Hearing Date: | 23 January 2004 |
| Judgment of: | McInnis FM |
REPRESENTATION
| File No: | MZ720 of 2003 |
| George Wilson Cook: | In person |
| A.S.P. Ship Management Pty Ltd: | Mr. J. Lenczner of Counsel |
| Solicitors for the A.S.P Management Pty Ltd: | Middletons Lawyers |
| File No: | MZ 721 of 2003 |
| A.S.P. Ship Management Pty Ltd: | Mr. J. Lenczner of Counsel |
| Solicitors for the A.S.P. Management Pty Ltd: | Middletons Lawyers |
| George Wilson Cook: | In person |
| FEDERAL MAGISTRATES MELBOURNE |
MZ 720 of 2003
| GEORGE WILSON COOK |
Applicant
and
| A.S.P. SHIP MANAGEMENT PTY LTD |
Respondent
MZ 721 of 2003
| A.S.P. SHIP MANAGEMENT PTY LTD |
Applicant
and
| GEORGE WILSON COOK |
Respondent
REASONS FOR DECISION
There are two Applications before the court seeking to appeal from a decision from the Administrative Appeals Tribunal (AAT). It should be noted that both Applications were issued in the Federal Court and then transferred to the Federal Magistrates Court. The Application by ASP Ship Management was issued first in the Federal Court even though it now has a court number in this court which would make it appear to have been issued after Mr. Cook’s Application.
In this Application a preliminary issue has arisen as to whether or not the Applicant, George Cook, in his Application should be permitted to adduce further evidence for the purpose of this appeal, which, as indeed in the case of the cross appeal, is an Application which must necessarily be based upon the concept of an error of law pursuant to s.44 of the Administrative Appeals Tribunal Act 1995 (the AAT Act).
Mr. Cook has made Application that he should be permitted to call evidence from two medical practitioners who he has indicated were not available to give evidence on his behalf before the AAT at its hearing. He has noted that the issue of the unavailability of the medical evidence, namely from Mr. Max Wearne and Dr. Gillian Taylor, was raised before the AAT, and he has indicated to this court, that the unavailability of both witnesses was due to circumstances effectively beyond his control.
It is clear from a proper reading of the AAT's reasons that at least in part, the AAT turned its mind to the unavailability of medical evidence and the fact that the issue was agitated before the AAT has been confirmed by Mr. Cook before the court this day.
Mr. Lenczner, who appears for A.S.P. Ship Management, the Respondent to Mr. Cook's Application and the Applicant in the first Application, has opposed the Application made by Mr. Cook to adduce further evidence at this court of the kind described. Mr. Lenczner has submitted that the nature of this hearing is a hearing to consider whether or not, there has been an error of law, and it is not a review or a hearing de novo based upon the facts. In those circumstances, he submits it is inappropriate for this court to permit Mr. Cook to adduce the further evidence.
In my view, the issue having been raised and agitated before the AAT and the AAT having considered the matter and proceeded to make its decision, and refer to other evidence then available to it, clearly indicates that in the circumstances, that issue of availability of medical practitioners was an issue that was alive and agitated before the AAT. In any event, in my view, on an Application of this kind, whether or not the issue had been agitated before the AAT, it is rare for this court to permit Applicants to adduce further evidence of the kind sought to be adduced by the Applicant. It would be, in my view, inconsistent with the role of this court on an Application of this kind to permit evidence to be adduced at this stage.
In my view, it is inappropriate to permit such evidence to be adduced, but out of an abundance of caution, if at the end of the hearing of this matter I form a view that such evidence may be of assistance to the court, and that the court may validly and lawfully receive the evidence, then I am prepared to review the matter. At present, it is my view and by way of preliminary ruling that Mr. Cook should not be permitted to adduce the evidence.
I certify that the preceding seven (7) paragraphs are a true copy of the reasons for decision of McInnis FM
Associate:
Date: 23 January 2004
0
0
0