FEDERAL COURT OF AUSTRALIA

Civil Aviation Safety Authority v Bellamy [2017] FCA 829

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be allowed.

2.    The decision of the Tribunal be set aside.

3.    The matter be remitted to the Tribunal, differently constituted, to be heard and determined according to law.

4.    The respondent pay the applicant’s costs of the appeal.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

TRACEY J:

1    This appeal from the Administrative Appeals Tribunal (“the Tribunal”) raises questions relating to the respondent’s entitlement to hold a private pilot’s licence. The applicant, the Civil Aviation Safety Authority (“CASA”), had cancelled Mr Bellamy’s licence under reg 269(1) of the Civil Aviation Regulations 1988 (Cth) (“the Regulations”). An application for review by Mr Bellamy to the Tribunal was successful. It set aside CASA’s decision and determined that Mr Bellamy’s licence remained valid and must be treated as never having been cancelled: see Bellamy and Civil Aviation Safety Authority [2016] AATA 956.

2    CASA’s appeal to this Court is brought pursuant to s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) (“the AAT Act”).

3    CASA challenges the lawfulness of the Tribunal’s decision on a number of grounds. In order to understand the basis of the challenge it is necessary to record the factual context in which these legal issues arise.

THE FACTUAL BACKGROUND

4    The circumstances in which the legal issues arise are not, for the most part, contentious. They are recorded in a statement of agreed facts from which the following summary is drawn.

5    Mr Bellamy has held a private pilot licence in the aeroplane category since 2002. He has never held such a licence in the gyroplane category.

6    On 16 July 2010 Mr Bellamy attempted to conduct taxi runs in a gyroplane on a runway at the Bendigo Airfield. On his fourth attempt he lost control of the aircraft. It fell sideways. The main rotor hit the runway. The aircraft was destroyed. The runway surface was damaged. Fortunately, Mr Bellamy was not injured.

7    At the time of the crash Mr Bellamy had no solo gyroplane flying experience. He had no authorisation or exemption under the Civil Aviation Act 1988 (Cth) (“the Act”) or regulations made under it which permitted him to taxi a gyroplane.

8    Mr Bellamy had commenced restoring the gyroplane in 2001. In 2009 he had approached Mr Darren Barnfield who was a licensed aviation maintenance engineer. Mr Barnfield inspected the gyroplane and gave Mr Bellamy a list of works which had to be undertaken before a certificate of air worthiness could be granted. One of these requirements was that the gyroplane be test flown by a suitable test pilot.

9    Mr Bellamy completed the rebuild of the gyroplane in about June 2010. At that time he provided log books and restoration and maintenance records to Mr Barnfield. At no time between the provision of the log books and maintenance records and the crash did Mr Barnfield issue a certificate of airworthiness in respect of the gyroplane.

10    On the day of the crash Mr Bellamy approached another licensed aviation maintenance engineer, Mr Raymond Goulding. He asked Mr Goulding for a blank maintenance release form. Mr Bellamy filled in that form with details of the gyroplane. In the box on the form which sought the identification of an aircraft maintenance engineering licence or authority number, Mr Bellamy wrote “Ref Darren Barnfield SAAA”. “SAAA” is an acronym for the Sport Aircraft Association of Australia. Mr Barnfield had not given approval to Mr Bellamy to insert his name on the form.

11    An investigation into the crash was instituted under the Act. In the course of the investigation Mr Bellamy was required to produce his pilot log books and the maintenance release. In response to this requirement he produced the maintenance release which he had completed.

12    Following the investigation Mr Bellamy was charged with two offences. The first, preferred under s 29(1) of the Act, alleged that he had operated an aircraft in contravention of a provision of Part III of the Act, namely s 20A(2), by being reckless as to whether the manner of operation could endanger “the person or the property of another person”. The second was that, contrary to s 145.1(1) of the Criminal Code Act 1995 (Cth) sch 1 (“Criminal Code”) he had knowingly used a false document (the maintenance release) with the intention of dishonestly inducing the investigator (as a Commonwealth public official) to accept it as genuine and, if it was so accepted, to dishonestly influence the exercise of a public duty or function, namely the outcome of the inquiry.

13    On 5 June 2014 the charges were heard in the Magistrates’ Court of Victoria. The first charge was dismissed. Mr Bellamy was convicted of the second charge, was fined and was ordered to pay disbursement and witness costs.

14    Mr Bellamy appealed to the County Court of Victoria. Following a rehearing he was, on 11 June 2015, again convicted of an offence under s 145.1(1) of the Criminal Code. Judge Maidment imposed a fine of $2,500 and Mr Bellamy was required to pay witness and professional costs totalling almost $30,000.

15    In July 2015 CASA served a notice on Mr Bellamy under reg 269(3), calling on him to show cause why his pilot’s licence should not be varied, suspended or cancelled under reg 269(1) of the Regulations. That regulation provided that CASA could cancel a licence if satisfied that one or more prescribed grounds had been established. Having considered submissions made by Mr Bellamy, a CASA delegate determined to cancel Mr Bellamy’s licence. The delegate acted on two grounds.

16    The first was failure, by Mr Bellamy, in his duty with respect to a matter affecting the safe operation of aircraft (reg 269(1)(c)). The second was that he was “not a fit and proper person to have the responsibilities and exercise and perform the functions and duties of the holder of … a licence” (reg 269(1)(d)).

17    Mr Bellamy then applied to the Tribunal for a review of that cancellation decision. Following that review, as already noted, the Tribunal ordered that CASA’s decision be set aside.

THE TRIBUNAL’S DECISION

18    The Tribunal commenced its reasons by outlining Mr Bellamy’s attempts to restore the gyroplane and to have it approved for flight operations. It then turned to details of the accident and, in doing so, recorded Mr Bellamy’s evidence that the taxiing of the aircraft at high power carried with it the possibility that it would leave the ground and “unintentional flight” might occur (at [35]). There was evidence before the Tribunal that Mr Bellamy filled in the maintenance release to document the state of airworthiness of the gyroplane in case of unintentional flight.

19    Notwithstanding this evidence, the Tribunal found it strange that Mr Bellamy had found it necessary to prepare a maintenance release form at the time because he did not require a maintenance release in order to conduct ground testing.

20    As already noted, one of the reasons advanced by CASA for finding that Mr Bellamy had failed in his duty relating to the safe operation of an aircraft and was unfit to hold a licence was that he had knowingly used a false document (the maintenance release) with the intention of dishonestly inducing a CASA investigator to accept it as genuine.

21    So much had been held by the Magistrates’ and County Courts. The Tribunal acknowledged this but sought to ameliorate the consequences when exercising its discretion under reg 269(1). It said (at [47] and [48]) that:

47.    As I have already stated above [at] [19], Mr Bellamy was not authorised to issue a maintenance release nor was he authorised to conduct maintenance of the J2 gyroplane. The reference to Mr Barnfield on that maintenance release was clearly misleading. Furthermore, a maintenance release is only required to issue prior to flying the aircraft concerned. Because Mr Bellamy did not intend to fly the J2 gyroplane, there was no good reason why he required a maintenance release in the first place.

48.    The Magistrates’ Court found Mr Bellamy guilty of knowingly using a false document, namely maintenance release A67450, with the intention of dishonestly inducing a person in his capacity as a public official to accept it is genuine and if so accepted, to dishonestly influence the exercise of a function of a public official contrary to subsection 145.1 (1) of the Criminal Code Act 1995. That was despite the fact that it was unnecessary to have a maintenance release for the purpose of doing his intended ground runs. Mr Bellamy was acquitted of the second charge related to the reckless operation of an aircraft under s. 29 of the Civil Aviation Act.

(Formatting in original.)

22    The Tribunal emphasised that Mr Bellamy had been engaged in what it described as “ground runs” rather than flying. CASA had argued that Mr Bellamy had contravened reg 229(1) of the Regulations which prohibited a person from taxiing an aircraft anywhere on an aerodrome unless the person held a pilot’s licence endorsed for the type of aircraft being taxiied or was otherwise approved by CASA. A contravention is a criminal offence of strict liability. The Tribunal held that reg 229 had no application because it did not cover “private operations” (at [55]). It was common ground that the Tribunal had erred in so holding and that Mr Bellamy had contravened the regulation when he had taxied the gyroplane on a runway at the Bendigo Airport.

23    The Tribunal held that, despite the conviction arising out of the production of a false document in relation to the gyroplane, Mr Bellamy was entitled to retain his aeroplane licence.

24    The Tribunal gave separate consideration to each of the two grounds on which CASA had relied when cancelling Mr Bellamy’s licence.

25    It commenced with the alleged failure by Mr Bellamy of his duty regarding the safe operation of aircraft. It summarised a number of instances in which Mr Bellamy was alleged to have failed in this duty. They included the issue by him of the maintenance release, his criminal conviction for using a false document, the operation of a gyroplane while not holding a valid gyroplane licence, conducting maintenance without a licence, the taxiing of an aircraft without approval to do so, operating an aircraft in such a manner that he was likely to injure himself or others or damage the property of himself or others, and operating an aircraft while being reckless as to those possible consequences.

26    In dealing with this “safe operation” ground the Tribunal said that:

106.    While plainly I cannot go behind the conviction recorded against Mr Bellamy for knowingly using a false maintenance release, the circumstances in which this arose appear to be linked to his firm belief, albeit erroneous, that being responsible for the maintenance of that aircraft meant he could in fact perform maintenance and sign-off a maintenance release. A maintenance release must be signed-off before the aircraft can be flown. There was no such regulatory requirement for the purpose of conducting ground operations. Mr Bellamy never intended to fly the aircraft but only to conduct ground operations. The evidence before me supports that contention.

…

108.    The authorisation to conduct taxiing or ground operations of a private aircraft was confused by CASA. I am unable to find any regulation which was valid in 2012 dealing with such operations of private aircraft. Regulation 229 of the CAR only applies to air service operations and reg. 5.50 applies to testing the aircraft during flight. Nevertheless, my research has revealed that Mr Bellamy may have breached CAO 95.12.1 2006. For the purposes of assessing whether Mr Bellamy’s PPL – aeroplane should be cancelled, I have assumed that he has breached that CAO.

…

110.    Even if I am wrong about whether CASA may rely on the way in which Mr Bellamy conducted his ground operations on 16 July 2010 for the purpose of its cancellation decision, I would find that those operations do not establish a sound basis for cancellation of his PPL – aeroplane. First, in conducting those operations Mr Bellamy did not breach reg. 229 of the CAR. Secondly, a maintenance release was not required to have issued because the aircraft was not to undergo a flying operation. Thirdly, it cannot be said that Mr Bellamy was reckless as to whether the manner of operation could endanger the person or property of another person. Injury to himself or his property is not [a] relevant consideration. Finally, assuming he did breach CAO 95.12.1 2006, there was no evidence that he intentionally did so. In fact he seems to have taken some considerable effort to comply with all legislative requirements, despite his misunderstandings.

…

116.    Furthermore, all of those circumstances do not point to a translation of that failure to Mr Bellamy repeating the offending conduct in relation to his PPL – aeroplane. For example, there was no blatant or wanton disregard of statutory provisions. There was some misunderstanding. The circumstances arose solely from the restoration and attempt to certificate the J2 gyroplane. Accordingly, I find that this limb of reg. 269, while enlivening CASA’s discretion to cancel his PPL – aeroplane, should not form the basis of a cancellation decision in Mr Bellamy’s case.

…

118.    The activity with which one needs to be concerned in Mr Bellamy’s case is the operation of a fixed wing aeroplane while exercising the privileges of his PPL. As I have already stated, there is no evidence before me which suggest that Mr Bellamy acted deliberately in contravention of any legislative provisions dealing with the operation of aircraft generally. In fact, Mr Bellamy appeared to be at pains to follow regulatory materials even though he plainly misconstrued some provisions. That includes the conduct leading to his conviction regarding the maintenance release document.

27    The Tribunal then turned its attention to the “fit and proper person” ground. It commenced by quoting a passage relating to the meaning of the term “fit and proper person”, drawn from the joint judgement of Toohey and Gaudron JJ in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 380. It was common ground that this passage contained the legal test to be applied when determining fitness and propriety for the purposes of reg 269(1)(d).

28    The Tribunal continued:

120.    Mr Bellamy’s criminal conviction in respect of the issue of the maintenance release arose out of a genuine misunderstanding by Mr Bellamy of the need to have some documentation in place prior to him conducting ground operations. While of course I cannot go behind the conviction, the circumstances which gave rise to it may be considered. He did not sign that maintenance release form. He did sign for the daily inspection which, ordinarily, he would be authorised to do (see Schedule 8 of the CAR, item 22). Therefore there was no suggestion that he was trying to mislead CASA into believing any maintenance work which had been done on the aircraft had been signed off by a person authorised to do so. In fact the maintenance release was irrelevant to Mr Bellamy’s intended ground operations of the J2 gyroplane.

121.    I did not have any evidence before me indicating that Mr Bellamy’s operations of that aircraft as holder of a PPL, which he has had since 13 August 2002, attracted the attention of CASA. That being the case, I find that there is no sound basis for coming to the conclusion that Mr Bellamy is not a fit and proper person to hold a PPL – aeroplane.

29    The Tribunal then concluded that:

122.    Despite Mr Bellamy having had a very unfortunate experience in his attempt at restoration and testing his J2 gyroplane, I have found that was no evidence upon which CASA can soundly base a suspension of his PPL. All of the difficulties which Mr Bellamy encountered, including his conviction in the Magistrates’ Court, stemmed from his gyroplane involvement. I had no evidence before me that similar circumstances would arise in the future as far as his fixed-wing operations are concerned. Mr Bellamy did not blatantly ignore the advice given to him by CASA and he appeared to have made significant attempts to comply with all legislative requirements as they existed at the time, which were not as clear as perhaps they could have been. I have found that he is a fit and proper person to hold the PPL – aeroplane.

CASA’S APPEAL

30    CASA submitted that the Tribunal had made three errors of law. They were that:

    the Tribunal’s errant finding that reg 229 did not apply to the private operations that Mr Bellamy was undertaking at the time of the crash misled the Tribunal when it was considering whether or not the disqualification grounds had been made out;

    the Tribunal had misapprehended the elements of the offence for which Mr Bellamy had been convicted, and had made findings of fact which were inconsistent with findings which had been made in the criminal proceedings; and

    the Tribunal had assessed Mr Bellamy’s fitness and propriety to hold a private pilot’s licence in the aeroplane category on the mistaken basis that his fitness to hold such a licence was to be treated as being distinct from, and unaffected by, his conduct in relation to his operation of a gyroplane and his use of a false maintenance release with the specific intention of unlawfully misleading the CASA investigator and unlawfully influencing CASA’s investigation of the crash.

The error in construing reg 229 and its consequences

31    Mr Bellamy did not argue, in the Tribunal, that reg 229 did not apply to the taxiing of his gyroplane on the day of the accident. CASA submitted that Mr Bellamy had instead argued before the Tribunal that he had not breached that regulation because he held a pilot’s licence. Mr Bellamy did not challenge this submission. CASA advised the Court that the Tribunal had not sought submissions from the parties as to the application of reg 229. Had the issue been raised, CASA said that it would have been able to point to reg 209(1), which provides that the operator of an aircraft engaged in private operations is required to comply with the provisions of the Regulations. Reg 229 should not, therefore, have been read down in the way in which the Tribunal did.

32    The Tribunal’s finding that reg 229 did not apply to the conduct which led to the accident influenced its assessment of both grounds under s 269(1) on which CASA had relied when cancelling Mr Bellamy’s licence. In dealing with the first “safe operation” ground (s 269(1)(c)), the Tribunal commenced by restating its misconstruction of reg 229 when it said (at [108]) that:

The authorisation to conduct taxiing or ground operations of a private aircraft was confused by CASA. I am unable to find any regulation which was valid in 2012 dealing with such operations of private aircraft. Regulation 229 of the CAR only applies to air service operations …

It then held (at [110]) that “in conducting those operations Mr Bellamy did not breach reg. 229”. This finding influenced a further finding (at [116]) that Mr Bellamy had not engaged in any blatant disregard of statutory provisions. Later (at [118]), when considering the second “fit and proper person” ground, the Tribunal said that there was “no evidence before [it] which suggest [sic] that Mr Bellamy acted deliberately in contravention of any legislative provisions dealing with the operation of aircraft generally”.

33    While accepting that the Tribunal had misconstrued reg 229, Mr Bellamy submitted that this error had not had any material bearing on the Tribunal’s application of reg 269(1)(d) in relation to whether he was a “fit and proper person”. He stressed that the Tribunal’s reasons were not to be read overzealously with a view to identifying error: see Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 271–272 (Brennan CJ, Toohey, McHugh and Gummow JJ); Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 at 287; [1993] FCA 456 at 13 (Neaves, French and Cooper JJ).

34    Even when the required allowance is made in order to ensure that the Tribunal’s reasons are not analysed with a view to discerning error, I am not persuaded that its error, in the present case, in relation to the reach of reg 229, did not have a material impact on its determination of the first ground on which CASA relied, namely the “safe operation” ground.

35    The Tribunal (at [108]) found that CASA had been “confused” about the application of reg 229 to taxiing or ground operations of a private aircraft. The first of four reasons given by the Tribunal for rejecting CASA’s submissions on the “safe operation” ground was that Mr Bellamy’s conduct, on the day of the crash, did “not establish a sound basis for cancellation of his [licence]” because he had not breached reg 229 (at [110]). At [116] the Tribunal found that “there was no blatant or wanton disregard of statutory provisions”. A similar observation is to be found at [118] in relation to the second ground.

36    In Hill v Repatriation Commission (2005) 218 ALR 251 at 266–267; [2005] FCAFC 23 at [81]–[83], the Full Court (Wilcox, French and Weinberg JJ) considered the implications of a finding by the Court, on appeal, that the Tribunal had erred in law. Their Honours said that:

[81]    If an error of law can be seen to have affected the decision reached, or arguably even possibly have done so, ordinarily the decision will be set aside: BTR Plc v Westinghouse Brake & Signal Co (Aust) Ltd (1992) 34 FCR 246 at 254; 106 ALR 35 at 42; 26 ALD 1 at 7 (BTR). As a general proposition, it will be of no consequence that the decision is capable of being supported on a different basis. Nor will it be of any consequence that the decision can be justified on the available evidence.

[82]    Another way of approaching the matter is to say that a decision will be set aside once error of law has been demonstrated unless it is manifestly clear that the error in no way contributed to the decision: Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 384; 94 ALR 11 at 59; 21 ALD 1 at 43 per Toohey and Gaudron JJ.

[83]    It is well established that, in the context of appeals from the AAT, the court may decline to set aside a decision even where an error of law has been demonstrated provided that it considers that the AAT arrived at a decision that was clearly correct on the material before it: McAuliffe v Secretary, Department of Social Security (1992) 28 ALD 609 at 618; Morales v Minister for Immigration and Ethnic Affairs (1995) 60 FCR 550 at 560; 41 ALD 71 at 80 and Harris v Repatriation Commission (2000) 62 ALD 161 at 163; [2000] FCA 1687.

See also Repatriation Commission v Knight (2012) 202 FCR 451 at 456; [2012] FCAFC 83 at [23] (Finn, Gilmour and Perram JJ); Screen Australia v EME Productions No 1 Pty Ltd (2012) 200 FCR 282 at 294; [2012] FCAFC 19 at [52] (Keane CJ, Finn and Gilmour JJ). And see House v Defence Force Retirement and Death Benefits Authority (2011) 193 FCR 112 at 121, 138–139, 146; [2011] FCAFC 72 at [31] (Greenwood J), [133]–[135] (Gilmore J) and [174] (Logan J); Shrestha v Minister for Immigration and Border Protection [2017] FCAFC 69 at [12] (Bromberg J), [45] (Bromwich J) and [124]–[126] (Charlesworth J).

37    In my view, a fair reading of the Tribunal’s reasons demonstrates that its view about the inapplicability of reg 229 in the circumstances influenced its decision in relation to the first “safe operation” ground relied on by CASA in support of its cancellation decision. A correct construction of reg 229 and acceptance that Mr Bellamy had contravened that provision would have had the potential also to influence the Tribunal’s assessment of the second ground, namely Mr Bellamy’s fitness and propriety to hold a pilot’s licence.

38    The Tribunal’s decision must be set aside on this ground.

39    Although it is not strictly necessary to do so, I propose to deal also with the other grounds relied on by CASA. This is because they were fully argued and may relate to matters which fall for determination on any re-hearing.

Treatment of Mr Bellamy’s conviction

40    CASA submitted that the Tribunal had erred by founding its decision, in part, on reasoning which was inconsistent with the convictions recorded against Mr Bellamy by the Magistrate’s Court and the County Court.

41    The offence of which Mr Bellamy was convicted, it will be recalled, was that, contrary to s 145.1(1) of the Criminal Code, he had knowingly produced a false document (the maintenance release) to a CASA investigator with the intention of dishonestly influencing the investigator to accept it as genuine and, if it was so accepted, to dishonestly influence the exercise of a public duty or function, namely, the investigation of the gyroplane crash. The elements of that offence were that Mr Bellamy had:

    known that the document (the maintenance release) was a false document;

    used the document with the intention of dishonestly inducing another person (the investigator) in their capacity as a Commonwealth public official to accept it as genuine; and

    used the document with the intention , if it was so accepted, of dishonestly influencing the exercise of a public duty or function (the investigation).

42    Each of these elements was established beyond reasonable doubt in both courts. So much may be concluded from the convictions without regard to the underlying reasoning of the Magistrate and the Judge.

43    In Minister for Immigration and Ethnic Affairs v Daniele (1981) 39 ALR 649 at 653; (1981) 61 FLR 354 at 358; [1981] FCA 247 at pp 7–8, Fisher and Lockhart JJ held that, where a conviction is the genesis of a power, the Tribunal could examine the circumstances which surrounded the commission of an offence in order to enable it to make its own assessment of the nature and gravity of the offending but that it could not “ignore the conviction or set it at nought”. If, however, a conviction is not the foundation of an exercise of power, as is the case with regs 269(1)(c) and (d), the Full Court has said on a number of occasions that an administrative decision-maker may consider the facts on which the conviction is based: see Ridley v Secretary, Department of Social Security (1993) 42 FCR 276 at 281–282; [1993] FCA 282 at pp 13–14 (Spender, Gummow and Lee JJ); see also Today FM (Sydney) Pty Ltd v Australian Communications and Media Authority (2014) 218 FCR 461 at 483; [2014] FCAFC 22 at [90] (Allsop CJ, Robertson and Griffiths JJ), citing with approval Saffron v Commissioner of Taxation (1991) 30 FCR 578 at 582; [1991] FCA 473 at pp 5–6 (Davies J). Nevertheless, a conviction provides strong prima facie evidence of the facts upon which it is founded. A “heavy onus” falls on any person who seeks, in the Tribunal, to challenge such facts: see Minister for Immigration and Multicultural Affairs v Ali (2000) 106 FCR 313 at 325; [2000] FCA 1385 at [43] (Branson J), cited with approval in Minister for Immigration and Border Protection v Truong [2016] FCAFC 54 at [73] (Tracey, Flick and Griffiths JJ). See also Beckner v Minister for Immigration, Local Government and Ethnic Affairs (1991) 30 FCR 49 at 50; [1991] FCA 331 at p 4 (Davies J).

44    CASA sought to rely on a number of factual matters which had been referred to by the County Court Judge when he convicted Mr Bellamy of an offence under s 145.1 of the Criminal Code. These were facts, it was submitted, on which his Honour had relied in order to find the charge proven. The County Court Judge’s reasons were not before the Tribunal and I do not consider that they can be relied on in this appeal. That is not to say that they may not be of relevance on a rehearing.

45    I am not persuaded that the Tribunal based its decision on factual findings which were inconsistent with the conviction. Rather, its error was its failure to give any relevant consideration to the conviction when assessing Mr Bellamy’s fitness and propriety.

46    Whilst the Tribunal was able to have regard to mitigatory factors it was not at liberty to ignore the elements of the offence when reaching its decision on fitness and propriety. It is apparent that the Tribunal did ignore those elements, especially at [120]. It is difficult to see how it could be maintained that Mr Bellamy’s conviction arose out of “a genuine misunderstanding”, as was said at [120], unless what is being suggested is that Mr Bellamy obtained and engrossed the maintenance release form in the mistaken belief that it might be needed to support some aspect of the taxiing which he was proposing to undertake. This is, perhaps, consistent with the Tribunal’s assertion (at [48]) that it was unnecessary for Mr Bellamy to hold a maintenance release for the purpose of doing his intended ground runs. A similar observation appears at [106]. Mr Bellamy’s explanation was that it might have been necessary to have completed such a form lest the gyroplane unexpectedly took flight during the taxiing operations. The Tribunal appears to have ignored this explanation in finding that there was no need to have such documentation in place because Mr Bellamy was only conducting ground operations. That said, the mistaken belief (if there was one) which led Mr Bellamy to create a false document cannot mitigate the fact that he knowingly deployed that false document in an intentional and dishonest attempt to influence CASA’s investigation.

47    The Tribunal was also wrong to find that Mr Bellamy did not sign the maintenance release form. He did.

48    The Tribunal’s statement (at [120]) that there was “no suggestion that [Mr Bellamy] was trying to mislead CASA in to believing any maintenance work which had been done on the aircraft had been signed off by a person authorised to do so” may literally be true but misses the point. Mr Bellamy had been convicted of dishonestly seeking to influence the exercise of CASA’s investigatory powers. He had been convicted on the basis that he had done so intentionally.

49    These were matters which were plainly relevant to the assessment of Mr Bellamy’s fitness and propriety to hold a pilot’s licence of any category. They appear to have been wholly ignored by the Tribunal in making its finding.

The licence dichotomy

50    The Tribunal ventured an additional reason (at [121]) for rejecting CASA’s contention that Mr Bellamy was not a fit and proper person to hold a pilot’s licence. It was that there was no evidence which indicated that Mr Bellamy’s operation of the gyroplane as a holder of a pilot’s licence had attracted the attention of CASA. It went on to hold (at [122]) that all of the “difficulties” he had experienced (of which the conviction was one) had stemmed from his use of the gyroplane rather than as the operator of a fixed wing aircraft.

51    CASA submitted that such a distinction was artificial. The criminal conduct had occurred whilst Mr Bellamy was the holder of a pilot’s licence for a fixed wing aircraft. He did not have a licence to fly a gyroplane. He was, at all relevant times, subject to the Act and Regulations.

52    I accept these submissions. The artificial distinction, drawn by the Tribunal, implies that the criminal conviction can have no bearing on Mr Bellamy’s fitness and propriety to hold a pilot’s licence. His production of a false document in the course of an inquiry into the crash of a gyroplane cannot be quarantined from the question of his fitness to hold a pilot’s licence for fixed wing aircraft. The fact that Mr Bellamy had not attracted the adverse attention of CASA when flying fixed wing aircraft may have been a factor to be weighed in his favour when assessing his fitness to hold the licence. It cannot be a reason for not bringing into account the offence of dishonesty in dealing with CASA in the course of an inquiry into his use of a different type of aircraft.

DISPOSITION

53    The appeal should be allowed and the Tribunal’s decision set aside. Mr Bellamy should pay CASA’s costs of the appeal.

54    CASA submitted that the matter should be remitted to a differently constituted Tribunal. Whilst acknowledging that the Tribunal had not made any adverse credit findings, it submitted that the case provided “a prime example of a case where a complicated process of fact finding has miscarried through a combination of factors”. Those factors included the assessment of Mr Bellamy’s fitness and propriety, the rejection of the evidence of CASA witnesses and of CASA’s submissions on matters which would fall for reconsideration upon remitter. Reliance was placed on the decisions of the New South Wales Court of Appeal in Seltsam Pty Limited v Ghaleb (2005) 3 DDCR 1 at 8–9; [2005] NSWCA 208 at [13]–[16] (Mason P) and [141] (Ipp JA) and the Western Australian Court of Appeal in Legal Profession Complaints Committee v Rayney [2017] WASCA 78 at [243] (Martin CJ, Murphy JA and Corboy J agreeing).

55    Mr Bellamy, on the other hand, contended that there was no need for any rehearing to be conducted by a different member. He submitted that there was nothing, in the Tribunal’s reasons or in its conduct of the appeal, to suggest to a fair-minded observer that the member might not approach any further hearing with an open mind: cf Seltsam at [142]. Furthermore, it was submitted, the additional time and expense which would be involved if the appeal were to proceed afresh before a different member was not warranted in all the circumstances.

56    In Comcare v Broadhurst (2011) 192 FCR 497 at 515–517; [2011] FCAFC 39 at [88]–[95] Flick J and I considered the authorities relating to the exercise of the Court’s discretion to direct that, upon remittal, the matter be heard and determined by a different member. At 516–517 [94] we said that:

[t]he manner in which that power should be exercised, however, is to be resolved by reference to the facts and circumstances of each individual appeal. The power … should not be more confined than that. The exercise of the power should not be approached with any inclination that it should “usually” be exercised in one manner rather than another. Whether any specific direction or order should be made by this Court on appeal as to the constitution of the Tribunal, or whether the constitution of the Tribunal should be left for determination by the President, should not be constrained by any pre-determined formulae or by any attempt to characterise those factors where one order rather than another may be more appropriate.

See also Hollis v Comcare [2017] FCA 558 at [34] (Katzmann J).

57    In Seltsam, Mason P (at [13], with whom Ipp JA agreed) contemplated a case where the interests of justice required a rehearing before a different tribunal member. While the particular case involved credibility-based findings, Mason P also indicated that the interests of justice may require a rehearing even where the credit of witnesses was not in issue. Such an order may be warranted where the appearance of justice might be compromised by a concern relating to prejudgment. Such a concern might exist even in the absence of a factual basis for suggesting that the original decision-maker might harbour a disposition in favour of the party who was originally successful: see at [14]. His Honour accepted that the power should be exercised with caution: at [15].

58    Rayney was an appeal to the Court of Appeal of Western Australia from a decision of the Western Australian State Administrative Tribunal, which had dismissed professional disciplinary proceedings brought by the Legal Complaints Profession Committee against the respondent, Mr Rayney. Various grounds were relied on by the Committee in the appeal, one of which was denial of procedural fairness. All grounds were successful and the appeal was allowed. The decision of the Tribunal was set aside and the matter was remitted to it for substantive hearing and determination by a different member.

59    There is nothing in the reasons of Martin CJ (with whom Murphy JA and Corboy J agreed) by way of explanation of why it was considered appropriate or necessary to remit the matter to a differently constituted Tribunal. The decision in Rayney, therefore, provides little assistance to CASA.

60    In the present matter there is a range of competing considerations which must inform the exercise of the Court’s discretion. There is no suggestion that the member made any adverse credit findings against any witness, indicated a preference for the evidence of one witness over another or failed to afford the parties procedural fairness. On the other hand, the question of Mr Bellamy’s fitness and propriety to hold a pilot’s licence involved a value judgment based on an assessment of his conduct. The misconstruction of reg 229 played some part in this process and resulted from an analysis of the legislation and a conclusion which had not been urged on the Tribunal by either party. There was also an apparent inclination to minimise the implications of a criminal conviction for dishonesty.

61    This, in my view, is a case in which it would be fairer to the parties were the matter to be heard by a differently constituted Tribunal: cf Northern NSW FM Pty Limited v Australian Broadcasting Tribunal (1990) 26 FCR 39 at 42–43; [1990] FCA 642 at p 6 (Davies and Foster JJ). Any rehearing should not take any longer than the first and may well be shorter if the parties are able to agree that the Tribunal can act on uncontroversial material which was considered by the Tribunal at the first hearing.

62    There will be an order that any rehearing proceed before a differently constituted Tribunal.

Associate:

Dated:    28 July 2017