FEDERAL COURT OF AUSTRALIA

Broadbent v Civil Aviation Safety Authority [1999] FCA 1871

ADMINISTRATIVE LAW - application to stay original decisions by the Civil Aviation Authority (CASA) after the Administrative Appeals Tribunal gave its reasons for decisions affirming CASA’s decisions.

Administrative Appeal Tribunal Act 1975 (Cth) s 41, s 44A

McPherson v Civil Aviation Authority (1991) 22 ALD 754 Dist

MICHAEL RUSSELL MARK BROADBENT v CIVIL AVIATION SAFETY

AUTHORITY

Q301 OF 1999

COOPER J

BRISBANE

23 DECEMBER 1999

THE COURT ORDERS THAT:

1.         The application is dismissed.

2.         The applicant pay the respondent’s costs of and incidental to the application for a stay to be taxed if not agreed. 

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

EX TEMPORE REASONS FOR JUDGMENT

1                     This is an application brought on behalf of the applicant for orders staying decisions of the Civil Aviation Authority (“the Authority”), relating to the cancellation of relevant pilots’ licences.  The cancellations were made on 1 March 1996.  The decision to cancel was the subject of proceedings Q156 of 1996 initiated in the Administrative Appeals Tribunal (“the Tribunal”). 

2                     Since the filing of the original proceedings in the Tribunal, further decisions have been taken by the authority which have also become the subject of applications for review to the Tribunal.  The further applications were Q970 of 1997 and Q932 of 1998. 

3                     The three matters were heard before Mr K L Beddoe, Senior Member.  The applicant was represented by counsel before the Tribunal, as was the respondent authority.  On 20 December 1999, the Tribunal delivered its reasons, affirming the decisions of the Authority. 

4                     On 8 March 1996, the Tribunal made an order staying the cancellation of the licences in so far as the cancellation related to the flying of a DC4 aircraft, operated by a business named Pacific Air Freighters.  The reasons of the Tribunal in Q156 of 1996 record that, on the 14 May 1996 a further stay order was made under s 41 of the Administrative Appeals Tribunal Act 1975 (Cth), which had the effect of staying the decision under review generally until the hearing and determination of the application for review or until further order.  As I read the Tribunal’s reasons, since 1996 the applicant has continued to fly aircraft under the relevant licences which he held in 1996, pursuant to the stays granted by the Tribunal.  The stays came to an end on Monday last when the Tribunal delivered its reasons.  It was the lapse of the stays which gave rise to this application.

5                     The power of this Court to stay either the decision of the Tribunal, or the decision in respect of which the Tribunal hearing was held, is to be found in s 44A of the Administrative Appeals Tribunal Act 1975 (Cth).  That section provides a power to stay where an appeal is instituted in this Court from a decision of the Tribunal if the Court is of the view that it is appropriate for the purpose of securing the effectiveness of the hearing and determination of the appeal.

6                     The statutory provision mirrors the general power of the Court to grant injunctive relief or relief by way of a stay, so that the subject matter of an appeal is not rendered nugatory before an appeal can be heard.  In the present case, the appeal to this Court is and remains always available, notwithstanding the presence or absence of a stay.  The absence of a stay merely means that the applicant will not be lawfully entitled to engage in flying activities or commercial flying activities until such time as he either obtains the benefit of a decision which sees the setting aside of the decisions of the Tribunal and the authority, or he obtains by some other means the grant of the relevant licences.  In my view, there is nothing in the material which indicates that a basis has been made out for a stay under s 44A(2) of the Act. 

7                     I was referred to a decision of Ryan J in McPherson v Civil Aviation Authority (1991) 22 ALD 754 as to the circumstances in which a stay of the suspension of a pilot’s licence would be considered.  That application appears to have been considered under s 41 of the Act, not under s 44A(2).  In the result, his Honour refused to grant the stay.  However, the reason that the stay was sought in that case, in contradistinction to this case, was that the period of suspension would have expired before the case was heard, or so it was claimed, and as such the appeal right would have been rendered nugatory in the absence of the grant of a stay.  This is not a suspension case; this is a cancellation case, and different considerations apply.

8                     It was submitted by the applicant that there will be damage to third parties if he is not restored to a position whereby he can lawfully fly and operate, in particular the DC4 aircraft in respect of which the stay previously operated for the purpose of carrying commercial freight. 

9                     I am not satisfied that the circumstances of those third parties are immediately relevant to the present proceedings.  I say that for these reasons.  The difficulties being confronted, if that be the case, by these companies, relate to the particular type of aircraft which they operate.  There are a limited number of persons licensed to operate the aircraft within Australia.  It is this characteristic of the aircraft, its acquisition notwithstanding this characteristic, and its use as a commercial freight carrier which are the prime cause of the problem presently confronting the operators.  One would reasonably expect that if a suitably qualified and licensed pilot could be found, then the difficulties, if any, confronted by the operators of the DC4 would be immediately alleviated. 

10                  That aside, these matters of third party loss appear to me, if they are relevant, to go to issues of balance of convenience and the like.  Before those balancing issues arise, it is necessary :

(i)         to show a head of power to make the stay and

(ii)        that there is a proper basis for making the stay in terms of the issues to be dealt with on the appeal, and, in securing the effectiveness of the appeal.

11                  In the circumstances I am satisfied that no order for a stay ought to be made under s 44A(2) as no proper basis for making such an order has been made out.  I dismiss the application.  The applicant will pay the respondent’s costs of and incidental to the application for a stay to be taxed if not agreed.

Associate:

Dated:              23 December 1999