FEDERAL COURT OF AUSTRALIA

Christidis v Civil Aviation Safety Authority [2006] FCA 615

GEORGE JOHN CHRISTIDIS  v  CIVIL AVIATION SAFETY AUTHORITY

VID 554 of 2006

RYAN J

25 MAY 2006

MELBOURNE

THE COURT ORDERS THAT:

1.         The applicant’s motion for interlocutory relief be refused.

2.         The applicant pay the respondent’s costs of and incidental to the said motion for interlocutory relief, including its costs of the hearing on 24 May 2005.

3.         The directions hearing herein be adjourned to a date to be fixed.

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

REASONS FOR JUDGMENT

1                     The applicant by his substantive application seeks a review under the Administrative Decisions (Judicial Review) Act 1997 (Cth) (“the AD(JR) Act”) of an administrative decision said to have been made by the respondent Civil Aviation Safety Authority (“CASA”) to “cancel or purport to cancel the applicant’s Commercial Pilot (Helicopter) Licence (“the licence”) pursuant to section 32(1) of the Trans-Tasman Mutual Recognition Act 1997 (Cth)” (“the Mutual Recognition Act”).

2                     The applicant has, since February 2000, held a Commercial Pilot Licence (Helicopter) issued by CASA.  In February 2001, he underwent helicopter flight training in New Zealand and, in January 2002, applied to the New Zealand Civil Aviation Authority (“the NZCAA”) pursuant to the Mutual Recognition Act for registration as a helicopter pilot.  On 11 March 2002 the NZCAA issued him with a New Zealand Commercial Pilot’s Licence (Helicopter) which bore a rubber stamp impression “Issued In Accordance With The Provisions Of The TTMRA.”  After attending an instructor training course in New Zealand, the applicant was issued by the NZCAA with a Category C flight instructor rating with effect from 6 May 2002.  That rating was endorsed on the back of his New Zealand Commercial Pilot Licence (Helicopter).  In about mid-July 2005, the NZCAA detected what it regarded as anomalies in the flight times recorded in the applicant’s log book and, on 13 July 2005, it suspended his New Zealand licence and Category C flight instructor’s rating for 10 days.  The NZCAA notified the applicant of that suspension by letter dated 13 July 2005.  That suspension was extended to 12 August 2005 and the extension was notified to the applicant by letter dated 27 July 2005.  With effect from 12 August 2005, the applicant’s New Zealand Commercial Pilots Licence (Helicopter) and his flight instructor rating were revoked and the applicant was, by letter dated 12 August 2005, advised of the revocation and of his right to appeal against it to a New Zealand District Court. 

3                     Because he was no longer residing at the address to which they had been sent, the applicant received none of the three letters referred to in [2] above.  He was, accordingly, unaware of the revocation of his New Zealand licence until 24 April 2006 when he received a letter from CASA dated 28 March 2006.  That letter recited;

‘The Civil Aviation Safety Authority of Australia (CASA) has been advised by the Civil Aviation Authority of New Zealand (NZCAA) that your New Zealand Commercial Pilot Helicopter Licence and your New Zealand Category C Instructor rating were revoked by the Director of the New Zealand Civil Aviation Authority on 12 August 2005 on disciplinary grounds.

Under the provisions of subsection 32 (1) of the Trans-Tasman Mutual Recognition Act 1997 (TTMRA)., if a licence issued under the TTMRA in New Zealand is subsequently revoked on disciplinary grounds, then the original Australian licence is automatically cancelled by virtue of the revocation of the New Zealand licence.  As your New Zealand licence was revoked on disciplinary grounds, CASA has accordingly noted on its records the cancellation of your Australian licence.

If, at any time, you wish to apply to CASA for reinstatement of your licences you must do so in writing together with supporting information and evidence as to why you believe the licences should be reinstated.

I therefore give you notice, in accordance with regulation 301 of the Civil Aviation Regulations 1988, that I require you to surrender your cancelled Australian Commercial Pilot (Helicopter) Licence to me at the address below within 21 days.’

4                     By letter dated 17 May 2006 to CASA, the solicitors for the applicant contended that s 32 of the Mutual Recognition Act only operated to cancel a licence issued by CASA to a pilot whose initial registration had been in New Zealand and had been cancelled by the NZCAA.  CASA rejected that contention by letter dated 19 May 2006 in these terms;

‘I refer to your letter dated 17 May 2006

I advise and reiterate that CASA has not cancelled your clients CASA issued Commercial pilot (helicopter) licence (CPHL).  CASA has informed your client that by the operation of section 32 of the Trans-Tasman (Mutual Recognition) Act (TTMRA), your client’s CASA issued CPHL is now taken to be cancelled as at the date the Civil Aviation Authority of New Zealand cancelled the CPHL issued by it.

Section 32 is applicable regardless whether the CASA issued CPHL was issued by virtue of the TTMRA or not (see definition of ‘registration’ in section 4 of the TTMRA).

Section 32(2) of the TTMRA provides that CASA may reinstate your client’s CPHL.  I am currently considering your client’s request that CASA do so. However, I am not able to complete that consideration until your client provides:

1.         extracts from his pilot log book for the periods concerning the matters raised by the CAA;

2.         a full and detailed explanation in response to the various breaches that the CAA allege your client committed.

3.         details (a) as to his flying time in the past 3 years (a copy of his log book would suffice), and (b) details as to the names of his employers for the past 3 years, and (c) an explanation as to why he did not inform the CAA of his change of address.

4.         a submission as to why, given the findings of the CAA, why CASA should form a view that your client is a fit and proper person to hold a CPHL.  I prefer your client personally provide any such written submission.

This information is needed so that I can be in a position to understand (a) the basis for the cancellation of your client’s CPHL by the CAA, and (b) why your client is a fit and proper person to hold a CPHL.

When I have the above information I will be in a position to make a decision concerning your client’s application that his CPHL be reinstated pursuant to section 32(2) of the TTMRA.’

5                     The applicant has deposed that his sole source of income is as a commercial helicopter pilot and, by implication, that he will suffer grave financial hardship unless his Australian Commercial Pilots Licence (Helicopter) is restored.  He has exhibited to an affidavit in support of his application testimonials to his skill as a helicopter pilot, his reliability and his dedication to safety. 

6                     As well as a review and setting aside of the alleged decision of CASA, the applicant seeks an order that “pending the hearing and determination of this application the cancellation or purported cancellation of the licence be stayed.”  CASA, on the other hand, has filed a notice of objection to the competency of the whole application on the following grounds;

‘1.        the applicant’s application fails to disclose a reviewable decision under the ADJR Act in that neither of the purported decisions of the respondent referred to in the application is “of an administrative character”;

2.         the applicant’s application fails to disclose relevant “conduct” of the respondent under the ADJR Act in that the respondent has not engaged in conduct for the purpose of making a decision to which the ADJR Act applies.’

7                     Section 32 of the Mutual Recognition Actprovides;

‘(1)      If a person's registration in an occupation in New Zealand:

(a)        is cancelled or suspended; or

(b)        is subject to a condition;

on disciplinary grounds, or as a result of or in anticipation of criminal, civil or disciplinary proceedings, then the person's registration in the equivalent occupation in an Australian jurisdiction is affected in the same way.

(2)       However, the local registration authority of the Australian jurisdiction may reinstate any cancelled or suspended registration or waive any such condition if it thinks it appropriate in the circumstances.

(3)       This section extends to registration effected apart from this Act.

(4)       This section has effect despite any other provisions of this Part.’

8                     “Registration” is defined in s 4(1) of the same Act as including;

‘the licensing, approval, admission, certification (including by way of practising certificates), or any other form of authorisation, of a person required by or under legislation for carrying on an occupation.’

9                     The contention advanced by Mr Kewley of Counsel for the applicant essentially involves a construction of s 31 which imports a limitation into subs (1) confining its application to a person’s registration to a case in which the person’s registration in an occupation in New Zealand which has been cancelled had been that person’s first or initial registration as between Australia and New Zealand in respect of that occupation.  There is no warrant in the language of the section for importing that limitation.  Even if the section be regarded as containing an ambiguity, which, in my view, it does not, no assistance in resolving that ambiguity can be derived from the Second Reading Speech when the Bill which became the Mutual Recognition Act was introduced in the House of Representatives.  The Minister (Mr McGauran) is recorded at pp 7624 and 7627 of Hansard for 4 December 1996 as having said;

‘The purpose of the Trans-Tasman Mutual Recognition Bill is to establish a scheme for the mutual recognition of regulatory standards for goods and occupations adopted in Australia and New Zealand. The principal aim of mutual recognition is to remove impediments to trans-Tasman trade in goods and the mobility of labour caused by regulatory differences among Australian jurisdictions and New Zealand.

… … …

The arrangement is consistent with the government’s election commitment to reduce the regulatory burden and compliance costs faced by business and to establish a protocol for the reciprocal recognition of professionals’ standing in order to promote the objectives of the closer economic relations trade agreement with New Zealand.

… … …

For occupations, the legislation is expressed to apply to individuals and occupations carried on by them. Registered practitioners wishing to practise in another jurisdiction will be able to notify the local registration authority of their intention to seek registration in an equivalent occupation there and provide the required evidence. The local registration authority then has one month to process the application and to make a decision on whether or not to grant registration. Pending registration, the practitioner is entitled, once the notice is made and all necessary information provided, to commence practice immediately in that occupation, subject to the payment of fees and compliance with various indemnity or insurance requirements in relation to that occupation.’

10                  Nor does the Explanatory Memorandum which accompanied the same Bill provide any support for the applicant’s construction.  The only paragraph directed to the clause which became s 32 of the Mutual Recognition Act recites;

‘The clause provides that if a person’s registration in an occupation in New Zealand is cancelled or suspended, or subject to a condition, on disciplinary grounds or as a result of or in anticipation of criminal, civil or disciplinary proceedings, the person’s registration in an equivalent occupation in an Australian jurisdiction is affected in the same way (whether or not the registration was effected under the proposed Act).  However, the local registration authority of the Australian jurisdiction may reinstate any cancelled or suspended registration or waive conditions if it thinks it appropriate.’

If anything, by emphasising the power of the local registration authority of the Australian jurisdiction to reinstate any cancelled or suspended registration or waive conditions (imposed presumably by the New Zealand registration authority), that paragraph reinforces the contention that the section contemplates that any Australian registration may be affected by cancellation, suspension or imposition of conditions by a New Zealand registration authority if that action is taken in respect of the same person’s registration in an equivalent occupation in New Zealand. 

11                  This understanding of the section is also supported by the provision in subs (3) that the section “extends to registration effected apart from this Act.”  That I take to be a stipulation that s 32 is to operate on registration in an occupation in Australia which was not obtained or procured through the “gateway” provided by s 18 of the Mutual Recognition Act but was obtained by a previously unregistered person’s having made an application to a local registration authority in an Australian jurisdiction (such as CASA).

12                  The reasoning of Kiefel J in Schulz v Medical Board of Queensland [2001] FCA 1171 (12 December 2001) also provides support for the interpretation which I take to arise from the ordinary meaning of the words used in s 32 of the Mutual Recognition Act.  In that case, Mutual Recognition Acts of the Commonwealth and each of the States of Australia were enacted in identical terms to apply to certain occupations and to provide an entitlement for a person registered in one State to be registered for an equivalent occupation in another State.  Section 3 of that complementary legislation was in terms not materially different from s 32 of the Trans-Tasman Mutual Recognition Act and provided;

‘33       Disciplinary action

(1)       If a person’s registration in an occupation in a State:

(a)        is cancelled or suspended;  or

(b)        is subject to a condition;

on disciplinary grounds, or as a result of or in anticipation of criminal, civil or disciplinary proceedings, then the person’s registration in the equivalent occupation in another State is affected in the same way.

(2)       However, the local registration authority of the other State may reinstate any cancelled or suspended registration or waive any such condition if it thinks it appropriate in the circumstances.

(3)       This section extends to registration effected apart from this Act.

(4)       This section has effect despite any other provisions of this Part.’

13                  In Schulz, the Medical Board of Western Australia had imposed a condition on the applicant’s registration as a medical practitioner in that State and, when he applied for re-registration in Queensland, the Queensland Medical Board imposed a condition in identical terms.  He then sought a review by the Administrative Appeals Tribunal (“the AAT”) of the decision of the Queensland Board.  The AAT concluded that it had no jurisdiction to entertain the application because s 33 did not provide for the making of a reviewable decision.  Her Honour dismissed an appeal from that decision of the AAT observing, at [10]-[12] and [15];

‘10       Section 33(1) MRA provides for the automatic imposition of the same condition, or other disciplinary action, where a person’s registration has been rendered subject to that condition in another State.  It does not call for any decision itself on the part of the second State.  No duty, on the part of the Queensland Medical Board, can be said to arise under it. 

11        Section 33(2) does provide the Board with power, inter alia, not to impose a condition which had been imposed by the disciplinary authority in the other State.  The Board did not exercise that power in this case and it seems clear enough that its resolution merely recorded, in a formal way, the effect that s 33(1) had had.  It could not therefore be said to have made a decision in the exercise of the powers given to it by statute, such as would give jurisdiction to the Tribunal under s 25(1) AAT Act.  It remains to consider whether the Board can be said to have failed to consider the exercise of its discretion in his favour.  The contention assumes the existence of an obligation to do so.

12        There is nothing in s 33 which, in my view, can be read as requiring the Board to consider whether or not to impose a condition in every case.  To the contrary, that would appear to cut across the intended, automatic, operation of s 33(1).  There is no duty arising from the language of the statute which it could be said the Board has refused to perform.

… …

15        There was no decision and no refusal capable of providing the AAT with jurisdiction under its Act.  The application will be dismissed.  I can see no basis for making other than the usual order for costs, one which follows the event of success or failure.’

14                  For these reasons, I have concluded that there is not presently a decision of CASA which is reviewable under the AD(JR) Act.  Such a decision may be made after the applicant has pursued the opportunity afforded by s 32(2) of the Mutual Recognition Act and the invitation in CASA’s letter of 19 May 2006 to request CASA to reinstate his cancelled Australian registration.  Alternatively, the manner in which CASA processes any request for relief of that kind may amount to reviewable conduct within the meaning of s 6 of the AD(JR) Act.  Against the possibility that either of those avenues might become available to the applicant in the future, I shall not, here and now, dismiss his substantive application.  However, it will require considerable amendment to raise the new, prospective, issues to which I have just adverted.  In the meantime, I shall refuse the motion for an interlocutory stay of the cancellation of the applicant’s Commercial Pilot (Helicopter) Licence.  The applicant must pay CASA’s costs of and incidental to that motion, including its costs of yesterday’s hearing.

Associate:

Dated:              25 May 2006