FEDERAL COURT OF AUSTRALIA

Jones v Civil Aviation Safety Authority [2011] FCA 1416

OTHER MATTERS:

Upon the undertaking of the appellant, Milton Stanley Knight Jones, through his counsel, to file and serve an application to the High Court for special leave to appeal by 16 December 2011,

THE COURT ORDERS THAT:

1.    The judgment of the Full Court dated 2 December 2011 be stayed until 15 February 2012.

2.    Order 1 of the order made by Marshall J on 21 June 2011 in VID 155 of 2011 be extended until 15 February 2012.

3.    The appellant pay the first respondent’s costs of the stay application.

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

REASONS FOR JUDGMENT

1    On 9 December 2011, I made the orders set out above, for the following reasons.

2    The appellant, Milton Stanley Knight Jones, sought a stay of the judgment of the Full Court delivered on 2 December 2011, in which it dismissed an appeal from the judgment delivered on 6 June 2011 by Marshall J, who dismissed the appellant’s challenge to the decision of a magistrate to issue, on the application of Mark Haslam, an investigator employed by the first respondent, the Civil Aviation Safety Authority (“CASA”), an offence-related warrant pursuant to s 32AF of the Civil Aviation Act 1988 (Cth) (“the Act”). As set out in the reasons for judgment of the Full Court in this matter, Jones v Civil Aviation Safety Authority [2011] FCAFC 157, the warrant was, broadly, directed at DVDs containing footage of the appellant’s participation in a television series involving a helicopter, which Mr Haslam believed may have involved contraventions of the Act.

3    The primary judge ordered a stay of his judgment until the hearing and determination of the appeal by the Full Court or further order.

4    As a result of the Full Court’s decision, the respondent can proceed to uplift the DVDs pursuant to the warrant unless a further stay is granted.

5    On 2 December 2011, following delivery of the Full Court’s judgment, senior counsel for the appellant informed the court that the appellant sought a stay until 16 December 2011 in order to allow him to file an application for special leave to appeal to the High Court. The appellant, subsequently, by interlocutory application dated 6 December 2011, sought the following orders:

1.    The judgment dated 2 December 2011 be stayed until 19 December 2011.

2.    If on or before 19 December 2011 the appellant files an application for special leave to appeal to the High Court the stay be extended until 8 February 2012 or until further order.

3.    Such further or other orders as the Court thinks fit.

6    The first respondent undertook not to uplift the material pursuant to the warrant until the hearing and determination of the present application, but opposed a stay.

7    The appellant relied on the affidavit of Edward Maitland sworn on 6 December 2011 and written submissions dated 6 December 2011.

8    The respondent relied on written submissions dated 7 December 2011.

Relevant principles

9    The Court’s discretion to grant a stay pending the hearing of an application for special leave, or for some shorter or other period, involves the exercise of an extraordinary jurisdiction.

10    As Brennan J stated in his frequently cited decision in Jennings Construction Limited v Burgundy Royale Investments Pty Ltd [No 1] (1986) 161 CLR 681 at 685 (“Jennings”), the High Court in that context must consider four questions:

(a)    whether there is a substantial prospect that special leave to appeal will be granted;

(b)    whether the appellant has failed to take whatever steps are necessary to seek a stay from the court in which the matter is pending;

(c)    whether the grant of a stay will cause loss to the respondent; and

(d)    where the balance of convenience lies.

11    In Employment Services Australia Pty Ltd v Poniatowska [2010] FCA 1043, Besanko J stated at [7]:

An assessment of the prospects of obtaining special leave to appeal involves a consideration of whether there is a matter of public importance or a miscarriage of justice as well as whether there is an arguable case of error.

12    In Commissioner of Taxation v Multiflex Pty Ltd [2011] FCA 1316, Edmonds J (at [13]) adopted Logan J’s recognition, in George v Fletcher (Trustee) (No 2) [2010] FCA 655, that the factors or considerations referred to by Brennan J in Jennings were also relevant where the intermediate appellate court was approached for a stay, save that, implicitly, in such a case, the second of the factors referred to by Brennan J would not apply.

13    Edmonds J further contemplated that the threshold requirement for a stay of a judgment of the Full Court may “be less than what it is in the High Court” (at [12]) and stated (at [8]):

The threshold in this Court would not seem to require some ‘exceptional’ or ‘special’ reason for the stay, merely a requirement on the part of an applicant for a stay pending the determination of an appeal to demonstrate ‘a reason or an appropriate case to warrant the exercise of discretion in his favour’.

(citations omitted)

PARTIES’ SUBMISSIONS

14    In the present case, the appellant, while conceding that ground 4 of the notice of appeal was not raised before the primary judge, submitted that the Full Court’s failure to determine it constituted a key basis for seeking special leave to appeal, as ground 4 raised important questions about the construction of s 32AF of the Act. The appellant submitted that, as the Full Court granted the appellant leave to file and serve an amended notice of appeal including new grounds, they were properly matters before the Full Court, which it erred in failing to determine. Alternatively, if the Full Court did not, at least in substance, grant leave to amend, its discretion miscarried in the circumstances where (contrary to its own assessment) the Full Court was “sufficiently apprised” of the issue, yet failed to determine, as a matter of public importance, a question not previously decided about legislation conferring powers on authorities which impact upon the rights of citizens. Further, George v Rockett (1990) 170 CLR 104 emphasised the necessity for strict compliance in the context of a warrant, and a potential consequence of failure to determine ground 4 was that a warrant invalid on a proper construction of the legislation would be acted upon, while the first respondent would have suffered no prejudice had the issue been determined.

15    In written submissions, the appellant also foreshadowed that it would seek special leave in relation to ground 1 of the appeal, involving the question of admissibility of an annexure to an affidavit. The Full Court proceeded on the basis that ground 1, similarly, was not raised before the primary judge, but before me, senior counsel for the appellant submitted that the question was implicitly before the primary judge, who seriously misconstrued it.

16    The first respondent contended that there was no strongly arguable legal point on appeal and special leave was unlikely to be granted, as no clear error of law and question of law of public importance were identified. The respondent emphasised the discretionary nature of the Full Court’s judgment in applying the principle recognised in authority such as Carey-Hazell v Getz Bros & Co (Aust) Pty Ltd [2006] FCAFC 48 at [53] and Commissioner, Australian Federal Police v Oke (2007) 159 FCR 441 at 444.

17    The first respondent submitted that if the Full Court erred, its failure to determine ground 4 did not entrench or perpetuate a construction requiring correction, and the question of the exercise of discretion in the peculiar circumstances of this case was not one of public importance. Counsel for the first respondent also submitted that the appellant’s articulation of its argument was so lacking in precision that the court could not be satisfied that an application for special leave would have any prospects of success.

discussion

Prospects of success in application for special leave

18    Section 35A of the Judiciary Act 1903 (Cth) provides:

35A    Criteria for granting special leave to appeal

In considering whether to grant an application for special leave to appeal to the High Court under this Act or under any other Act, the High Court may have regard to any matters that it considers relevant but shall have regard to:

(a)    whether the proceedings in which the judgment to which the application relates was pronounced involve a question of law:

(i)    that is of public importance, whether because of its general application or otherwise; or

(ii)    in respect of which a decision of the High Court, as the final appellate court, is required to resolve differences of opinion between different courts, or within the one court, as to the state of the law; and

(b)    whether the interests of the administration of justice, either generally or in the particular case, require consideration by the High Court of the judgment to which the application relates.

19    In Westpac Banking Corporation v Carver & Anor (2003) 126 FCR 113 (“Westpac”), Beaumont J recognised (at 115) that, as a matter of both form and substance, an application for special leave is different in character from the situation where an appeal lies as a right. His Honour cited (at 116) David Jackson who, in the title “Leave to Appeal” in Blackshield T, Coper M and Williams G (eds), Oxford Companion to the High Court of Australia (Oxford University Press, 2001) at p 426, stated:

Cases where special leave to appeal is granted fall into two broad categories — those in which a sufficiently important legal issue is involved, and those where there has been a significant irregularity in the way in which the matter was dealt with in the courts below ... The second category has been of particular importance in criminal cases, but is also important in ensuring that civil cases at all levels are conducted according to law ...

Applicants for special leave ordinarily need to demonstrate that the issue they seek to agitate is of sufficient importance to merit the grant of special leave; that the case is a suitable vehicle for the resolution of that issue; and that their contentions on that issue are sufficiently arguable.

A case may not give rise to an issue of sufficient importance if it involves only a question of construction of a particular contract, or of a statute of limited application, or a question that is otherwise unlikely to arise again, or if the decision sought to be appealed from is interlocutory, or if in reality only a question of fact is involved. A case may not be a ‘suitable vehicle’ if the resolution of the issue is not essential to the ultimate determination of the litigation, or is premature, or if the necessary findings of fact have not been made, or have been made against the applicant (so that an appeal would also be necessary on the factual issue). Special leave will not be granted if the decision appealed from is not sufficiently attended by doubt. Even if the reasoning of the court below may be dubious, special leave will not be granted if the result arrived at by that court is not sufficiently in doubt.

20    The difficulties of predicting how a special leave application will be determined are widely acknowledged (see, eg, Hogan v Australian Crime Commission [2009] FCA 761 at [4]) and, as recognised in Parras Holdings Pty Ltd v Commonwealth Bank of Australia [1999] FCA 644 at [10], a court required to assess the prospects of success of an appeal or an application for leave to appeal from its own decision is placed in an invidious position. As Brennan J stated in Jennings (at 685), a canvassing or assessing of argument in advance is undesirable, but is nevertheless necessary to the extent required to evaluate broadly the prospects of success.

21    While the appellant in this case gave notice of the new grounds of appeal, the first respondent’s principal answering contention was that they should not be entertained. Neither party identified a significant, relevant decision (Dunesky v Elder (1994) 54 FCR 540) raised by the presiding judge in the course of argument, which treated as valid the impugned conditions of the warrant in this case, although one apparently lesser aspect of the reasoning, when transposed to the facts of this case, may have supported the appellant. The Full Court, considering that it was unassisted by adequate argument and related materials relevant to the question, concluded that its determination would be inappropriate. At the hearing of the appeal, the appellant conceded that ground 1 was also not raised before the primary judge.

22    The appellant did not undertake to apply for special leave until the hearing before me. Senior counsel acknowledged a lack of clarity in and foreshadowed refinement of, or addition to, the proposed grounds. Unsurprisingly, therefore, some uncertainty attended the articulation of the special leave question in this case.

23    It is well established that an appellate court may determine a fresh point if satisfied that it is expedient in the interests of justice. The court may be so satisfied where the new issue is a question of construction involving no evidence or prejudice, particularly if it concerns significant legislation affecting liberty of the subject or other important values. In this case, the appellant, on one view, submitted that the Full Court’s discretion miscarried in applying established principles to particular facts, from which it is difficult to identify a clear question of special or national importance.

24    The appellant’s principal argument, however, may fall into the category of special leave application referred to in Westpac, concerning an alleged significant irregularity in the way the court below dealt with the case, said to involve a potentially unlawful invasion of the rights and liberties of a citizen.

25    In the light of the above, while the appellant has not at this stage precisely articulated the proposed grounds, I proceed on the basis that the appellant has some, but not substantial, prospects for success in an application for special leave, which may be perceived to relate to an issue involving the interests of justice in a particular case.

Whether appeal rendered nugatory

26    The first respondent submitted that if it uplifted and examined the material pursuant to the warrant, it would not render an appeal futile, as (should the appeal succeed) the material would be returned and rendered inadmissible in any prosecution. For the appellant it was submitted that he would incur prejudice that could not realistically be undone “after the horse had bolted”, that indirect use of documents obtained on a search warrant subsequently held invalid could not be excluded, and that if action on the warrant proceeded, any appeal might ultimately be seen as moot. I was persuaded that a stay was necessary to preserve the subject matter of the litigation, as there was a serious risk that, absent a stay, the value of a successful appeal may be negated. The relative time scales applicable to, on the one hand, any action taken on the basis of material examined pursuant to the warrant and a resultant prosecution, and, on the other hand, the hearing of a special leave application and any appeal, were unpredictable. Clearly, however, it may be impossible to restore the appellant to his previous position or to address the prejudice entailed should a warrant, which on a grant of leave and successful consequent appeal may be found to be invalid, be acted on, perhaps in relation to a prosecution.

Prejudice and balance of convenience

27    The primary judgment has been stayed since 6 June 2011, apparently without opposition from the first respondent.

28    Before me, however, the first respondent now submitted that it was at risk of detriment from delay occasioned by a stay, as the majority of the potential offences identified in the warrant are contraventions of the Civil Aviation Regulations 1988 (Cth), prosecution for which must be brought within three years after the commission of the offence, which would expire, in relation to the earlier footage, in August 2012. A prolonged stay could thus effectively deprive the first respondent of the fruits of its judgment.

29    The first respondent submitted:

It is noted that the filming of the footage, which was subsequently used for the television series, took place between August 2009 and August 2010: see the email correspondence between Haslam and David Grant (solicitor for WFTN) at p.17 of Haslam’s Affidavit of 20 May 2011.

In the premises [sic], CASA only has until August 2012 to complete its own investigation and to refer the matter to the Commonwealth Director of Public Prosecution for consideration of prosecution. The special leave application is unlikely to come on for hearing before mid 2012.

(footnotes omitted).

30    Before me, counsel for the first respondent also submitted that as the dates of some of the incidents captured in footage stored on the DVDs were unknown, it was possible that limitations could apply at a date earlier than August 2012.

31    Although the appellant’s prospects of success were not, in my view, substantial, and its arguments not fully developed, I considered that it had some prospects and there was a substantial risk that success in the application for special leave and any appeal would be undercut in significant respects should the first respondent proceed to act on the warrant.

32    A stay until the hearing and determination of any special leave application (or appeal) would, however, pose a risk of substantial prejudice to the first respondent, and orders in those terms (sought by the appellant in written submissions), which would potentially extend the stay to a date unknown, were clearly unjustified.

33    In all the circumstances, I considered that the balance of convenience favoured, albeit by a fine margin, a short stay to enable the appellant to make an application for special leave, as the substantive potential prejudice asserted by the first respondent would not then arise.

34    The appellant, through his counsel, undertook to file and serve an application for special leave by 16 December 2011.

35    The appellant acknowledged that he sought a concession and I accepted that, as the first respondent submitted, in circumstances where it had been required to meet unsettled arguments and material, the appellant should, in the context of a finely balanced decision, pay the first respondent’s costs of the stay application.

Associate:

Dated:    9 December 2011