Aviation Centre Pty Ltd v The Secretary, Department of Transport

[1981] FCA 258

Re: AVIATION CENTRE PTY. LIMITED
And: THE SECRETARY, DEPARTMENT OF TRANSPORT
No. G155 of 1981
Judicial Review

COURT

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Sheppard J.

CATCHWORDS

Judicial Review - Air Navigation - application for permission to land and take-off an aircraft from landing ground - whether aircraft had a maximum take-off weight in excess of 5,700 kilograms - whether decision of delegate refusing application open to review because of failure to take into account special performance characteristics of particular aircraft - Administrative Decisions Judicial Review Act 1977, ss.3, 5 - Air Navigation Act 1920, s.3A - Air Navigation Regulations 5, 51, 85, 89, 212 and 227.

HEARING

SYDNEY

#DATE 23:12:1981

JUDGE1

This is a matter in which I would have preferred to reserve for a short time to enable me to express a little more felicitously and a little more elaborately than I will, my reasons for the conclusions at which I have arrived. But the urgency of the matter and the time of the year make it imperative that I give a decision this afternoon.

I have reached a very clear conclusion as to what the outcome of the application should be. The application is for the review of a decision of the Secretary, Department of Transport, said to have been made on 14 October, 1981. The decision was given in respect of an application made by letter dated 21 July, 1981, and supplemented by a further letter of 3 September, 1981. As I understand the application, it is an application made pursuant to Regulation 85 of the Regulations made pursuant to the Air Navigation Act, 1920. There was a submission by counsel for the applicant that the application was made as well, or alternatively, under Regulation 212. I am not in agreement with that submission. It is a matter to which I shall refer a little later.

Although the application is couched as an application for judicial review made pursuant to the Administrative Decisions Judicial Review Act, 1977 ("the Judicial Review Act"), it is probably also an application for a declaration which, if made, would have obviated the need for any grant or refusal of an application pursuant to Regulation 85. If the declaration were to be granted the applicant would be lawfully entitled to operate the aircraft in question into the landing field at Kooralbyn, which has been referred to and described in the evidence.

It is convenient to deal with its application for that declaration first of all. Before I do so, I should say something about the way in which this case has proceeded. Directions were made directing the applicant and the respondent to file affidavits. Affidavits on behalf of the applicant were filed and an affidavit on behalf of the respondent was filed. It was made by a Mr. Lawry. The matter proceeded by the reading, first of all, of those affidavits. Counsel for the applicant then said that he wished to cross-examine Mr. Lawry, who is the delegate of the Secretary of the Department and who in fact made the decision in question. He cross-examined him and then said he had evidence in reply to lead. I allowed him to lead it orally because the affidavit of Mr. Lawry had only been filed a day or so before the hearing commenced. When it was led it emerged fairly soon that the evidence was not evidence in reply, but evidence in chief which ought to have been made the subject of affidavits in accordance with the Court's directions. Nevertheless, I allowed the matter to proceed in this unsatisfactory way. The evidence, called evidence in reply but in reality evidence in chief, was then replied to by further evidence on the part of the Department. I mention these matters not because in the end I feel that any available evidence was not called, but in case the transcript has to be considered by any other person. It would appear that the evidence has been led in a most unsatisfactory way because of the applicant's view that much of its evidence in chief was evidence in reply.

I should say also that to somebody untutored in the matter it might appear that there has been an attempt to review on its merits the decision which is under appeal. A great deal of evidence was led subject to the objection of counsel for the respondent. That evidence, because it was in in that conditional way, had to be answered by the Department. On reflection I think that much of the evidence should have been rejected, but I felt obliged to allow the evidence because of submissions made by counsel for the applicant that the Department had acted in such a way that no reasonable person could have reached the decision which was reached, because it was said that it had taken into account extraneous matters, and because of other considerations based on the various grounds which appear in the Judicial Review Act, upon which reliance was placed.

I return to the question of whether the applicant is entitled to the declaration which it seeks. It is necessary to refer to some provisions of the relevant legislation. The first of these is Regulation 89 of the Regulations, which relevantly provides:

"89. (1) An aircraft shall not land at, or take-off from, any place unless -

(a) the place is an aerodrome established under this Part;

(b) the use of the place as an aerodrome is authorized by a licence granted under regulation 84;

(c) the use of the place as an aerodrome is authorized by the Director-General under regulation 85 and -

(i) the aircraft is of a type of aircraft authorized under that regulation to land and take-off from the place; . . . . . . . . . . . . . . . . . . "

Regulation 85 provides:

"85. Subject to these Regulations, the Director-General may, by specific or general description, authorize the use of any place as an aerodrome for the purposes of the landing and taking-off of such types of aircraft, engaged in such classes of operations and subject to such conditions as the Director-General specifies in the instrument of authorization."

The Director-General by an instrument made pursuant to Regulation 85 made a general authorisation. It was made on 10 April, 1975. It is part of exhibit 1 and it is described as an "Instrument of Authorisation of Places as Aerodromes". The document is otherwise referred to in the evidence as AGA6, that description stemming from a publication in which it appears. Relevantly, the instrument of authorisation, to which I shall refer as AGA6, provides:

"1.3 The owner, operator or pilot in command shall, in respect of the landing or take-off of an aeroplane or a gyroplane used in any other class of operations than those specified in paragraph 1.1 or having a maximum take-off weight exceeding 5700 kg (12,500 lb) -

(a) obtain specific authorisation from the Secretary for the use of an area as an authorised landing area; or

(b) ensure that the area complies with the approved standards specified in the operator's Operations Manual as being applicable to the type of aircraft and class of operations."

Nothing in paragraph 1.1 of AGA6 is of relevance in the present proceedings.

I should say at this point that there has for many years been an arbitrary distinction drawn in the legislation dealing with the operation of aircraft between aircraft whose weight exceeds 5,700 kilograms and aircraft whose weight does not. In the provisions of AGA6 to which I have referred the weight 5,700 kilograms is equated to 12,500 pounds. In fact, 5,700 kilograms is slightly heavier than 12,500 pounds, but nothing turns on this. Twelve thousand five hundred pounds used to be the figure used in Australia, and is the figure, and has for some years been the figure, used in the United States of America as well as in other places. There is no apparent reason for the selection of 12,500 pounds rather than some other figure. It is arbitrary but it exists, and exists in legislation. Obviously there will be cases, some people will say, of hardship because some weights will be just under or just over the arbitrary limit which is fixed apparently to distinguish light aircraft from those of a heavier kind.

It is the respondent's contention that this is an aircraft the maximum take-off weight of which exceeds 5,700 kilograms. It is the applicant's contention that it is not. If the applicant is right, the aircraft is by AGA6 authorised to land at the landing field in question at Kooralbyn. If it is not, it needs a specific authorisation for that purpose.

The term "maximum take-off weight" is defined in Regulation 5 of the Regulations to mean, in relation to an aircraft, the weight set out in the certificate of airworthiness or the flight manual for the aircraft as the maximum take-off weight. It is agreed by both counsel, and I consider them in this respect to be correct, that that definition applies to the term where used in AGA6, because AGA6 is an instrument made pursuant to one of the Regulations - namely, Regulation 85.

The certificate of airworthiness for the aircraft is in evidence. It does not set out any maximum take-off weight. The flight manual for the aircraft is also in evidence. It is the respondent's contention that it does set out the maximum take-off weight. That is also the contention of the applicant, but in its submission the weight is not so simply and straightforwardly set out as the respondent would have it. A relevant part of the manual is page 2-2. It is headed "Operating Limitations", and there then appear the words:

"CERTIFICATION AND OPERATIONAL LIMITATIONS ARE CONDITIONS OF THE TYPE AND AIRWORTHINESS CERTIFICATE AND MUST BE COMPLIED WITH AT ALL TIMES AS REQUIRED BY LAW: (sic) CERTIFICATION STATUS This aeroplane is certified in accordance with FAR 25 and A.N.O. 101.6."

I interpolate to say that FAR 25 is a reference to some American regulations concerning airworthiness of aircraft, and A.N.O. 101.6 is a reference to an Air Navigation Order having legislative force under the Air Navigation Act, and picking up the provisions of the American regulation.

The relevant page of the manual goes on, under the heading "Weight Limitations", to specify certain weights. Amongst others these are maximum design take-off weight 6,032 kilograms, 13,300 pounds; maximum certified take-off weight 6,032 kilograms, 13,300 pounds; maximum take-off weight permitted by climb requirements - see figure 4-12.

In the respondent's submission the maximum take-off weight referred to in AGA6 is by definition in the Regulations either the maximum design take-off weight or the maximum certified take-off weight - it matters not. In the submission of the applicant it is really the actual weight which the aircraft will have when it takes off on any particular flight.

Later provisions of the manual to which one is directed by, amongst other things, what appears at page 4-12 show that length of runway, the necessity to clear obstacles, ambient temperatures, air pressure, and other factors may limit the weight that the aircraft may have on any particular flight. A great deal of evidence has been led about this matter; much reference has been made to the pages of the manual in which these provisions are made. Reference has also been made to the American regulation FAR 25 in relation to it, and there is other material which I have before me in respect of it as well.

Mr. Llewellyn, who is a consultant aeronautical engineer and who was called to give expert evidence on behalf of the applicant, after considering much of this material, formulated some rules which appear in exhibit M, which he said were designed to provide for the safe take-off of the aircraft from the landing area in question. These rules are:

"1. Take-off weight must not exceed 5700 Kg. under any circumstance.

2. Reduce the weight by 42 Kg. for each degree celsius above 22#C.

3. Reduce the weight by 32 Kg. for each 100ft. by which the runway pressure altitude exceeds aerodrome elevation (323 feet).

4. Restore weight by 154 Kg. for each ten knots of actual headwind component along the runway. (N.B. Actual headwind is to be taken as half the reported or estimated headwind).

5. Downwind operations are prohibited."

In short, what the applicant wishes me to do is to say that "maximum take-off weight", where used in AGA6 and in the Regulations, means the maximum take-off weight for any particular journey, taking into account the various conditions that exist. I was taken a tortuous path through A.N.O. 101.6, FAR 25 and some of the other regulations.

For a number of reasons, which I will give as shortly as I can, I have reached the clear conclusion that the Department's argument should be accepted. A matter said to militate against accepting it is the fact that one does not find on page 2-2 of the manual the expression "maximum take-off weight". One finds instead the expressions, "maximum design take-off weight" and "maximum certified take-off weight"; but I would have thought, particularly in relation to the latter, when one bears in mind what is said earlier on the page about the aeroplane having been certified, that what is really being talked about is the maximum take-off weight.

Then the definition uses the expression, "the weight set out . . . . in the flight manual for, the aircraft as the maximum take-off weight". That language would lead one to think that the draftsman intended the weight to be a specific weight plainly designated and thus clearly and readily ascertainable. The tortuous exercise in which the applicant indulged does not lead to a situation in which the weight is simply set out. That of itself militates, in my opinion, against the acceptance of the applicant's submission.

But it is when one considers Regulation 51 of the Regulations, where the expression "maximum take-off weight" is used, and also considers Regulation 227 thereof that it becomes clear, in my opinion, that the draftsman intended "maximum take-off weight" to be a fixed weight and not to be variable at all. I do not wish to go to the detail of these provisions, but if the expression had the meaning contended for by the applicant, Regulation 51 would so vary the licences which pilots would have to have as to make the operation of particular aircraft near the borderline of the weight limitations impossible. Regulation 227, particularly sub-regulations 227(1), (2) and (4) thereof, makes it clear, to my mind, that one single and specific weight was intended.

It may be, of course, that this manual is defective in not specifying any maximum take-off weight. In other words, by the insertion of the words "design" and "certified", it has not indicated, in accordance with AGA6 and the definition in the regulation, a maximum take-off weight; but if that impractical and unreal view were taken, and I myself would not take it, it would mean that there is no evidence which would establish that the maximum take-off weight of this aircraft does not exceed 5,700 kilograms. In other words, if that were the appropriate consideration, and I make it clear that I do not think it is, the case would nevertheless go against the applicant rather than the respondent.

There is, I think, later in the manual a clear indication that the weight of 6,032 kilograms was intended to be the maximum take-off weight, which is referred to in AGA6 and the definition. There is a section of the manual which is tabbed VII, "Weight and Balance Data and Aeroplane Equipment List". It deals with, amongst other things, the centre of gravity of the aircraft and what has to be done in relation to that matter when the aircraft is being loaded. It refers on a page headed, "Instruction Page for Loading System" to, amongst other things, the maximum take-off weight. On the next page is a diagram, towards the end of which appears the following, "6032 kilograms maximum take-off weight". To my mind those latter provisions put the matter beyond question.

For the reasons given, I have no hesitation in rejecting the applicant's submission that the maximum take-off weight of this aircraft is not 6,032 kilograms. There are other considerations which would lead me to the same conclusion, but the time is such that I do not stay to mention them.

I turn then to the other aspects of the subject case. I should first of all put out of the way Regulation 212. That was mentioned because of the form of refusal of the application, which the respondent's letter of 14 October, 1981, took. On p.2 of that letter, which is annexure C to an affidavit of Mr. Grant, the following appears:

"Sections 2 and 3 of AGA-6 which set out the conditions of authorisation do not apply to aircraft above 5700 Kgs. Paragraph 1.3 specifies the conditions under which operations of such aircraft may operate from authorised landing areas. It requires either a specific authorisation or compliance 'with the approved standards specified in the Operator's Operations Manual as being applicable to the type of aircraft and class of operations.' The Air Navigation Regulations do not require or give authority for approval of the Operations Manual and in fact no approval has been given to your Manual. Therefore the 'approved standards' have to be approved through some other medium."

It was submitted by counsel for the applicant that the statement that the Air Navigation Regulations do not require or give authority for approval of the operations manual was erroneous in point of law. The submission was based on Regulation 212 which provides for an operations manual. It is to be provided for the use and guidance of the operations personnel of the operator. The operator is to furnish copies of the manual to such of his personnel as he considers necessary, to the Director-General and to such other persons associated with the operator's operations as the Director-General considers necessary and directs. The Director-General considers necessary and directs. The Director-General may give a direction requiring the operator to include particular information in the operations manual or requiring him to revise or vary the information contained therein (Sub-Regulation (2A)). There is no provision that I can see which enables anyone to make an application for approval of the manual or any part thereof. Apparently there used to be such a provision, but it was repealed in 1971. It was submitted that the provisions of Sub-Regulation (2A) were such as to contemplate that there would be applications for approval. Additional reliance was placed upon paragraph 1.3(b) of AGA6 which came into force after the repeal of the regulation in 1971, and which appears to contemplate approval of a manual.

However, I am of the clear opinion that the respondent's argument in this respect is correct. There is in fact no provision in the regulation for an application for approval in relation to the manual. The form of the manual is a matter entirely for the operator, subject to such directions as he may receive either under Sub-Regulation (2A) or Sub-Regulation (2) from the Director-General, who has a copy of it, but there is no provision for any application for approval by an operator.

To the extent that paragraph 1.3(b) of AGA6 may suggest otherwise, one should disregard it because it is an instrument made pursuant to the Regulations of which both Regulation 85 and Regulation 212 form part. I therefore reject the argument that was put to me in relation to Regulation 212, but I would add that its significance escapes me, because it is clear that the applicant had the right to make, and did make, an application for approval pursuant to Regulation 85. That is how the matter was dealt with by the respondent, and it is how the applicant itself approached the matter - at least at some places in the argument - because its counsel expressly acknowledged to me that the application was an application pursuant to Regulation 85.

A number of grounds were relied upon, but the essence of the applicant's complaint can be summarised by saying that the Department applied to the application general standards which were applied in relation to all types of aircraft which had a maximum take-off weight exceeding 3,700 kilograms. It failed to have regard to the special circumstances of the case, particularly what were claimed to be the outstanding handling and other performance characteristics of the aircraft in question. It was said by counsel for the applicant that the decision-maker - that is to say, Mr. Lawry - had applied general considerations and neglected to take into account the particular circumstances of the case. It was also said that the decision was one - and I have mentioned this already - to which no reasonable man could come; and others of the grounds provided for specifically in the Judicial Review Act were also relied upon.

Mr. Lawry made an affidavit and was cross-examined. The essential parts of his affidavit show that he considered a number of documents, copies of all of which are annexed to his affidavit and marked with the letter F. The way the matter is put in Mr. Lawry's evidence, and I refer to paragraph 14 of his affidavit, is:

"In making the decision, I had available to me the following documents:"

and they are then listed.

Paragraph 16 of his affidavit reads as follows:

"In making my decision referred to I had regard to the following matters:- The applicant wanted to operate on a closed charter basis an aircraft having a maximum take off weight greater than 5,700 Kgs into an Authorised Landing Area. The general authorisation expressed in Aeronautical Information Publication part AGA-6 is applicable only to aeroplanes with a maximum take off weight not exceeding 5,700 Kgs being used in private, aerial work (except flying training) and charter operations. Note is made in Aeronautical Information Publication part AGA-6 of the fact that specific authorisation is required to be obtained for the use of an area as an authorised landing area by aeroplanes having a maximum take off weight exceeding 5700 Kgs. Departmental policy in respect of the use of authorised landing areas requires that aeroplanes with a maximum take off weight exceeding 5700 Kgs should conform as closely as possible to the standard of a licensed aerodrome suitable for operation of that individual type of aircraft. The runway width and runway strip width requirements for licensed aerodromes are specified in Aeronautical Information Publication part RAC/OPS-1-34 for aeroplanes with a maximum take off weight exceeding 5700 Kgs as 30 metres and 90 metres respectively. The runway width provided at Kooralbyn is only 15 metres and the runway strip width including two 7.5 metre fly-over areas is only 60 metres. The runway width and runway strip width deficiencies, would not necessarily have disposed of the matter, but departmental policy as referred to above would only permit specific authorisation to be granted if there were other features associated with the operation of the aircraft into Kooralbyn which would lead to equivalent safety. No such compensating factors were present. Indeed, there were difficulties associated with the proposed operation which mitigated against an equivalent safety judgment notably, there were significant infringements of the transitional surfaces and obstructions in the approach and take off areas. I note that the Kooralbyn company had stated that the magnitude of work to develop the aerodrome to a licensed standard was too large and that it was their intention to maintain the site to the Authorised Landing Area standard only. The operating limitations that would be imposed on the aircraft's performance at Kooralbyn in high ambient temperatures were considered to be matters of commercial judgment not affecting the safety of operations, provided the aircraft was operated at the appropriate weight for the temperature. The acceptance of the performance aspects of the operation was not seen as providing sufficient reason to displace the negative aspects referred to above. I saw the department's policy as assisting in the maintenance of a uniform approach to applications of this type. However, even in the absence of that policy, I would not have been prepared to grant a specific authorisation in this matter because of the limitations referred to above."

Although Mr. Lawry was cross-examined I did not form the view that his evidence, at least as to its accuracy and veracity, was under challenge. In any event, I have no hesitation in saying that I accept him as a witness of truth, and I accept as factual the material in paragraphs 14 and 16 of his affidavit to which I have referred.

Care should be taken to note that there is a distinction drawn between the way in which the two paragraphs are introduced. Paragraph 14 commences with the words:

"In making the decision, I had available to me the following documents:"

Paragraph 16 begins with the words:

"In making my decision referred to I had regard to the following matters:-"

A number of the documents that Mr. Lawry had before him were looked at in the course of the submissions, and also in the evidence. It is necessary only to refer to one of these. It is a minute of 5 August, 1981, which is folio 18 of annexure F. The minute is not Mr. Lawry's minute nor is it addressed to Mr. Lawry. Amongst other things it says:

"I agree with NSW Region that on the basis of equivalent safety the application has considerable merit - the performance figures quoted by Aviation Centre show that runway and takeoff performance are adequate at the weights quoted. The problem is more a one of standards and how consistent we are in applying those standards"

There then follow some further remarks, and the minute concludes:

"The airfield should be checked by airports (sic) to confirm that the work stated by Aviation Centre as having been carried out at Kooralbyn has been carried out satisfactorily."

There is a note at the bottom of the minute made by another officer. It is dated 13 August, 1981, and says:

"Please draft a reply for my signature rejecting the request".

The minute was to the Superintendant, Flying Operations, Queensland, from the Airways Surveyor, General Aviation, Queensland Region. Counsel for the applicant pressed upon me the view that the application had never really been the subject of consideration because of the matters which are contained in the minute. But it was not for either of the officers concerned with the minute to make the decision. It certainly was one of the documents which Mr. Lawry had available to him when he made his decision, but his evidence knows that he did not rely upon it. Instead, he relied upon the matters which are specified in paragraph 16.

I do not wish to deal with this paragraph in detail. It is enough for me to refer to the fact that amongst other things he said that there were difficulties associated with the proposed operation "which mitigated against an equivalent safety judgment notably, there were significant infringements of the transitional surfaces and obstructions in the approach and take off areas". Mr. Lawry's judgment in this respect was based upon the application of the Chicago Convention, which has been adopted in Australia (Air Navigation Act 1920, s.3A). A copy of the relevant parts are annexed to his affidavit.

I do not go to the detail of his evidence or to the detail of the provisions of the Convention, but photographs which have been tendered show that the airstrip runs at one point between two substantial elevations in the surrounding countryside, so that a cutting-like effect results. These obstructions are only about 60 metres or so from the edge of the strip. There are also hills about 800 metres from either end of the strip. His evidence satisfies me that he believed, and believed on reasonable grounds, that these presented problems for an aircraft. The matter was at large, so far as he was concerned, because the aircraft in question had a maximum take-off weight in excess of 5,700 kilograms. In my view he had ample justification for reaching the conclusion which he did.

I wish to make it clear that I have not substituted my judgment for his. My only concern is to see whether there was a reasonable basis upon which he could decide as he has. It may be that another experienced person in the field of aviation would disagree with him, but that is not the point. This appeal is not a rehearing of the application. This is not provided for by law, in other words, by the Act, which gives me jurisdiction to hear this matter. My powers are very much more restricted.

It is true that Mr. Lawry, and he was quite frank about this, assumed the performance characteristics of the aircraft. He made no special study of them. To his mind the important consideration was whether he should approve this area as a landing area for an aircraft which had a maximum take-off weight in excess of 5,700 kilograms, no matter what its performance characteristics may have been. The matter was at large. AGA6, for the reasons given, had no application to the situation whatever. As the evidence makes clear, all sorts of contingencies and problems can arise very suddenly. Emergencies may not happen often, but they do happen and they have to be guarded against, no matter how well an aircraft may perform.

In those circumstances I do not see how anyone, looking at the whole of the evidence, and particularly at what Mr. Lawry has said, could come to the conclusion that he acted at all unreasonably. I do not think he acted unreasonably in simply assuming the performance characteristics of the aircraft; particularly do I take that view as there was no specific reliance upon that matter in the application which was made for approval.

For the reasons I have given, I have reached the conclusion that this application must fail, but before I conclude there is one matter to which I should refer. As I have mentioned, Mr. Llewellyn is a consulting aeronautical engineer. He is employed with the CSIRO. He gave evidence which I regarded as helpful and instructive and he gave it honestly and in good faith. He was concerned, and he made this clear in his evidence, that the aircraft in question had performance and handling characteristics which exceeded those of many of the aircraft lawfully using the strip, lawfully using it because they were of a maximum take-off weight which did not exceed 5,700 kilograms. He said:

"I am concerned in this instance that the considerations of equivalent safety which have been made in respect of this application have been confined purely to the physical geometry of the aeroplane, and the airport and its various prepared surfaces. There are aeroplanes operating from that aerodrome now, carrying passengers. The aerodrome exists; the passengers exist. They will continue to be carried, I presume. The aeroplanes that are currently operating under quite a considerable proportion of the meteorological conditions that obtain in that area will not be capable of climbing past the obstacle on the north western end of that aerodrome in the event of engine failure on takeoff. It concerns me that this aspect of safety has not been taken into account, whether it is eligible to be taken into account, I do not know."

I asked him some questions:

"Your complaint is that this aircraft has a much better performance than most of those aircraft; it is a safer aircraft?---Yes. And it is a better aircraft to have operating on this strip than those aircraft, if you are to operate at the airport at all?---Yes. Does that summarise it?---Yes."

Although I do not consider that the considerations mentioned by Mr. Lawry have relevance for present purposes - that is to say, for the outcome of this case - they concern me. I direct the Department, whose Secretary is a party to these proceedings, to bring Mr. Llewellyn's evidence to the attention of the Minister for Transport. I should like an assurance that that will be done, if it has not already been done. If the aerodrome is unsafe for aircraft, even though they be below 5,700 kilograms in maximum take-off weight, something ought to be done about it. I express no view as to whether that problem in fact does exist. I have only Mr. Llewellyn's evidence to go on, but it is evidence that impressed me and his views are worthy of substantial consideration.

This application is dismissed. I order that the applicant pay the respondent's costs of the application.