AVTEX AIR SERVICES PTY LTD And CIVIL AVIATION SAFETY AUTHORITY

[2010] AATA 716

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2010] AATA 716

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No  2010/3553

GENERAL  ADMINISTRATIVE  DIVISION		)
Re		AVTEX AIR SERVICES PTY LTD

Applicant

And CIVIL AVIATION SAFETY AUTHORITY

Respondent

INTERLOCUTORY DECISION

Tribunal Mr Egon Fice, Senior Member

Date14 September 2010

PlaceSydney

Decision The Tribunal refuses to disqualify itself from hearing the matter as there is no reasonable apprehension of bias.

……………[sgd]…………………

Egon Fice

Senior Member

PRACTICE AND PROCEDURE – stay application – substantive hearing – disqualification – reasonable apprehension of bias – fair minded lay observer – fictional observer – merit – findings of fact – selective statements – safety culture – flexibility of the Tribunal – rule against bias – prejudgement - expertise of Tribunal Members

Administrative Appeals Tribunal Act 1975 (Cth) s 33(1)(c), s 41(2)

Civil Aviation Act 1988 (Cth) s 30DC, s 30DB

Bushell v Repatriation Commission (1992) 175 CLR 408

Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60

Dye v Commonwealth Securities Ltd (No 4) [2010] FCA 910

Ebner v The Official Trustee in Bankruptcy (2000) 205 CLR 337

Grant v Repatriation Commission (1999) 57 ALD 1

Johnson v Johnson (2000) 201 CLR 488

Livesey v New South Wales Bar Association (1983) 151 CLR 288

Luck v University of Southern Queensland (2009) 176 FCR 268

Minister for Immigration v Jia Legeng (2001) 205 CLR 507

Re Dart and Director-General of Social Services (1982) 4 ALD 553

Re J.R.L.: ex parte C.J.L. (1986) 161 CLR 342

Re Media, Entertainment & Arts Alliance; Ex parte Hoyts Corporation Pty Ltd (1994) 119 ALR 206

Webb v The Queen (1994) 181 CLR 41

Professor Dennis Pearce, 'Administrative Appeals Tribunal', 2^nd Edn

REASONS FOR DECISION

20 September 2010   Mr Egon Fice, Senior Member

1.      

On 20 August 2010 the Civil Aviation Safety Authority (CASA) cancelled the air operators certificate (AOC) held by Avtex Air Services Pty Ltd (Avtex).  Avtex immediately lodged an application with the Administrative Appeals Tribunal for review of CASA’s decision.  On that day, Avtex also lodged an application under

s 41(2) of the Administrative Appeals Tribunal Act 1975 (the AAT Act) seeking a stay of CASA's decision to cancel its AOC.

2.      I heard Avtex's application for a stay on 27 August 2010.  After hearing oral submissions from both parties, I delivered an ex tempore decision refusing Avtex's application for a stay.  I declined to make a stay order on the ground that the risk to the safety of air navigation was unacceptable.  I also established a timetable for an urgent hearing of this matter so as to minimise the financial effect that my decision would undoubtedly have on Avtex.

3.      On 2 September 2010 Norton White, Avtex’s solicitors, wrote to the Tribunal enquiring about whether the Tribunal had a policy of not including the member, who has heard a stay application, in the composition of the Tribunal which is to hear the substantive application.  In the absence of such a policy, Norton White requested the right to make submissions on the issue.  I set the matter down for a telephone conference on 9 September 2010. 

4.      The Tribunal was provided with copies of correspondence between Norton White and Mr J Rule, Acting Manager of CASA’s legal branch.  That correspondence deals with discussions between the applicant and the respondent about whether the Tribunal has a rule of practice or procedure, or a policy, regarding members who hear interlocutory proceedings and the constitution of the Tribunal on the substantive application.  In an email from Mr Rule sent to Norton White on 8 September 2010 at 5.06 pm, Mr Rule stated that CASA did not know the basis upon which the application was to be made on the following day.  At 5.34 pm on 8 September 2010, Avtex's solicitors sent to the Tribunal and to Mr Rule a copy of the applicant's submissions for what was set down as a telephone conference on the following day.  It was only at that time that it became clear to me, and I presume Mr Rule, that Avtex's application was one that I should disqualify myself on the basis that there were grounds for a reasonable apprehension of bias if I were the Tribunal constituted to hear the substantive application.

5.      In the course of the telephone conference which was held on 9 September 2010, Mr I Harvey of counsel, who appeared for CASA, submitted that CASA was not in a position to deal with Avtex's application for the reason that while it had received Avtex's submissions, it did not have any evidentiary material in support of the application.  Therefore, according to Mr Harvey, CASA was not in a position to properly deal with the application.  Although Mr Harvey had been provided with a copy of Avtex's submissions, CASA did not have a copy of the transcript of the hearing of the stay application which formed the evidentiary basis for Avtex's application.  For that reason, I adjourned the hearing of Avtex's application to 13 September 2010, that being the first available date suitable to the representatives of both parties.

6.      I heard Avtex's application that I disqualify myself from hearing the substantive matter late in the afternoon of 13 September 2010.  After considering the parties submissions overnight, on 14 September 2010 I delivered my decision in which I refused to disqualify myself from hearing the matter because there was, in my opinion, no reasonable apprehension of bias.  These are the reasons for arriving at that decision.

APPREHENSION OF BIAS PRINCIPLES

7.      Deane J in Webb v The Queen (1994) 181 CLR 41 explained that the doctrine of disqualification by reason of appearance of bias encompassed at least four distinct, although sometimes overlapping, main categories of case. His Honour said, at 74:

The first is disqualification by interest, that is to say, cases where some direct or indirect interest in the proceedings, whether pecuniary or otherwise, gives rise to a reasonable apprehension of prejudice, partiality or prejudgment. The second is disqualification by conduct, including published statements. That category consists of cases in which conduct, either in the course of, or outside, the proceedings, gives rise to such an apprehension of bias. The third category is disqualification by association. It will often overlap the first (28)  and consists of cases where the apprehension of prejudgment or other bias results from some direct or indirect relationship, experience or contact with a person or persons interested in, or otherwise involved in, the proceedings. The fourth is disqualification by extraneous information. It will commonly overlap the third (29) and consists of cases where knowledge of some prejudicial but inadmissible fact or circumstance gives rise to the apprehension of bias.

8.      Avtex contended that the matters which give rise to an apprehension of bias in this case concerned my conduct in the course of hearing its application for a stay of CASA's decision to cancel its AOC.  Mr T W Quinn of counsel, who appeared for Avtex, submitted that:

[I] may have difficulty in bringing an impartial mind to resolution of the substantive application by reason of the fact that, of necessity, a view has already been formed as to the issues on a preliminary basis which will again rise for final determination upon evidence which is anticipated to substantially overlap the evidence already considered.

9.      It seems reasonably clear that Avtex's concern rests with the second category of case described by Deane J in Webb's case.  There was no suggestion of overlap with any other categories of case.

10.     The nature of the apprehension of bias principle has been comprehensively dealt with on many occasions by the High Court of Australia.  However, and this is important, the basic principles have not remained static over time.  A detailed exposition of the evolution of the criteria which have been applied to apprehension of bias claims is set out in the judgment of Kirby J in Johnson v Johnson (2000) 201 CLR 488 at 498‑509. It is also important to appreciate that most of the cases which have examined the apprehension of bias principle have done so in the context of proceedings before courts, rather than administrative bodies, such as the Administrative Appeals Tribunal. There is a significant distinction between these bodies and I have more to say about that below.

11.     The basic principle was explained by Kirby J in Johnson’s case at 502, where he said:

The ultimate foundation of the principle of the common law rests, relevantly, on the presupposition that a court deciding a matter between parties will be independent and impartial. The fundamental requirements of independence and impartiality do not imply that adjudicators must be absolutely neutral, in the sense of having "no sympathies or opinions" [72].  But they do require that adjudicators "strive to ensure that no word or action during the course of the trial or in delivering judgment" [73] leaves an impression of prejudgment of a point in issue.

12.     The apprehension of bias principle, in the context of modern litigation, was dealt with comprehensively by the High Court in Ebner v The Official Trustee in Bankruptcy (2000) 205 CLR 337. In that case, the Court (Gleeson CJ, McHugh, Gummow and Hayne JJ) said, at 344‑345:

[6] Where, in the absence of any suggestion of actual bias, a question arises as to the independence or impartiality of a judge (or other judicial officer or juror), as here, the governing principle is that, subject to qualifications relating to waiver (which is not presently relevant) or necessity (which may be relevant to the second appeal), a judge is disqualified if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide [41] . That principle gives effect to the requirement that justice should both be done and be seen to be done [42] , a requirement which reflects the fundamental importance of the principle that the Tribunal be independent and impartial. It is convenient to refer to it as the apprehension of bias principle.

13.     Their Honours explained, at 345, that the apprehension of bias principle is an important principle because even the appearance of a departure from it is prohibited lest the integrity of the judicial system be undermined.  They said:

… The question is one of possibility (real and not remote), not probability. …

They then explained the two steps to be taken in its application.  They said:

[8] …  First, it requires the identification of what it is said might lead a judge (or juror) to decide a case other than on its legal and factual merits. The second step is no less important. There must be an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits. The bare assertion that a judge (or juror) has an "interest" in litigation, or an interest in a party to it, will be of no assistance until the nature of the interest, and the asserted connection with the possibility of departure from impartial decision making, is articulated. Only then can the reasonableness of the asserted apprehension of bias be assessed.

14.     Kirby J in Johnson's case also considered in detail the concept of the fair-minded lay observer or, as that person is sometimes described, the fictitious bystander.  His Honour described that changes which have come about in the administration of justice, including the increase in the number of trials by single judges, have required, to some extent, an adjustment to the rules of reticence in judicial observations that may still be appropriate where trials are conducted before a jury.  His Honour said, at 505:

Yet it is in that context that the expressions of preliminary and tentative views may sometimes appear to an outsider to indicate prejudgment. Although some adjudicators may be hard to shift from tentative opinions, lawyers know that, in most judicial decision-making, the process is a continuous one. Preliminary inclinations do change [95] .

4. The adversary system depends on vigorous interaction not only between the parties and their representatives but also between the adjudicator and those persons. Where the parties are represented by trained lawyers, the latter can be taken to be aware of (and presumed, if necessary, to have explained to their clients) the character and purpose of tentative opinions that guide the direction of the trial and encourage its proper focus.  No rule of law should be adopted in relation to disqualification for prejudgment which unreasonably undermines, or is fundamentally inconsistent with, that system.

15.     The plurality in Johnson's case also explained that the fictional observer, by reference to whom the test is formulated, is not to be assumed to have a detailed knowledge of the law, or the character or ability of a particular judge.  The reasonableness of any suggested apprehension of bias is to be considered in the context of ordinary judicial practice.  They said, at 493:

[13] . . . The rules and conventions governing such practice are not frozen in time. They develop to take account of the exigencies of modern litigation. At the trial level, modern judges, responding to a need for more active case management, intervene in the conduct of cases to an extent that may surprise a person who came to court expecting a judge to remain, until the moment of pronouncement of judgment, as inscrutable as the Sphinx.

Their Honours went on to explain that dialogue between the bench and bar is helpful in the identification of real issues in a particular case.  They said: 

. . . Judges, at trial or appellate level, who, in exchanges with counsel, express tentative views which reflect a certain tendency of mind, are not on that account alone to be taken to indicate prejudgment. Judges are not expected to wait until the end of a case before they start thinking about the issues, or to sit mute while evidence is advanced and arguments are presented. On the contrary, they will often form tentative opinions on matters in issue, and counsel are usually assisted by hearing those opinions, and being given an opportunity to deal with them.

16.     Kirby J, at 508, also referred to the attributes of the fictitious bystander which have been variously stated by courts.  He went on to say, at 508‑509: 

Acting reasonably, the fictitious bystander would not reach a hasty conclusion based on the appearance evoked by an isolated episode of temper or remarks to the parties or their representatives, which was taken out of context [123] . Finally, a reasonable member of the public is neither complacent nor unduly sensitive or suspicious [124] .

17.     Mason J (as he then was) in Re J.R.L.: ex parte C.J.L. (1986) 161 CLR 342 at 352, added this overriding caution:

Although it is important that justice must be seen to be done, it is equally important that judicial officers discharge their duty to sit and do not, by acceding too readily to suggestions of appearance of bias, encourage parties to believe that by seeking the disqualification of a judge, they will have their case tried by someone thought to be more likely to decide the case in their favour.

THE GROUNDS STATED BY AVTEX

18.     The grounds stated by Avtex for seeking my disqualification from hearing this matter can be stated as:

(a)an unflattering assessment of the merits of Avtex's claim;

(b)alleged findings regarding poor safety culture in respect of flying operations;

(c)the possibility of me preferring my own experience in aviation when forming a final view;

(d)the alleged questioning of the credibility of a witness; and

(e)statements I made about the Canley Vale accident.

19.     On commencing my ex tempore decision, I explained to the parties that there were four factors which I saw were relevant in the context of aviation matters when considering a stay application brought under s 41(2) of the AAT Act. They included:

(a)prospects of success or the merits of the applicant's case;

(b)whether the parties or anyone else would be prejudiced if a stay were not granted;

(c)whether public safety is likely to be imperilled if a stay is granted; and

(d)whether, if the applicant's application on review was successful, it would be rendered nugatory or pointless if a stay were not granted.

20.     It appears that the grounds articulated by Avtex for seeking disqualification relate only to (a) and (c) above.

comments on the merits

21.     As I understood Mr Quinn's submissions on this point, I should have approached this question on the assumption that Avtex had a reasonably arguable case.  With respect, I do not understand that to be the correct approach.  As Davies J said in Re Dart and Director-General of Social Services (1982) 4 ALD 553 at 555, when dealing with a stay application:

It is not convenient or appropriate that on this application for a stay there should be any preliminary trial of the issues that will ultimately have to be considered by the Tribunal. For the present, it is sufficient that, if the facts which are put to me are established at the hearing, the applicant will succeed in the review.

I take into account the circumstances that other facts have been considered by the Director–General or his delegate and that a contrary view has been formed. However, in the present case, the applicant did not have the opportunity of appearing herself before the Social Security Appeals Tribunal and therefore I am not considering a case where an applicant has had a full hearing.

22.     The circumstances outlined in Dart's case by Davies J are typical of the matters which come to this Tribunal for review.  Often, the primary decision-maker's decision has already been subjected to a merits review on one or more occasions.  Therefore, unlike a court, which usually will only have before it pleadings without any prior determination of the merits of the claim, this Tribunal will always have before it a pre-existing decision which is against the applicant.  While it is not this Tribunal's task to review the reasons given by other decision-makers in a matter, the Tribunal will have before it evidence and findings of fact which have previously been made.  While the Tribunal is not bound by prior findings of fact, they necessarily form part of the material upon which a stay application will be determined.

23. Although I have not been able to locate any cases precisely on this point, there are analogous cases which have been heard by the Federal Court in respect of summary dismissal under s 31A of the Federal Court of Australia Act 1976. The test in s31A requires the establishment of reasonable prospects of success to avoid summary dismissal. Cases dealing with this section necessarily involve an onus of proof on the party moving for summary dismissal. In that respect, they are distinguishable. Nevertheless, as Justice Rares said in Luck v University of Southern Queensland (2009) 176 FCR 268 at 295, in arriving at the requisite state of satisfaction, the Court exercises a judicial assessment. It makes an evaluation of the material before it, both of fact and law. The assessment made is often in the nature of a predictive judgment as to the outcome of proceedings. There was no suggestion that the Court should have approached the application with any assumed position.

24.     In my opinion, the Tribunal's task is not to conduct a mini trial. It needs to examine the factual material before it and the relevant law, and arrive at a conclusion that the applicant could succeed if the stated facts were proved to the relevant level of satisfaction. Put in the context of a stay application before this Tribunal, provided that the claim by an applicant is not unmeritorious, then the stay provisions under s 41(2) of the AAT Act are enlivened. If the claim is unmeritorious, they are not. That is because s 41(2) of the AAT Act requires the Tribunal to form the opinion that it is desirable to grant a stay. Section 41(2) provides:

(2) The Tribunal may, on request being made, as prescribed, by a party to a proceeding before the Tribunal (in this section referred to as the relevant proceeding), if the Tribunal is of the opinion that it is desirable to do so after taking into account the interests of any persons who may be affected by the review, make such order or orders staying or otherwise affecting the operation or implementation of the decision to which the relevant proceeding relates or a part of that decision as the Tribunal considers appropriate for the purpose of securing the effectiveness of the hearing and determination of the application for review.

25.     In its written submissions, Avtex simply quoted the first sentence of my oral decision regarding the prospects of success.  There, I said:

With respect to the first one on the merits or prospects of success, I cannot say that the applicant does not have some prospects of success.

26.     The first point to make is that the statement appears in the context of a larger statement which continues as follows:

I mean, there is a lot of evidence and a lot of it is contradictory, and therefore, the applicant clearly may be able to establish some, if not all, of the arguments which it puts; and therefore, it cannot be said that this is an unmeritorious action brought by Avtex.  It will depend, obviously, as I've said, on the evidence and the witnesses, and undoubtedly, on the cross examination of witnesses, given that there is some contradictory evidence.

27.     In other words, I was satisfied that Avtex had an arguable case.

28.     The selective nature of the statements I made in the course of the stay hearing which are relied upon by Avtex for this disqualification application all exhibit the same problem.  In respect of the use of selective quotes, I refer to the decision of Katzmann J in Dye v Commonwealth Securities Ltd (No 4) [2010] FCA 910. At [94] Her Honour said:

The hypothetical observer would be expected, at least, to have read the whole of the judgment. A reasonable fair-minded observer would not cherry-pick statements and consider them in isolation; rather, s/he would have regard to the context in which they were made and the issues to which they related, for to do otherwise would be neither fair nor reasonable. As the majority observed in Johnson at [14], “the hypothetical observer is no more entitled to make snap judgments than the person under observation”.

29.     Having regard to my full statement regarding the merits of Avtex's claim, and the fact that I cannot find any basis for the submission that I should commence the evaluation of the prospects of success on the basis that an applicant has a reasonably arguable case, I am not persuaded that the way in which I expressed my impression about the merits of the case might lead an independent lay person sitting in the hearing room to form an apprehension that I had prejudged the matter.  I merely indicated that Avtex passed the threshold test to enliven the stay provisions set out in s 41(2) of the AAT Act.

safety culture within avtex

30.     This topic deals with considerations regarding the safety of air navigation, which is undisputedly the paramount consideration in cases such as this.  Again, Avtex has quoted selectively from my oral decision without reference to other matters which led to me making the statements quoted. 

31. In particular, where I stated that the material before me disclosed a series of operational problems, I made that statement after referring to the decision of Moore J of the Federal Court, who made an Order under s 30DC of the Civil Aviation Act 1988 (the Act) suspending Avtex's AOC on the ground that Avtex had engaged in, is engaging in, or is likely to engage in, conduct which contravenes s 30DB of the Act.  Section 30DB provides that the holder of a civil aviation authorisation must not engage in conduct that constitutes, contributes to or results in serious and imminent risk to air safety.  As a consequence of that Order, I expressed the view that the issue of safety caused me concern and that the material before me disclosed a series of operational problems, although it was difficult to pin down what the root cause of the problem was.

32.     Mr Quinn then quoted a statement I made subsequent to the statement referred to above to the effect that the operational problems which the evidence disclosed seemed to emanate from a culture, and I then set out the reasons for forming that impression.  There was ample evidence put before me and discussed in the course of the hearing about pilots operating Avtex's aircraft who, although endorsed on aircraft types and holding command ratings, when subsequently tested were found to require remedial work in order to pass the required tests at an acceptable level.  I then flagged, for the benefit of Avtex, the concerns which I held at that time regarding the apparent degradation of pilot skills in the course of their operations with Avtex.

33.     In his submissions, Mr Quinn referred to three incidents which were of concern to CASA, namely a fatal accident involving a Metro aircraft in 2008, the wheels up landing and then the fatal accident at Canley Vale in 2010.  When referring to the wheels up landing, Mr Quinn said that was a matter for the individual pilot rather than being indicative of an operational problem.  At that point, I made the observation that there were a series of events preceding the wheels up landing which might indicate something about the culture of the training, checking and supervision of pilots.  There was also discussion about the fact that the pilot, who performed the wheels up landing, was subsequently checked and repeated comments were made about his failure to use the cockpit checklist when performing pre-landing checks.  My concern, then expressed, was that nothing had been done from a safety perspective to ensure that such events did not recur.  There was also evidence about poor standards of a chief pilot and the fact he failed a check flight.  The chief pilot was then asked to complete a flight test in a simulator, which he also failed.  This apparently occurred after a safety management system was put in place in 2008 following the fatal Metro accident.

34.     CASA also alleged that a culture existed within Avtex whereby pilots were encouraged not to record maintenance defects occurring on aircraft and on the aircraft's maintenance release.  Avtex denied those allegations and there were statements from pilots and key employees supporting that denial.  There was also a statement from a Mr Siewert, who together with his wife, are the directors of Avtex.  Mr Harvey referred to evidence which caused CASA concern about maintenance and the failure to record defects.  There was also evidence of pilots being encouraged to fly in icing conditions when the anti-icing equipment on aircraft was unserviceable.  These allegations of course were strongly denied by Avtex and in particular Mr Siewert. 

35.     Nevertheless, Mr Quinn submitted that as the Chief Executive Officer of the company, Mr Siewert was not involved in day to day matters.  I then explained to Mr Quinn that as I understood the case against Avtex, CASA alleged that the unsafe culture stemmed from the top of the organisation, probably emanating from Mr Siewert.  That had nothing to do with the day to day operations necessarily. 

36.     Mr Quinn then pointed to Mr Siewert's Affidavit where he rejected any suggestion that he would be involved in conduct to deter pilots from entering defects on the maintenance release.  I then made the statement that from my own experience, I had observed conduct of this nature.  I also expressed the view that I would be surprised that if anybody else involved in the aviation industry had not.  I did explain that it was possible that I could be surprised. 

37.     According to Mr Quinn, those observations and that statement give rise to an apprehension that I am unlikely to give due weight to the direct evidence refuting allegations made against Avtex and might, instead, prefer my own experience in forming a final view.  With the greatest respect to Mr Quinn, his conclusion is purely speculative.  Putting aside the issue of referring to my own experience in the aviation industry for the moment, Mr Quinn responded to my comment by stating that we should look at some of the instances where the maintenance release was endorsed and see whether they show the resolute adherence to the letter of the law.  I expressed agreement with that.  However, I also indicated that that was something which could not be canvassed on a stay application.  I then said:

It is just to say that, you know, I have never told pilots within Skymaster to avoid recording defects etc.  Well, that might well be true, but there are other ways in which these things are done.  It wouldn't be unusual to have occurred on at least one or more occasions.

I said that whether that constituted a systemic problem, was a different issue altogether.  I then said:

Yes, its not possible within the confines of this type of hearing to determine anything like that.

And:

I wouldn't even suggest that you could.

38.     Also, in response to Mr Harvey’s submissions about safety culture and placing pressure on pilots, I said: 

It’s very difficult, then, in circumstances of a stay application, though, Mr Harvey, because without going into the detail and entering upon cross-examination we’re guessing, to some extent, about that evidence.

39.     Mr Quinn also submitted that my expression of scepticism regarding Mr Siewert's statement might create an apprehension that I questioned Mr Siewert’s credibility in asserting that he had never encouraged pilots not to record defects on the maintenance release of an aircraft.  Again, that statement disregards what I subsequently said about Mr Siewert's statement possibly being true.  All I was pointing out to Mr Quinn was that the statement made by Mr Siewert in his Affidavit did not, by itself, constitute evidence that the recording of defects was always carried out in accordance with the Civil Aviation Regulations.  Mr Siewert's statement is, in effect, a self serving statement and it needs to be supported by objective evidence at the hearing of this matter.  Also, the evidence would need to canvass a broader range of ways in which the recording of maintenance defects might be accomplished.  The statement could not, taken in context with what was said at the hearing, give rise to an apprehension of bias.

40.     In another example, Mr Quinn, quoting from the transcript out of context, referred to my observation that the pilots working for Avtex appear to suffer a degradation of skills.  I said:

There is a culture which stems from the top.  I suspect that's Mr Siewert.

The context in which this quote arose is where Mr Quinn stated that as the CEO of Avtex, Mr Siewert was not involved in the day to day matters.  The comment which I made to that observation was that it was quite a different thing to say that one is not involved in day to day matters, and to say that one is not involved in the direction or control of the way in which operations are conducted.  I then said:

That's quite a different thing.  I think that's what's being put, as I understand it against you, is this notion that there is a culture which stems from the top.  I suspect that's Mr Siewert.  It's this culture which develops as a consequence of that, and its got nothing to do with the day to day operations necessarily.

When the quote is taken in context, it should be readily apparent that all I was stating was what I understood CASA to be putting as its case in relation to the unsafe culture within the organisation.  It was not my view at all.

41.     At the end of the day, as far as the safety of air navigation issue is concerned, as I pointed out in my oral reasons, I relied on what Mr Michael David Quinn (no relation to counsel for Avtex) said in his Affidavit of 26 August 2010.  Mr Michael Quinn is an aviation safety consultant.  He gave evidence on behalf of Avtex.  Mr Michael Quinn relied on material from Professor Patrick Hudson of Leiden University, a world renowned expert on safety culture.  He described five levels of safety culture which included pathological, reactive, calculative, proactive and generative.  Mr Michael Quinn said that based on his analysis, he would categorise the safety culture currently within Avtex as at the reactive to calculative stage.  He described the reactive level as:

Organisations at the reactive level, captured as "safety is important, we do lots of it after every accident", view safety as important but respond only after significant harm has occurred.

He described the calculative stage as:

"We have systems in place to manage all hazards", organisations tend to be fixated on rules, positions and departmental territory.  After a safety incident has occurred, information may be ignored by this type of organisation and failures explained away or resolved with no deeper enquiry into them.

42.     It was that evidence provided by Mr Michael Quinn which strongly supported my decision on safety grounds.  As I said in my oral reasons for decision, I thought what he said hit the nail on the head.

reference to own experience

43.     Mr Quinn submitted that there were some exchanges in the course of the hearing where I indicated a propensity to substitute, by reference to my own experience out of court, an argument against Avtex, not raised by the respondent, in response to evidence from Avtex which answered the case in fact raised by CASA.  Mr Quinn referred to a statement made by the High Court in Re Media, Entertainment & Arts Alliance; Ex parte Hoyts Corporation Pty Ltd (1994) 119 ALR 206 (Media case) where the Court said, at 210:

. . . that the decision should be made on the basis of the evidence and the argument in the case, and not on the basis of information or knowledge which is independently acquired.

44.     With respect, the quote relied on by Mr Quinn is, unfortunately, also taken out of context.  What happened in the Media case was that a Commissioner of the Australian Industrial Relations Commission failed to disclose that he had certified an agreement between parties regarding the conditions of employment and rates of pay involved in a dispute.  Therefore, so it was put against him, it was inappropriate for him to continue as a member of the Full Bench hearing that matter.  The Commissioner announced that he would not disqualify himself.  The applicants complained that the signed agreement was relevant to the issues in the proceedings before the Full Bench and contended that the failure of the Commissioner to disclose his knowledge of the agreement was analogous with the situation where a judge hears evidence or receives representation from one side behind the back of another.  It was in this context that the High Court (Mason CJ, Brennan, Deane, Dawson and Gaudron JJ) referred to the aspect of the rule against bias.  However, the Court then went on to say, at 210:

As a general rule, a judge or a member of a tribunal that is bound to act judicially should disclose his or her independent knowledge of factual matters that bear or may bear on the decision to be made [See, for example, R v Industrial Appeals Court;; Ex parte Maher [1978] VR 126, at 143]. In some cases, it may be that he or she should stand down from the proceedings [ibid, at 144]. However, precisely what should be disclosed and what, if any, other action should be taken may involve a consideration of the nature of the tribunal, its composition and organisation. [See, with respect to the Commission, Re Polites;Ex parte Hoyts Corp Pty Ltd (1991) 173 CLR, at 86–8. See also Labour Relations Board of Saskatchewan v John East Iron Works Ltd [1949] AC 134, at 151].

45.     It is trite to say that this Tribunal is an administrative body and not a court.  However, it seems to me that this distinction has not affected the way in which Avtex considers the Tribunal should conduct its processes.  While no doubt the Tribunal is entitled to be guided by the issues that the parties choose to put before it for its consideration, that is far from the entirety of its role.  There is no dispute about the fact that the Tribunal is required to act judicially.  There is also no dispute about the fact that the Tribunal has adopted the curial model for the purpose of conducting its hearings.  However, its rules and processes are designed to grant the Tribunal far more flexibility than that enjoyed by the Courts. 

46. For example, it is not bound by the rules of evidence and it may inform itself on any matter in such manner as it thinks appropriate (s 33(1)(c)) of the AAT Act. It is required to come to the correct, or where more than one decision is possible, the preferable decision in the matter. As the Full Court of the Federal Court (Bowen CJ, Smithers and Deane JJ) said in Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60 (Drake's case) at 68:

The function of the Tribunal is, as we have said, an administrative one. It is to review the administrative decision that is under attack before it. In that review, the Tribunal is not restricted to consideration of the questions which are relevant to a judicial determination of whether a discretionary power allowed by statute has been validly exercised. Except in a case where only one decision can lawfully be made, it is not ordinarily part of the function of a court either to determine what decision should be made in the exercise of an administrative discretion in a given case or, where a decision has been lawfully made in pursuance of a permissible policy, to adjudicate upon the merits of the decision or the propriety of the policy. That is primarily an administrative rather than a judicial function. It is the function which has been entrusted to the Tribunal.

The question for the determination of the Tribunal is not whether the decision which the decision-maker made was the correct or preferable one on the material before him. The question for the determination of the Tribunal is whether that decision was the correct or preferable one on the material before the Tribunal.

47.     As to the nature of a review before the Tribunal, the High Court in Bushell v Repatriation Commission (1992) 175 CLR 408 at 424-425:

. . . Proceedings before the AAT may sometimes appear to be adversarial when the Commission chooses to appear to defend its decision or to test a claimant's case but in substance the review is inquisitorial. Each of the Commission, the Board and the AAT is an administrative decision-maker, under a duty to arrive at the correct or preferable decision in the case before it according to the material before it.

48.     As to the inquisitorial function of the Tribunal, the Full Court of the Federal Court said this in Grant v Repatriation Commission (1999) 57 ALD 1 at 6:

[18] An inquisitorial review conducted by the AAT, as with the Refugee Review Tribunal, is one in which the tribunal is required to determine the substantive issues raised by the material and evidence advanced before it and, in doing so, it is obliged not to limit its determination to the “case” articulated by an applicant if the evidence and material which it accepts, or does not reject, raises a case on a basis not articulated by the applicant: see Sellamuthu v Minister for Immigration and Multicultural Affairs [1999] FCA 247 at [23] and Satheeskumar v Minister for Immigration and Multicultural Affairs [1999] FCA 1285 at [15].

The Court held that the Tribunal committed an error of law by not addressing an issue which was open to it on the evidence despite the fact that it did not form part of either party’s case.

49.     The distinction between the operation of courts and tribunals when addressing the possibility of apprehension of bias was addressed by Hayne J in Minister for Immigration v Jia Legeng (2001) 205 CLR 507, where he said, at 562-563:

Importantly, the rules about judicial prejudgment recognise that, subject to questions of judicial notice, judges, unlike administrators, must act only on the evidence adduced by the parties and must not act upon information acquired otherwise…

Decisions outside the courts are not attended by these features. Reference need only be made to a body like the Refugee Review Tribunal established under Pt 7, Div 9 of the Migration Act 1958 (Cth) to show that this is so. The procedures for decision-making by that body are much less formal than those of a court [152] . There is no provision for any contradictor and the procedures are, therefore, not adversarial…

The decision-maker, in a body like the Refugee Review Tribunal, will bring to the task of deciding an individual's application a great deal of information and ideas which have been accumulated or formed in the course of deciding other applications. A body like the Refugee Review Tribunal, unlike a court, is expected to build up "expertise" in matters such as country information. Often information of that kind is critical in deciding the fate of an individual's application, but it is not suggested that to take it into account amounts to a want of procedural fairness by reason of prejudgment.

[181] The analogy with curial processes becomes even less apposite as the nature of the decision-making process, and the identity of the decision-maker, diverges further from the judicial paradigm. It is trite to say that the content of the rules of procedural fairness must be "appropriate and adapted to the circumstances of the particular case" [154] .

50.     There are a number of cases which have dealt with the use members of a Tribunal may make of their own expertise.  For example, in R v Milk Board; Ex parte Tomkins [1944] VLR 187, Lowe J said at 197:

Where an arbitrator is chosen for his special knowledge, for example, where a medical question comes before a medical man, or an engineering question before an engineer, such an arbitrator is not bound to accept evidence, even if uncontradicted, which his experience makes him think incredible.  In such cases a special knowledge of the tribunal cannot be separated from it and is part of the equipment of the tribunal.

51.     Professor Dennis Pearce in his text, Administrative Appeals Tribunal (2^nd Edn) at paragraph 7.36, sets out a number of circumstances and cases in which Tribunal members have relied on their own expertise.  The only qualification Professor Pearce acknowledges is that where a Tribunal proposes to reach a conclusion based on the knowledge of the members of a particular fact or in reliance on particular expertise, it is necessary for the AAT to indicate this to the parties so that no question of a breach of the rules of natural justice arise.

52. In hearing this matter on the application for a stay under s 41(2) of the AAT Act, as the Transcript of that hearing discloses, I clearly stated the fact that I had some 20 years experience in the aviation industry. I also made it clear that the statements which I made about the various matters, relying on my own expertise, were matters which would need to be addressed at the substantive hearing. None of those statements were, or were intended to be, conclusions drawn from the evidentiary material. In fact I made that clear when I said:

But as I've said, this is a superficial look at the evidence.

Also, when Mr Quinn suggested in the course of his submissions that in the end it will depend upon direct evidence as to why certain events have taken place, I agreed that would be the case.  I also stated that it was not possible within the confines of the stay application hearing to make any determination or findings on the evidence.

the canley vale accident

53.     The Canley Vale accident resulted in the death of the pilot and one passenger.  While the full investigation into that accident by the Australian Transport Safety Bureau (ATSB) is not concluded, I had before me the ATSB preliminary report.  That report included a map which traced the path of the aircraft from its departure at Bankstown Aerodrome to the point where an engine failure appears to have occurred, and then the aircraft’s track and altitude in its attempt to return to Bankstown Aerodrome, which was unsuccessful. 

54.     The report also revealed the radio transmissions between the pilot and air traffic control (ATC) throughout the course of that flight.  I expressed my very deep concerns about the conversations between the pilot and air traffic control. 

55.     What particularly concerned me was the fact that after the engine problem, the aircraft made a left hand turn to return to Bankstown Aerodrome.  In doing so, it passed almost overhead Richmond Airfield, which is an RAAF base with extensive facilities, at an altitude of 4,000 feet.  In fact ATC advised the pilot that Richmond was available if emergency conditions existed.  The only response from the pilot was: stand by.  Furthermore, although the pilot shortly thereafter advised ATC that he had shut down one engine, and ATC had asked him whether he would require any emergency services on arrival at Bankstown Aerodrome, the pilot replied he was not sure at that time.  I said to Mr Quinn:

Well, that bypassing Richmond, which he was almost over the top of – and these are just impressions that I have to give you perhaps I have read it and, as a person who has spent some 20 years flying aeroplanes, it concerned me that the pilot in that case seemed to be focussed on what was going on inside the cockpit, totally oblivious to the concern about how he was going to put the aircraft down safely.  It didn’t seem to enter his mind until he was at about 600 feet, more or less pleading for help at that point.

56.     It was at that point that Mr Quinn said he thought there was fog at Richmond.  In fact, the ATSB report stated that a terminal area forecast (TAF) for Richmond issued at 0303 hours EST which was valid between 0400 and 2200 hours, forecast variable wind at 3 knots and visibility to be 400 metres in fog until 0900 hours.  I interpreted that TAF to mean there was some low ground fog but I pointed out that because the pilot was almost looking straight down on Richmond, there should have been no problem in seeing through the ground fog.  A problem was more likely to occur when the aircraft was at a low angle on approach to the aerodrome.  The only point I was making was that if Mr Quinn intended to rely on the fact that fog was forecast at Richmond during the period of time when the aircraft passed almost overhead that aerodrome at 4,000 feet, and that was to be offered as an explanation for him not attempting to land there, there would need to be other evidence to support such a contention.

57.     While Avtex has quoted what I said about fog at Richmond, again, this quote needs to be understood in the context of what transpired in relation to the incident.  What I said, shortly after the quoted statement, was:

Or perhaps that somebody didn't recognise the seriousness of his lack of skills entirely and he seemed to lack some – just the manipulating skills as well and there's an element of that and there's an element of being so preoccupied and perhaps so unfamiliar with what was going on that he was ignoring the tower’s calls and explaining to him that he’s passing by Richmond, he just ignored them.  How one could do that is very difficult to understand.  People who have had a lot of flying experience would find that difficult to follow but there may be some very good reasons and I think this is why CASA is going back and looking for them.

58.     Following my statement, Mr Quinn then gave an account of an inquest in which he was involved in Perth regarding a serious accident at Jandakot.  I have no doubt Mr Quinn was simply illustrating that accidents, such as the Canley Vale accident, are difficult to attribute to any particular cause.  I certainly did not disagree with that.  My comments in relation to this incident could not, in my opinion, give rise to a reasonable apprehension of bias.

59.     Mr Quinn also submitted that the issues raised by CASA and the case which Avtex understood it came to the court (sic) to meet was unrelated to the points which I raised.  Mr Quinn submitted that CASA's contention was that the accident was contributed to by a deficiency in the pilot's asymmetric flight training.  Mr Quinn then suggested that it was axiomatic amongst advocates that the best point in a case is the one which the court itself thinks of. 

60.     However, as I have explained above, in hearing a matter which has come before it for review from the original decision-maker, the Tribunal must do more than simply address the case as put by both parties.  It is required to come to the correct or preferable decision on the material which it accepts into evidence irrespective of whether the parties see that as being their case or the case they are required to answer. 

61.     Therefore, while Mr Quinn was critical of the fact that CASA may take up some points which I suggested in the course of the stay application, thereby putting Avtex in the invidious position of having to argue against a point conceived against it by the Tribunal itself, it should be apparent that that sometimes is the nature of the inquisitorial process.  In many respects, that is why I pointed to some of these possibilities arising so that both parties might be in a position at the substantive hearing to address those concerns.  Nevertheless, I do not accept that raising the issues that I have in relation to this accident, might possibly lead a person to hold reasonable apprehension of bias against Avtex.

SUBMISSIONS

62.     Mr Quinn referred extensively to Dye's case in his oral submissions.  In particular, as I understood Mr Quinn's oral submissions on the question of disqualification for apprehension of bias, he pointed to what Katzmann J said about making a finding on credit.  There, at [96], her Honour said:

Moreover, it is certainly arguable that there is a fine line between making a finding on credit and identifying problems with credit – perhaps too fine a distinction for a lay observer to draw. Unfortunately, none of the authorities to which I was taken in argument or that I have found myself concern facts sufficiently comparable to those with which this case is concerned.

63.     Mr Quinn also submitted that the High Court case of Livesey v New South Wales Bar Association (1983) 151 CLR 288 raised a similar point about credit. In that case, the Court stated that the transcript of the hearing indicated that reluctance of the appellant to call a witness flowed, at least in part, from the fact that the evidence which the witness would give had been disbelieved by two members of the Court of Appeal in a previous case. If the appellant did not call the witness, he would be in a position where two members of the Court of Appeal, having heard her give evidence in the previous case in which the appellant was neither a party nor a witness, had published in their respective judgments the conclusion that the witness' evidence was untruthful and demonstrated that the claim as stated by the appellant should be rejected.

64.     As I understood Mr Quinn, he was submitting that I had either made a finding on credit regarding Mr Siewert's evidence or, if I had not, by identifying problems with Mr Siewert’s credit, the distinction would be too fine for a lay observer to draw. 

65.     With respect to Mr Quinn, the transcript of the stay hearing discloses that I did neither of those things.  I said that I was very sceptical of Mr Siewert's statement in his Affidavit where he said he had never told pilots within Avtex to avoid recording defects on aircraft maintenance releases or that they should fly aircraft with outstanding defects.  Because Mr Quinn, in his submissions, put it more broadly than that, stating that Mr Siewert had said in his Affidavit that he had not been involved in conduct to deter pilots from entering defects on the maintenance release, my response was directed at the narrower expression found at paragraph 97 of Mr Siewert's Affidavit.  That much is clear because I said he claimed never to have told pilots to avoid recording defects.  I also said that might well be true, but the statement did not exclude doing other things which might have the effect described by Mr Quinn in his submission. 

66.     Quite plainly, I made no findings on credit and in fact I did not even identify a problem with credit.  What I identified was a problem with the way Mr Quinn had described Mr Siewert's statement in his Affidavit at paragraph 97.  It was inaccurate.  Mr Siewert’s statement left open the possibility that he had in fact taken other actions, rather than simply not telling pilots to avoid recording defects on the aircraft's maintenance release.  My statements, properly construed, cannot be a reference to making a finding on credit or identifying problems with credit.  Therefore, I reject Mr Quinn's submissions that my statements in respect of what Mr Siewert said at paragraph 97 of his Affidavit had anything to do with his credit as a witness.

67.     Even if I am wrong about my understanding of what the transcript discloses about Mr Siewert's evidence, it cannot be said that this case turns on Mr Siewert's credit.  In fact, as was so clearly stated by Kirby J in Johnson's case, where he said, at 505‑506:

In earlier times, great confidence was placed in the capacity of adjudicators to discern the truth on the basis of their impressions of witnesses. However, the trend of modern authority has cast doubts on that supposedly unique perceptiveness [96] . That is why many adjudicators now rest their decisions, so far as they can, on indisputable facts, contemporary documents and the logic of the circumstances, rather than mere impressions. This is a desirable development [97] .

CONCLUSION

68.     For the reasons I have attempted to articulate in this decision, I am unable to find any reason which might cause an independent lay person sitting in the hearing room to form the apprehension that I have prejudged this matter.  Therefore, I declined to disqualify myself from hearing the substantive case.

I certify that the sixty eight [68] preceding paragraphs are a true copy of the reasons for the decision herein of  
Mr Egon Fice, Senior Member

Signed: …………..Elise Montalto………………….…………

Associate

Date of Hearing  13 September 2010
Date of Interlocutory Decision        14 September 2010
Counsel for the Applicant              Mr T W Quinn
Solicitor for the Applicant               Mr B Martin
Counsel for the Respondent          Mr I Harvey
Solicitor for the Respondent          Mr J Rule