Broadbent, M.R.M. v Civil Aviation Authority

[1994] FCA 424

q . 4 9

JUDGMENT No. .....,........ .. J .....k...

9)No. QG 118 of 1991

ISTRY 1 1

BETWEEN:  RUSSELL MARK BROADBENT

First Applicant

AND :  L PTY. LTD.

Second Applicant

AND :  c V

Respondent

)IINUTES OF ORDERS

Drummond J
29 June, 1994
Brisbane

1. The application is dismissed.

2.         The costs of and incidental to this application be the reapondent's costs in the proceedings.

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

THE FEDERAL COURT OF AUSTRALIA ) No. QG 118 of 1991

TRICT REGISTRY 1

- 1

BETWEEN: mCHAEL RUSSELL MARK BROADBENT

First Applicant

AND :  D T C H E L PTY. LTD,

Second Applicant

AND :  W I L AVIATION A U T H O R m

Respondent

!%!?am:  Drummond J

m: 29 June, 1994

- 8 Brisbane

REASONS FOR JUDQIENT

This ie the latest round in some very bitter litigation in which I have reserved judgment on issues which wer3 litigated at lei-gth before me late last year. The object of the action in which judgment is reserved is to obtain an order compelling the Civil Aviation Authority ("the

Authority') to appoint Dr. Broadbent chief pilot of Montchel	Pty. Ltd.. Although Dr Broadbent was deprived of his chief
pilot's appointment by the Civil Aviation Authority, Montchel still holds an Air Operator's Certificate ('AOC"). Pursuant
to a. 4 ( 2 ) the W r t and Communications

.I+ act ( N u ) 1992, this AOC, although expressed to be

for an unlimited period, will expire tomorrow.

On 19 April last the Authority wrote to Dr. Broadbent, in his capacity as principal, not of Montchel, but of another of his companies, Gold Coast Aviation Centre Pty. Ltd., drawing Dr. Broadbent's attention to the impact of the legislation that I have referred to upon the AOC held by Gold Coast Aviation. The Authority invited Dr. Broadbent to make application on behalf of Gold Coast Aviation to renew its AOC. Dr. Broadbent responded promptly on 28 April, 1994 by lodging an appropriate application in respect of Gold Coast Aviation, but he accompanied it with an application for the renewal of Montchel's AOC.

The response of the Authority to the application for the renewal of Montchel's AOC is dated 9 May and was received by Dr. Broadbent, so he says, on or about 11 May. In this letter the Authority advised Dr. Broadbent as follows:

"As Montchel Pty. Ltd. does not currently meet the requirements of section 27 paragraph (6) of the Civil Aviation Act 1988, in that there is no approved Chief Pilot, I cannot renew the AOC at this

t h e . "

Dr. Broadbent's response was very prompt indeed.

Immediately he received that letter he wrote on 11 May to the
Authority in the following terms:

"Rather than take you to the M T regarding this matter Bill, it might be best for you to reissue the paperwork for Montchel's AOC. I do not follow your logic in your letter, and 1 think it might be prudent for the C M to allow the status quo to continue and Montchel to retain its AOC which can

re-activate immediately the Court decision is made in my favour (as I am confident it will be). Your present decision is adding further insult to already substantial injuries suffered by our Company and myself, as it stands, and of course, will only add to the damages to be awarded eventually.

I will give you this opportunity to reconsider your

decision and help minimise the CAA exposure."

The Authority did not reply. Dr. Broadbent let things lie until 21 June when, according to paragraph 5 of his affidavit filed 29 June, 1994, having heard nothing further from the Authority in reply to his letter of 11 May, he:

"referred the impending lapse of the Montchel Pty. Ltd. Air Operator's Certificate to (his) solicitors on 2lst June 1994."

Those solicitors did not approach the Court until this morning for an urgent hearing of an application on behalf of Dr. Broadbent and Montchel. It appears, however, that immediately they received their instructions from Dr. Broadbent on 21 June, they opened negotiations with the

Authority's solicitors, which continued up to yesterday, in an	endeavour to resolve the matter to Dr. Broadbent's
satisfaction.
The application is in the following terms. The basic relief it seeks is an order that:

"Until further order and upon the applicant's undertaking not to conduct air service operations in reliance upon any air operator's certificate issued by the respondent pursuant to any orders made by this Honourable Court and until determination of

this action the respondent be ordered:

(i)  to appoint the first applicant as Chief Pilot of the second applicant.

(ii) to issue unto the second applicant and maintain current a new Air Operator's Certificate pursuant to section 27 of the Civil Aviation Authority Act 1988 (as amended)."

~t is important to note the undertaking offered. The Authority seems to have ignored this. Instead, it has raised every objection it can to the relief sought being granted.

It says that if the AOC is renewed under a court order, notwithstanding the undertaking, if Montchel wins the litigation, it may resume flying operations before the Authority can carry out necessary inspections which I take to be of a kind designed to protect the public safety. But it was conceded that the Authority had the capacity to carry out those inspections immediately, i.e., on the same day that judgment is given, at least if judgment is pronounced in the	morning. And it would follow that if, as a result of those	inspections, the Authority had good reason for revoking the
certificate there would be nothing at all to stop it doing so, almost certainly before Montchel could resume operations.
Secondly, the Authority says that a mandatory interlocutory injunction can only be granted when there is a high degree of certainty that the plaintiff will succeed in the action. But there is authority the other way. I was referred to Films Rover International Ltd. v cannon Film Sale@
m (1987) 1 W.L.R. 670 where at 681 Hoffman J said:

"If it appears to the court that, exceptionally, the

case is one in which withholding a mandatory interlocutory injunction would in fact carry a greater risk of injustice than granting it even though the court doee not feel a 'high degree of assurance' about the plaintiff'e chances of establishing hie right, there cannot be any rational basie for withholding the injunction."

As a last ditch argument the Authority submitted that, if relief is granted, it should not include the order sought in paragraph l(ii) of the motion, viz., the order requiring the Authority, subject to the undertaking not to do anything with it, to issue to Montchel and maintain an AOC.

But in view of the undertaking offered, a breach of which will attract the sanctions for contempt of court, the Authority could not identify any good reason for saying why an order in t e m e cf paragraph l(ii) shauld not be made.

I will adopt the approach of Hoffman J in the

m case.

The Authority, in my view, cannot show any detriment to itself or to the public interest, if relief is granted on the terms proposed. I can only infer that its reasons for opposing the application may be grounded in the bitterness between the partiee.

But that is only part of the way the applicants must travel to justify the intervention of the Court sought.

I am not satisfied that the letter from the Authority's solicitors to the applicants' solicitors dated today provides any foundation at all for concern by the applicants that, if they have to apply for a new AOC in the event of succeeding in the litigation, the Authority may use that as an occasion for imposing more onerous conditions on the new AOC than it could properly impose on one renewed now under court order. The letter rather tends to show that that will not happen.

The terms of the letter that Dr. Broadbent wrote on 11 May and his delay in not seeking to set things in motion for the application that has come before this Court not until 21 June, a delay which to my mind is difficult to understand if serious detriment is truly likely to flow to Montchel if its AOC lapses, all suggest that, like the Authority, Dr.

bitterness between the parties than concern that Montchel will Broadbent is motivated more by feelings generated by the suffer any real prejudice if its AOC lapses tomorrow.

The only detriment identified by the applicants is that Montchel may have to wait the ten working days referred to in the Authority's solicitor's letter of 29 June for the necessary inspections to be carried out before obtaining a new AOC, if the existing one is allowed to lapse tomorrow. Thia is some detriment, but not a substantial one: the evidence in the litigation was that for reasons wholly unrelated to the activities of the Authority, Montchel's air operations have very largely run down. The evidence indicates, and counsel for the applicants conceded this, that at most if Montchel had to wait ten working days for the issue of a new AOC, assuming it wins the litigation, it might, so far as the evidence reveals, miss out on one or perhaps two charters.

In all the circumstances of this unfortunate matter,
if the Authority were to undertake to move a little more

quickly than what seems to me to be in the fairly relaxed way outlined in the solicitor's letter of 29 June, and to undertake to conduct all necessary inspections and, if appropriate, to issue an AOC to Montchel within five working days of the approval of Dr. Broadbent or any other person as

Montchel's chief pilot, that would put an end to all suggestions of any real detriment to Montchel, should its AOC

be allowed to lapse. If, however, the Authority is not

prepared to give that undertaking then, in the circumstances

of this case, I think sufficient injustice, relatively minor

though it is, may flow to Montchel to justify the grant of the
relief sought.

Upon the undertaking of the Authority as advised by counsel in the terms I have mentioned, the application is dismiseed.

(After hearing submissions in relation to costs, W. Justice
Drummond continued.)

It seems to me that the Authority has been
substantially euccessful in this matter. Ordinarily it would

be appropriate to reflect that in an order for costs in its

favour, but, because of the motivations I have ascribed to the Authority, and the reasons I have given, I propose to mark my view of its approach to this application by giving it more limited relief. I will order that the costs of and incidental to this application be the respondent Authority's costs in the proceedings.

I certify that this and the preceding

seven pages are a true copy of the reaeons for judgment herein of the Honourable Mr. Justice Drummond.

~esociate r Ai'&.-,J

Date 8 29 June, 1994

Counsel for the applicants:	G.J. Radcliff
Solicitors for the applicants:	Robinson Robinson h Downing
Counsel for the respondent:	J.C. Sheahan
Solicitors for the respondent:	Malleeons Stephen Jacques
Date of Hearing:	29 June, 1994