Broadbent, M.R.M. v Civil Aviation Authority
[1991] FCA 906
•21 OCTOBER 1991
Re: MICHAEL RUSSELL MARK BROADBENT and MONTCHEL PTY. LTD.
Re: CIVIL AVIATION AUTHORITY
No. Q G118 of 1991
FED No. 906
Administrative Law
COURT
IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION
Pincus J.(1)
CATCHWORDS
Administrative Law - refusal to supply reasons - delay in applying - whether extension of time should be granted
Administrative Decisions (Judicial Review) Act 1977
HEARING
BRISBANE
#DATE 21:10:1991
Counsel for the applicants: Mr P.D.T. Applegarth
Solicitors for the applicants: Gilshenan and Luton as town
agents for Robinson and Robinson
Counsel for the respondent: Mr D.J.S. Jackson QC
Solicitors for the respondent: Mallesons Stephen Jaques
ORDER
The respondent's objection to competency be dismissed.
The time for making the application be extended sofar as that is necessary until 9 September 1991.
The request for further and better particulars be given by 31 October 1991.
The response to that request for further and better particulars be given by 7 November 1991.
The applicants file and serve further affidavits, if any, by 18 November 1991.
The respondent file and serve further affidavits, if any, by 16 December 1991.
The application be reviewed at 9.30 a.m. on 18 December 1991.
The Registrar, on application being made to him, fix a period of five days for trial.
Costs of the objection to competency, the application for extension of time and the directions hearing today, that is, all costs of and incidental to the hearings of 17, 18 and 21 October 1991 be costs in the proceedings.
NOTE: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
JUDGE1
This is an application for an extension of time to bring proceedings by way of review of a decision under the Administrative Decisions (Judicial Review) Act 1977 ("the Judicial Review Act"). The decision attacked was made on 28 March 1991 and is said to have been made under a provision of Civil Aviation Orders, which appear to constitute sub-delegated legislation made under the Civil Aviation Act 1988. The respondent says that the Court has no jurisdiction because the application is out of time. The respondent does not suggest the decision is otherwise unreviewable.
The underlying dispute relates to the disinclination of the Authority to allow the first applicant, who appears to be an experienced airman, to act as chief pilot of an aviation business involving mainly air charter work. The material filed on behalf of the applicant alleges, in part, bad faith consisting in malice and spite. This may create a difficulty in applying provisions referred to below, with respect to the extension of time. I have not even formed a preliminary view as to whether the allegation of bad faith is likely to succeed, but a perusal of the material filed suggests that it is at least not obviously frivolous. In any event, the respondent's counsel, Mr Jackson QC, did not argue that an extension of time should be refused on the ground that the application had no substance.
The main features of the rather complicated history of the matter are as follows. On 22 March 1990, the first applicant was approved by the respondent to occupy the position of chief pilot of the second applicant. That approval was cancelled on 29 October 1990 and an application was then made to the Administrative Appeals Tribunal, challenging the cancellation. On 11 December 1990, the Tribunal stayed the decision cancelling the approval. But on 28 February 1991, it ruled that there was no jurisdiction to review the decision. That was thought to be so, it appears, because, owing to a mistake at law, the initial approval on 22 March 1990 was void, there being no statutory support for it. That seems to me to have been at least as much the fault of the respondent as of the applicants. The Tribunal then indicated that if the first applicant wished to pursue the matter, he would have to apply for fresh approval. That was done and, after some correspondence, the respondent refused that application on 28 March 1991. The first applicant, acting for himself, then took the matter to the Tribunal again, but the Tribunal dismissed his application on the ground that it had no jurisdiction. The respondent appears to take the view that the first applicant should have obtained proper advice and not approached the Tribunal himself, and it was suggested that the first applicant should have proceeded under the Judicial Review Act promptly, instead of going back to the Tribunal again.
On 11 July 1991, reasons under s.13 of the Judicial Review Act were sought; that is, reasons for the decision given on 28 March 1991. They were refused on 22 July 1991.
It appears to me that up to that stage, the applicants had proceeded with reasonable promptitude, although, according to the Tribunal's decision, the attempt to invoke the jurisdiction of the Tribunal was an error. But from 22 July 1991 to 9 September 1991 when the application was filed in this Court, there was further delay for which no very good excuse has been given. The applicants' solicitor says the delay was his fault and I accept that, but it is not every case of delay on the part of lawyers which excuses the client.
There was some discussion about the effect of s.11 of the Judicial Review Act. One point which emerges, I think, from that is the difficulty of applying the section and that appears to me to be a factor in the applicants' favour.
I will not set the section out. The main contention by Mr Jackson was that the matter is caught by s.11(3)(a). That appears to me, prima facie, correct, but a hidden difficulty in it is the use of the expression "the reasons for the decision". This seems to mean not the ostensible reasons but the true reasons, and in a case of this sort it is difficult to see whether the reasons have been given without going into the facts; the applicants' case seems to involve the proposition that the reasons given are not genuine, but that the decision was prompted by quite other considerations. Another view is that any reasons, whether false or otherwise, will do to bring s.11(3)(a) into operation, but that seems to me to be unlikely. If s.11(3)(a) does not apply, then the case appears to be one in which there is no time limit. Mr Jackson suggested that s.11(3)(b)(iii) would apply, but in my opinion that is incorrect. Section 11(3)(b) appears to deal with three cases, each of which is specified by the language used before the dash. The text after the dash does not specify the case, but gives the day on which the time limit begins. The present is case (ii), in my view, although none of the circumstances after the dash apply to it. There was a refusal to supply reasons, but that was not a notification that the applicant was not entitled to make the request for reasons.
However, I find it unnecessary to determine whether the application is out of time under a 28 day limit which would have expired on 25 April, or is caught by s.11(4). Even in the latter case, I think the applicants are out of time because more than a reasonable time has elapsed before the application was filed. I will, however, extend the time. The application appears to have substance, or at least is not shown to be without substance. As from 2 April 1991, five days after the decision impugned was made, the respondent knew that it was being challenged, and from that time has never been in any doubt that it has been challenged. There seems to be no prejudice to the respondent and the only really culpable delay was, on the evidence, due to the fault of the applicants' solicitor.
One indication of the lack of urgency in the matter from the respondent's point of view, was that, as I think I should mention, the respondent, before Mr Jackson appeared, sought an adjournment for a fortnight to enable another counsel to appear.
The reason I raised the question of the form of order is because I have had difficulty in deciding which provision of s.11 applies. Eventually, I have said that whichever one applies, the application is out of time, but the two provisions seem to require different orders. If it is out of time under the 28 day limit, then it would be a matter for an order under s.11(1)(c) which says:
"lodged within the prescribed period or within such further time as the Court...allows".
If it is out of time under the reasonable time limit, then the Court may refuse to entertain the application on that ground.
I will dismiss the respondent's objection to competency, and also extend the time for making application so far as that is necessary, until 9 September 1991. I will direct that the Registrar, on application being made to him, fix a period of five days for trial.
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