Broadbent, M.R.M. v Fairbairn, W.A - [1995] FCA 501

CATCHWORDS

ADMINISTRATIVE LAW - Judicial review - ambit of courts power to grant a stay pursuant to s 15 Administrative Decisions (Judicial Review) Act - whether an appropriate case to grant a stay.

CIVIL AVIATION REGULATIONS - Applicant breached Civil Aviation Regulations by entering controlled airspace without clearance - pursuant to regs 5.38 and 265 applicant's pilot's licence suspended until examination undertaken - whether that suspension continued, notwithstanding the review decision pursuant to reg 5.39.

Administrative Decisions (Judicial Review) Act 1977 (Cth) - s 15
Civil Aviation Regulations - regs 5.38, 5.39, 265 and 269

Erinford Properties Ltd. v Cheshire County Council (1974) 1 Ch 261 Referred to
Faingold v Zammit (1984) 1 FCR 87 Applied
Monoher v Minister for Immigration, Local Government and Ethnic Affairs (1991) 24 ALD 405 Referred to
Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24 Referred to
Perkins v Cuthill (1981) 34 ALR 669 Referred to
Snow v Deputy Commissioner of Taxation (1987) 14 FCR 119 Applied

Michael Russell Mark Broadbent
v William Allan Fairbairn & Anor.
QG 93 of 1995

Drummond J
Brisbane
10 July, 1995

IN THE FEDERAL COURT OF AUSTRALIA )    No. QG 93 of 1995
QUEENSLAND DISTRICT REGISTRY     )
GENERAL DIVISION                 )

BETWEEN: MICHAEL RUSSELL MARK BROADBENT

Applicant

AND: WILLIAM ALLAN FAIRBAIRN

First Respondent

AND:CIVIL AVIATION AUTHORITY

Second Respondent

MINUTES OF ORDERS

JUDGE MAKING ORDER:         Drummond J
DATE OF ORDER:              10 July, 1995
WHERE MADE:                 Brisbane

THE COURT ORDERS THAT:

The applicant's notice of motion be dismissed.

The applicant pay the respondents' costs of and incidental to the notice of motion, to be taxed.

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

IN THE FEDERAL COURT OF AUSTRALIA )    No. QG 93 of 1995
QUEENSLAND DISTRICT REGISTRY     )
GENERAL DIVISION                 )

BETWEEN: MICHAEL RUSSELL MARK BROADBENT

Applicant

AND: WILLIAM ALLAN FAIRBAIRN

First Respondent

AND:CIVIL AVIATION AUTHORITY

Second Respondent

Coram:    Drummond J
Date:     10 July, 1995
Place:    Brisbane

REASONS FOR JUDGMENT

The applicant, a licensed air pilot, is seeking judicial review of a decision of the first respondent made under the Civil Aviation Regulations requiring the applicant to take an examination of his aeronautical skills and knowledge. It was accepted by the second respondent that such a decision is open to the kind of review sought.

By the notice of motion that is before me, the applicant seeks an order under s. 15(1) the Administrative Decisions (Judicial Review) Act 1977 (Cth) ("the ADJR Act") suspending the operation of this examination decision until the determination of his Administrative Decisions (Judicial Review) ("ADJR") challenge. Alternatively, he seeks an interlocutory injunction restraining the second respondent, now the Civil Aviation Safety Authority ("the Authority"), from engaging in conduct for the purpose of making a decision in terms of a letter from the second respondent to the applicant dated 28 June, 1995.

This letter by Mr. Taylor, an officer of the Authority, to…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [1995] FCA 501
Decision Date: 10 JULY 1995

CaseChat Overview and Summary

In the case of Broadbent, M.R.M. v Fairbairn, W.A, the applicant, Michael Russell Mark Broadbent, sought judicial review of a decision made under the Civil Aviation Regulations that required him to take an examination of his aeronautical skills and knowledge. The applicant also sought an order under s. 15(1) of the Administrative Decisions (Judicial Review) Act 1977 (Cth) suspending the operation of this examination decision until the determination of his challenge. Alternatively, he sought an interlocutory injunction restraining the Civil Aviation Authority from engaging in conduct for the purpose of making a decision in terms of a letter dated 28 June, 1995.

The court had to decide whether it was an appropriate case to grant a stay pursuant to s 15 of the ADJR Act and whether the suspension of the applicant's pilot's licence continued, notwithstanding the review decision. The court found that the applicant had not satisfied the court that he had an argument, on the material presently available, which was of sufficient substance which, if accepted, would be likely to result in the decision for examination being overturned. The court also found that there was no basis in the material before it to conclude that the applicant's continued presence in the air constituted a real danger to public safety.

The court dismissed the applicant's notice of motion and ordered that the applicant pay the respondents' costs of and incidental to the notice of motion, to be taxed. The court held that the applicant's major concern was with the effect such an examination decision would have on his reputation as a pilot, but those concerns could be fully met if the review application succeeded, even if the applicant was required to undergo a period of licence suspension that is served, either wholly or in part, before his review application is finally determined. The court held that it would not be just to grant a stay under s 15(1)(b) of the ADJR Act.

Orders