Broadbent, M.R.M. v Fairbairn, W.A.
[1995] FCA 457
•30 Jun 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: 30 June, 1995
WHERE MADE: Brisbane
THE COURT ORDERS THAT:
The applicant's application for interlocutory relief be adjourned to 2.15 p.m. on Thursday, 6 July, 1995.
The Authority by its servants and agents be restrained until 6.00 p.m. on Thursday, 6 July next, or earlier order, from suspending, cancelling or attaching any conditions to the applicant's pilot's licence which would prevent or restrict his exercising the rights he now has pursuant to that licence but only insofar as the Authority may seek to rely in justification of any action by way of suspending, cancelling or attaching restrictive conditions to the applicant's licence upon events that have occurred prior to 10.00 a.m. today or upon circumstances that existed as at 10.00 a.m. today.
The costs of today be reserved to Thursday, 6 July, 1995.
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: 30 June, 1995
Place: Brisbane
REASONS FOR JUDGMENT
I have before me an application by Dr. Broadbent for an interlocutory injunction to restrain the Civil Aviation Authority ("the Authority") from taking action to affect his air pilot's licence pending determination of his application for the review of a decision by an Authority officer, Mr. Fairbairn, that required him to undergo an examination on 27 June last. The examination related to his flying skills and suitability to hold an air pilot's licence, as opposed to his health. The application cannot be heard today. The Authority is not in a position, in view of the very late notice received, to deal with the matter. I have set the application for interlocutory relief down for hearing on Thursday afternoon, 6 July next.
Dr. Broadbent and the Authority have been engaged in often bitter litigation in this Court. The Authority does not undertake not to affect Dr. Broadbent's licence in the period between now and 6 July by the exercise of its statutory powers of suspension and cancellation. I am therefore asked to impose an interim restraint on the Authority taking such action until the interlocutory matter is disposed of. That is opposed by the Authority. It is said, among other things, that I would be preventing the Authority exercising its statutory power in the interests of protecting the public if I were to impose the restraint. I reject the Authority's submission.
Notwithstanding earlier suspensions, Dr. Broadbent has a licence under which he has been free to fly since 26 May last, i.e., for nearly five weeks. It is inconceivable, if there were grounds for thinking that his being free to fly might now be exposing the public to any risk, that the Authority would not have acted to prohibit him from continuing to fly. The Authority has not attempted to point to any explanation why, if his being free to fly for the past five weeks may have put public safety at risk, the Authority has not already acted to suspend or cancel his licence.
There is, however, evidence that the Authority may act in the intervening period in reliance on Dr. Broadbent's failure to submit to the examination directed by Mr. Fairbairn on 26 May 1995, the validity of which Dr. Broadbent is challenging by his application filed in this Court on 23 June, 1995, by suspending or cancelling his licence. In its letter of 26 June, 1995, in which the Authority officer, Mr Fairbairn, rejected an application for an adjournment of the examination appointed to take place on 27 June, 1995 Mr. Fairbairn advised Dr. Broadbent that if he failed to attend he may be "subject to prosecution for breach of regulation 5.39(6) of the Civil Aviation Regulations and the Authority may take appropriate steps to vary, suspend or cancel [his] licences." The letter of 28 June, 1995 from an Authority officer, Mr. Taylor, to Dr. Broadbent refers to the examination order of 26 May, 1995, to Dr. Broadbent's failure to undergo it and concludes:
"In relation to the matters described above, you are invited to provide me, in writing, with any comments you may care to offer. Any written comments received by me by 1200 hours on Friday 30 June 1995 will be taken into consideration in connection with such further action as the Authority may be taking in respect of this matter."
I will therefore order that the Authority by its servants and agents be restrained until 6 p.m on Thursday, 6 July next, or earlier order, from suspending, cancelling or attaching any conditions to Dr. Broadbent's pilot's licence which will prevent or restrict him exercising the rights he now has pursuant to that licence but only insofar as the Authority may seek to rely in justification of any action by way of suspending, cancelling or attaching restrictive conditions to his licence upon events that have occurred prior to 10 a.m. today or upon circumstances that existed as at 10 a.m. today.
It should be abundantly clear that the interim restraint that I have imposed leaves the Authority entirely free to exercise its statutory powers, including those arming it with authority to act in the interest of public safety, against Dr. Broadbent if circumstances arise between now and the Thursday hearing that would justify such action. The costs of today will be reserved to 6 July, 1995.
I certify that this and the preceding
three pages are a true copy of the
reasons for judgment herein of the
Honourable Justice Drummond.
Associate:
Date: 30 June, 1995
0
0
0