Broadbent v Civil Aviation Safety Authority

[2000] FCA 342

FEDERAL COURT OF AUSTRALIA

Broadbent v Civil Aviation Safety Authority [2000] FCA 342

MICHAEL RUSSELL MARK BROADBENT v CIVIL AVIATION SAFETY AUTHORITY
Q 301 of 1999

DRUMMOND J
20 MARCH 2000
BRISBANE

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	Q 301 OF 1999

BETWEEN:	MICHAEL RUSSELL MARK BROADBENT APPLICANT
AND:	CIVIL AVIATION SAFETY AUTHORITY RESPONDENT

JUDGE:	DRUMMOND J
DATE OF ORDER:	20 MARCH 2000
WHERE MADE:	BRISBANE

THE COURT ORDERS THAT:

1.The application for leave to appeal be dismissed.

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

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	Q 301 OF 1999

BETWEEN:	MICHAEL RUSSELL MARK BROADBENT APPLICANT
AND:	CIVIL AVIATION SAFETY AUTHORITY RESPONDENT

JUDGE:	DRUMMOND J
DATE:	20 MARCH 2000
PLACE:	BRISBANE

REASONS FOR JUDGMENT

1. This is an application for leave to appeal an interlocutory decision of Cooper J made on 23 December 1999 refusing to stay a decision of the Civil Aviation Safety Authority (“CASA”) to cancel Dr Broadbent’s pilot licences.  The CASA decision was made in March 1996.  Dr Broadbent promptly appealed it to the Administrative Appeals Tribunal (“AAT”) and equally promptly got an order from the AAT staying the CASA cancellation decision.  It was not until four years later on 20 December 1999 that the AAT gave its decision on Dr Broadbent’s challenge to the CASA cancellation decisions, by which the AAT upheld those cancellations.

2. CASA did not appeal the stay ordered by the AAT in March 1996 with the result that Dr Broadbent continued to fly for four years after his licence was ordered to be cancelled.  During this period he performed flight duties for his company, Pacific Air Freighters, particularly in respect of a DC4 aircraft it operated.  Immediately following the AAT decision of 20 December 1999, an ongoing dispute between Pacific Air Freighters and CASA over Pacific Air Freighters’ entitlement to renewal of its Air Operator’s Certificate (“AOC”) was resolved, when CASA refused to renew the AOC in reliance on, among other things, the loss to Pacific Air Freighters of Dr Broadbent as a qualified pilot able to perform flight duties for it, including check pilot duties with respect to the chief pilot of the DC4.

3. Cooper J refused to further stay the CASA cancellation decisions of March 1996 pending the hearing of the appeal which Dr Broadbent promptly instituted in this Court against the AAT decision of 20 December 1999. His Honour had power to grant such a stay under s 44A(2)(b) the Administrative Appeals Tribunal Act 1975 (Cth).

4. His Honour refused the stay essentially on two grounds.  Firstly, his Honour took the view that refusal of the stay would not render Dr Broadbent’s appeal to this Court nugatory if the appeal was ultimately successful because what was involved were cancellation decisions.  “If Dr Broadbent wins,” so his Honour pointed out, “he will get his licences back”.  His Honour contrasted the position with decisions that are sometimes made and challenged which involve the suspension, for a time, of a licence and how it is always likely that an appeal against a suspension of a licence running only for a relatively short period of time can be rendered nugatory unless a stay is ordered because the licence may have expired before the challenge to the suspension can be determined. 

5. Secondly, his Honour referred to the impact cancellation of Dr Broadbent’s licences would have upon Pacific Air Freighters, but considered that that was not a sufficient justification to warrant the grant of the stay sought by Dr Broadbent.  His Honour explained this aspect of his reasoning in [9] of his ex tempore reasons for judgment:

   “I am not satisfied that the circumstances of those third parties are immediately relevant to the present proceedings.  I say that for these reasons.  The difficulties being confronted, if that be the case, by these companies, relate to the particular type of aircraft which they operate.  There are a limited number of persons licensed to operate the aircraft within Australia.  It is this characteristic of the aircraft, its acquisition notwithstanding this characteristic, and its use as a commercial freight carrier which are the prime cause of the problem presently confronting the operators.  One would reasonably expect that if a suitably qualified and licensed pilot could be found, then the difficulties, if any, confronted by the operators of the DC4 would be immediately alleviated.”

6. The principles that I must apply in deciding whether or not to grant leave are well-established.  They are that an applicant for such leave must show, firstly, that the judgment to be appealed is, in all the circumstances, attended with sufficient doubt to warrant it being reconsidered by the Full Court and the applicant for leave must further show that a substantial injustice would result, if leave to appeal were refused, supposing the interlocutory decision the subject of the appeal is ultimately identified as erroneous.  See Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397.

7. Section 44A(2) the Administrative Appeals Tribunal Act provides:

   “Where an appeal is instituted in the Federal Court of Australia from a decision of the Tribunal, that Court or a Judge of that Court may make such order or orders staying or otherwise affecting the operation or implementation of either or both of the following:

   (a)the decision of the Tribunal or a part of that decision; and

   (b)the decision to which the proceeding before the Tribunal related or a part of that decision;

   as that Court or Judge considers appropriate for the purpose of securing the effectiveness of the hearing and determination of the appeal.”

8. If His Honour had confined his evaluation of the impact of cancellation on Pacific Air Freighters to what he said in [9], it may be that that would have exposed his decision to a charge that it contains error sufficient to warrant review on appeal within the principles established by the Decor Corporation case to which I have referred.  Dr Broadbent, in fact, relied on his licences to perform flight duties of the kind I referred to for Pacific Air Freighters, services not readily procurable from others within Australia given the unusual nature of the aircraft it operated.

9. Dr Broadbent’s appeal could therefore be said to be in substantial part intended to ensure that he would be able to continue to supply, and Pacific Air Freighters would be able to continue to receive from him, specialised flight services as check pilot in respect of the aircraft.  Pacific Air Freighters’ need for Dr Broadbent’s services is not, I think, answered by saying that prejudice to it follows from its decision to acquire an unusual aircraft, not readily able to be crewed without Dr Broadbent, especially since Pacific Air Freighters has been relying on Dr Broadbent’s services for four years.  But his Honour, though not specifically referring to the consideration in his reasons, was fully alert to the limited impact on Pacific Air Freighters which the refusal of the stay sought by him would, in truth, have.  His Honour said:

   “The only thing that is before me at the present time is a question of further staying the original decisions to cancel your licences.  Even if you were successful in that, a decision has been made in relation to the certificate, an adverse decision, which was communicated to you this morning, so that even if I granted now, if I have got power to, a stay of the original decisions, it is not going to see that aircraft flying today or tomorrow or within the reasonable foreseeable future unless there is a fresh and further decision made by the Authority.”

10. That his Honour was alert to that important consideration weakens substantially in my view the argument that there is appealable error in his decision refusing the stay.

11. As to the second part of the Decor Corporation test, that is bound up with the impact the stay will have on Pacific Air Freighters and on the capacity of Dr Broadbent to provide his flying services to that company. His Honour, at p 14 of the transcript in the passage I have set out, correctly assessed the position. It is apparent from what Dr Broadbent had to say today that a stay of cancellation of his pilot’s licences would not by any means necessarily result in the issue of the AOC currently denied to Pacific Air Freighters.

12. There are other considerations quite apart from the question of Dr Broadbent being licensed to fly that stand in the way of Pacific Air Freighters being able to put the DC4 back into the air.  There are questions, for example, concerning the acceptability of Dr Broadbent’s wife as the Chief Executive Officer of Pacific Air Freighters and there are also issues the subject of the application that was before me this morning in Q 8 of 2000 brought by Pacific Air Freighters itself against CASA which would need to be resolved in its favour before Pacific Air Freighters could obtain the AOC.  I am also able to hear Dr Broadbent’s appeal soon after the sittings of the Full Court at which he might be able to have an appeal heard against Cooper J’s order, were I to grant leave to appeal.

13. In these circumstances, I am not prepared to grant leave to appeal the decision of Cooper J’s of 23 December 1999.

I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Drummond.

Associate:
Dated:             23 March 2000

Counsel for the Applicant:	The applicant appeared in person.
Counsel for the Respondent:	Mr B Porter
Solicitor for the Respondent:	Mallesons Stephen Jaques
Date of Hearing:	20 March 2000
Date of Judgment:	20 March 2000