Byers v Civil Aviation Safety Authority
[2005] FCA 1751
•6 DECEMBER 2005
FEDERAL COURT OF AUSTRALIA
Byers v Civil Aviation Safety Authority [2005] FCA 1751
ADMINISTRATIVE LAW – appeal – civil aviation – decision of Administrative Appeals Tribunal cancelling applicant’s pilot licences – findings of statutory and regulatory breaches – appeal on basis that finding of breach of statute unreasonable – whether grounds of appeal disclose any question of law – whether appeal futile in any event as cancellation decision made on multiple grounds - no unreasonableness in Tribunal’s decision
Administrative Appeals Tribunal Act 1975 (Cth) ss 44, 44(3)(b)
Federal Court of Australia Act 1976 (Cth) s 19(2)
Civil Aviation Act 1988 (Cth) s 20ACivil Aviation Regulations 1988
Abalos v Australian Postal Commission (1970) 171 CLR 167
Re Repacholi v Civil Aviation Safety Authority (2003) 75 ALD 312
Waterford v Commonwealth (1987) 163 CLR 54
Federal Commissioner of Taxation v McCabe (1990) 26 FCR 431
Briginshaw v Bringinshaw (1938) 60 CLR 336
Neat Holdings Pty Limited v Karajan Holdings Pty Limited (1992) 110 ALR 449IAN HAROLD BYERS v CIVIL AVIATION SAFETY AUTHORITY
WAD 199 of 2005NICHOLSON J
6 DECEMBER 2005
PERTH
IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
WAD 199 OF 2005
ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL
BETWEEN:
IAN HAROLD BYERS
APPLICANTAND:
CIVIL AVIATION SAFETY AUTHORITY
RESPONDENTJUDGE:
NICHOLSON J
DATE OF ORDER:
6 DECEMBER 2005
WHERE MADE:
PERTH
THE COURT ORDERS THAT:
1.The appeal from the Administrative Appeals Tribunal pursuant to s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) be dismissed.
2.The applicant pay the respondent’s costs of the appeal.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
WAD 199 OF 2005
ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL
BETWEEN:
IAN HAROLD BYERS
APPLICANTAND:
CIVIL AVIATION SAFETY AUTHORITY
RESPONDENT
JUDGE:
NICHOLSON J
DATE:
6 DECEMBER 2005
PLACE:
PERTH
REASONS FOR JUDGMENT
This is an appeal from a decision of the Administrative Appeals Tribunal (‘the Tribunal’) constituted by a Deputy President (Associate Professor SD Hotop) and a member (Air Marshal IB Gration) given on 12 July 2005. In its decision the Tribunal affirmed a decision of a delegate of the respondent cancelling the applicant’s Private Pilot (Aeroplane) Licence (‘PPL’), Restricted Private Pilot (Aeroplane) Licence (‘RPPL’) and Student Pilot (Aeroplane) Licence (‘SPL’).
On 6 October 2005 the Acting Chief Justice, having regard to s 44(3)(b) of the Administrative Appeals Tribunal Act 1975 (Cth), determined that the appeal was appropriate for hearing by a single judge.
FACTUAL BACKGROUND
The factual background was adequately set out in the reasons of the Tribunal as follows.
‘…
4.The applicant was, at all materials times, the holder of PPL, RPPL and SPL (ARN 120194).
5.The SPL was issued to the applicant on 17 August 1972, the RPPL was issued to him on 21 December 1972, and the PPL was issued to him on 20 October 1975.
6.The PPL, RPPL and SPL issued to the applicant included, at all material times, an aircraft endorsement for aircraft described as “single piston engine aeroplanes”, thereby authorising him to operate a CT-4A aircraft.
7.The applicant is a Director of IHB Pty Ltd which owns a CT-4A aircraft registered as VH-AOF (“the aircraft”).
8.The aircraft was, at all material times, operated under a limited category certificate of airworthiness.
9.By reason of CASA Instrument No JKT 13/94, issued on 29 November 1994, the applicant was, at all material times, approved to conduct “low level aerobatics”.
10.The applicant did not, at any material time, hold a specific or general permission, issued by CASA, to conduct low flying operations.
11.On 31 July 1992 the applicant flew the aircraft from Nullarbor to Forrest, and from Forrest to Kalgoorlie, in the State of Western Australia (“the flight”).
12.By letter (undated) from an officer of CASA, the applicant was invited to show cause in writing why his PPL, RPPL and SPL should not be varied, suspended or cancelled on the grounds of certain specified contraventions of the Civil Aviation Act 1988 (Cth) (“the Act”) and the Civil Aviation Regulations 1988 (“the CAR”) which may have been committed by him by reason of the flight.
13.By letter dated 6 December 2002 the applicant’s solicitors responded to the abovementioned show cause notice.
14.Following further correspondence between CASA and the applicant’s solicitors, a delegate of CASA, by letter dated 4 April 2003, notified the applicant that he had decided to cancel the applicant’s PPL, RPPL and SPL (ARN 120194), with effect from that date.
15.On 16 April 2003 the applicant lodged with the Tribunal an application for review of the delegate’s decision of 4 April 2003.’
RELEVANT STATUTORY AND REGULATORY BACKGROUND
Section 20A of the Civil Aviation Act 1988 (Cth) (‘the Act’) provides:
‘(1)A person must not operate an aircraft being reckless as to whether the manner of operation could endanger the life of another person.
(2)A person must not operate an aircraft being reckless as to whether the manner of operation could endanger the person or property of another person.’
The relevant provisions of the Civil Aviation Regulations 1988 (‘CAR’) (as in force at all material times) are as follows:
‘157
(1)An aircraft must not fly over:
(a)any city, town, or populous area at a height lower than 1,000 feet; or
(b)any other area at a height lower than 500 feet.
Penalty: 50 penalty units
(3)A height specified in subregulation (1) is the height above the highest point of the terrain, and any object on it, within a radius of:
(c)in the case of an aircraft other than a helicopter – 600 metres; or
(d)in the case of a helicopter – 300 metres;
from a point on the terrain vertically below the aircraft.
(3A) …
(4) Subregulation (1) doses not apply if:
(a)through stress of weather or any other unavoidable cause it is essential that a lower height be maintained; or
(b)the aircraft is engaged in private operations or aerial work operations, being operations that require low flying, and the owner or operator of the aircraft has received from CASA either a general permit for all flights or a specific permit for the particular flight to be made at a lower height while engaged in such operations; or
(c)the pilot of the aircraft is engaged in flying training and flies over a part of a flying training area in respect of which low flying is authorised by CASA under subregulation 141(1);or
(d)the pilot of the aircraft is engaged in a baulked approached procedure, or the practice of such procedure under the supervision of a flight instructor or a check pilot; or
(e)the aircraft is flying in the course of actually taking-off or landing at an aerodrome; or
(f)…
(g)…
(h)…’
‘166
(1)The pilot in command of an aircraft which is being operated on or in the vicinity of an aerodrome shall:
…
(g)after take-off, not alter heading from the take-off heading at a height less than 500 feet above the terrain unless air traffic control directs the alteration or unless the alteration is necessary due to the terrain.
…’
‘269
(1)Subject to this regulation, CASA may, by notice in writing served on the holder of a licence or certificate or an authority, vary, suspend or cancel the licence, certificate or an authority where CASA is satisfied that one or more of the following grounds exists, namely:
(a)that the holder of the licence, certificate or authority has contravened, a provision of the Act or these regulations, including these regulations as in force by virtue of a law of a State;
(b)…
(c)that the holder of the licence, certificate or authority has failed on his or her duty with respect to any matter affecting the safe navigation or operation of an aircraft;
(d)that the holder of the licence, certificate or authority is not a fit and proper person to have the responsibilities and exercise and perform the functions and duties of a holder of such a licence or certificate or an authority; or
(e) …’
TRIBUNAL’S DECISION
The respondent’s submissions appropriately summarise the findings of the Tribunal as follows:
‘(a)in relation to the Applicant’s take-off from Nullarbor, it was not satisfied that the Applicant had operated the aircraft recklessly in contravention of s 20A of the CA Act.
(b)in relation to the Applicant’s flight from Nullarbor to Forrest, it was satisfied that the Applicant had flown the aircraft at heights below 500 feet above ground level (AGL) in contravention of CAR 157(1)(b) but was not satisfied that the manner of operation of the aircraft on that leg gave rise to a contravention of s 20A of the CA Act;
(c)in relation to the Applicant’s flight from Forrest to Kalgoorlie, it was satisfied that the Applicant had flown the aircraft at heights below 500 feet AGL in contravention of CAR 157(1)(b) and was also satisfied that the Applicant had flown the aircraft in a westerly direction at a height of 100-200 feet AGL directly towards, and then alongside, a freight train travelling in an easterly direction and that the operation of the aircraft in that manner, on that leg, gave rise to a contravention of s 20A of the CA Act;
(d)the grounds prescribed by CAR 269(1)(a), (c) & (d) had been made out.’
TRIBUNAL’S REASONING
The ultimate decision of the Tribunal, being the decision to affirm the decision under review and to cancel the aforementioned licences of the applicant, was expressed in the following terms:
‘127. Having regard to:
·in particular, the abovementioned contravention by the applicant of s 20A of the Act, and also the abovementioned contraventions by him of CAR 157(1)(b), as found by the Tribunal;
·the failures by the applicant in his duty with respect to the safe operation of the aircraft involved in the abovementioned contraventions of the Act and the CAR; and
·the Tribunal’s finding that the applicant, accordingly, is not a fit and proper person to have the responsibilities, and exercise and perform the functions and duties, of a holder of a PPL, RPPL and SPL;
the Tribunal concludes that the correct or preferable decision in this matter is that the applicant’s PPL, RPPL and SPL (ARN 120194) should be cancelled.’
It will be observed that there were three limbs to the Tribunal’s reasoning in reaching its decision in favour of cancellation.
In relation to the first limb – that based on CAR 269(1)(a) – the Tribunal’s reasoning was as follows:
‘120. The Tribunal has found that:
·the applicant contravened s 20A of the Act when flying the aircraft during its flight from Forrest to Kalgoorlie on 31 July 2002;
·the applicant contravened CAR 157(1)(b) when flying the aircraft during its flight from Nullarbor to Forrest on 31 July 2002;
·the applicant contravened CAR 157(1)(b) when flying the aircraft during its flight from Forrest to Kalgoorlie on 31 July 2002.
Accordingly, the Tribunal finds that the ground specified in para (a) of CAR 269(1) is made out in this case.’
In relation to the second limb – that based on CAR269(1)(c) – the Tribunal’s reasoning read:
‘121.It necessarily follows from the Tribunal’s finding that the applicant contravened s 20A of the Act when flying the aircraft during its flight from Forrest to Kalgoorlie on 31 July 2002 that the applicant thereby also failed in his duty with respect to the safe operation of the aircraft, and the Tribunal so finds.
122.The Tribunal is also satisfied, having regard to the evidence of Mr Robinson relating to the hazards of low flying (see paragraphs 77 and 78 above), that, by deliberately flying the aircraft at a height below 500 feet above ground level, without good reason, for substantial periods during its flight from Nullarbor to Forrest and from Forrest to Kalgoorlie, in contravention of CAR 157(1)(b), the applicant failed in his general duty with respect to the safe operation of the aircraft, and the Tribunal so finds. Furthermore, as regards the flight from Forrest to Kalgoorlie, the Tribunal has already indicated that it accepts Ms Scott’s evidence in relation to the applicant’s intended “buzzing” of a train and his decision to “abort” when, approaching the train at low height, he realised it was stationary (see paragraph 116 above). In the Tribunal’s opinion, the applicant’s forming the intention to “buzz” that train, and his flying the aircraft at low height towards that train before deciding to “abort” the intended “buzzing” manoeuvre, also involved a clear breach by him of his duty with respect to the safe operation of the aircraft, and the Tribunal so finds.
123.Accordingly, the Tribunal finds that the ground specified in para (c) of CAR 269(1) is also made out in this case.’
On the third limb – that based on CAR269(1)(d) - the Tribunal’s reasoning, based on application of Re Repacholi v Civil Aviation Safety Authority (2003) 75 ALD 312 at 314, was:
‘125.In the Tribunal’s opinion the matters referred to paragraphs 121 and 122 above (and more fully discussed in preceding paragraphs) – especially the Tribunal’s finding that the applicant contravened s 20A of the Act in relation to the moving train incident, and the applicant’s conduct in relation to his intended “buzzing” of the stationary train – demonstrate that he is not a fit and proper person to have the responsibilities, and exercise and perform the functions and duties, of a holder of a PPL, RPPL and SPL.
126.Accordingly, the Tribunal finds that the ground specified in para (d) of CAR 269(1) is also made out in this case.’
So far as the breach of s 20A of the Act was concerned the Tribunal stated in [106] that this centred on the respondent’s contentions that the applicant flew the aircraft close to telecommunication towers, a stationary train and a moving train in the course of the flight from Forrest to Kalgoorlie on 31 July 2002. In respect of the contentions concerning the moving train, the respondent relied on the evidence of Ms Scott who flew with the applicant and also of Mr Free and Mr Jeakes, the drivers of the alleged moving train.
The Tribunal was conscious of several inconsistencies in the evidence before it. It said:
‘108.… These inconsistencies relate to the time and location of the alleged incident and to the physical aspects of the alleged incident itself. They may be summarised as follows:
·Time – Ms Scott said that she was not then taking note of the time but that her “guess” was that it occurred about 1 hour 20 minutes after departing Forrest, and that it would have occurred between 1 hour 5 minutes and 1 hour 50 minutes after departing Forrest (see paragraph 57 above); Mr Free and Mr Jeakes both stated that it occurred at about 1.00pm (see paragraphs 63, 67 and 84 above);
·Location – Mr Free stated that it occurred between Wilban and Nurina (where the “Indian Pacific” passenger train was waiting in a crossing loop for his train to pass); Mr Jeakes stated that it occurred while the train was travelling towards Wilban (that is, to the west of Wilban) (see paragraphs 67 and 84 above);
·Physical aspects – Ms Scott said that the applicant veered to the right side (that is, north) of the train at a height of approximately 50-100 feet above ground level (see paragraphs 41, 50 and 59 above); Mr Free said that the aeroplane veered to the south of the train and flew on the south side of the train at a height of about 100 feet above ground level (see paragraphs 63, 66 and 68 above); Mr Jeakes estimated that the aeroplane was flying at 100-200 feet above ground level at the time (see paragraph 84 above).’
In the relevantly critical paragraphs of its reasons, the Tribunal then continued:
‘110. The Tribunal has no reason to doubt the credibility of Mr Free and Mr Jeakes and, on the basis of their evidence, the Tribunal accepts that an incident, involving their train being “buzzed” by an aeroplane in the early afternoon of 31 July 2002 when the train was at a location west of Forrest and travelling in an easterly direction, did occur.
111. There is also some doubt as to the precise time of departure of the aircraft from Forrest on 31 July 2002 but, given that the refuelling of the aircraft was completed at 12.50pm (Exhibit A3) and allowing for some extra time on the ground, the Tribunal is reasonably satisfied that the time of departure of the aircraft from Forrest was approximately 1.00pm or very shortly thereafter.
112. Given that the aircraft departed Forrest at approximately 1.00pm on 31 July 2002 and then proceeded to fly in a westerly direction following the railway line to Kalgoorlie, and given the abovementioned evidence of Mr Free and Mr Jeakes regarding their train being “buzzed” by an aeroplane matching the description of the aircraft in the early afternoon of 31 July 2002 at a location west of Forrest, the Tribunal is reasonably satisfied that the aeroplane involved in that incident was the aircraft. In this connection, the Tribunal also accepts the evidence of Ms Scott that the applicant “buzzed” a moving train while flying the aircraft after departing Forrest in the afternoon of 31 July 2002. The Tribunal has no reason to doubt her evidence that that incident occurred, and notes that her evidence is broadly consistent with that of Mr Free and Mr Jeakes regarding the occurrence (if not the details) of that incident. Moreover, there was no evidence before the Tribunal to suggest that any other aeroplane matching the description given by Mr Free and Mr Jeakes was in, or anywhere near, the vicinity of that incident in the afternoon of 31 July 2002, and the Tribunal is prepared to infer that that was, at the very least, highly unlikely. As regards the applicant’s evidence that, although he recalled seeing a stationary train on a side loop, he did not recall seeing a moving train, during the flight from Forrest to Kalgoorlie (see paragraphs 27 and 33 above), the Tribunal regards that evidence as unsatisfactory because there can be no doubt – having regard to the whole of the evidence before the Tribunal – that the aircraft flew over the train, which was being driven by Mr Free and Mr Jeakes, at some point during its flight between Forrest and Kalgoorlie on 31 July 2002.’
Then followed the Tribunal’s central finding which is the focus of the discontent of the applicant:
‘113. Accordingly, the Tribunal is reasonably satisfied, and finds, that, in the early afternoon (probably between 1.00pm and 2.30pm) on 31 July 2002, the applicant flew the aircraft in a westerly direction at a height of 100-200 feet above ground level directly towards, and then alongside, a freight train travelling in an easterly direction, in the course of a flight in the aircraft from Forrest to Kalgoorlie.’
In relation to the alleged breach of s 20A of the Act, the Tribunal concluded as follows:
‘114. The Tribunal is, furthermore, of the opinion that the applicant, when operating the aircraft at the time of the “train buzzing” incident referred to in paragraph 107 – 113 above, was “being reckless as to whether the manner of operation could endanger the life of another person” or “the person … of another person”, within the meaning of s 20A of the Act, in that he operated the aircraft in such a manner as to create a substantial risk of endangering the life or the person of other persons, namely, Ms Scott and the train drivers, Mr Free and Mr Jeakes, and he did so either heedless of the existence of such risk or in deliberate disregard of such risk.
115. Accordingly, the Tribunal finds that the applicant, when operating the aircraft at the time of the “train buzzing” incident referred to in paragraphs 107 – 113 above, contravened s 20A of the Act.’
GROUNDS OF APPEAL
The notice of appeal relies on three grounds, namely:
‘(a)The Tribunal could not have been satisfied as a matter of law given the seriousness of the allegation and the inconsistency of evidence that the Applicant had breached section 20A of the Civil Aviation Act 1988.
(b)The Tribunal must have taken into account irrelevant considerations being the inconsistent evidence or failed to take into account relevant considerations being the consistent evidence in finding the Applicant breached section 20A of the Civil Aviation Act 1988.
(c)The making of the Decision was an improper exercise of power by the Tribunal failing to take into account a relevant consideration, namely the documentary evidence regarding the time and place of the incident found to constitute a breach of section 20A of the Civil Aviation Act 1988.’
Although the grounds are partly formulated with reference to recognised errors of law, from the manner in which the grounds are pressed, it is apparent that the applicant seeks to challenge the merits of the decision. This is not a function of the jurisdiction of this Court on appeal from the Tribunal. The appeal is brought pursuant to s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) and is limited to a question or questions of law. The ‘appeal’ is not an appeal in the strict sense in that it lies within the original jurisdiction of the Court: s 19(2) of the Federal Court of Australia Act 1976 (Cth). That jurisdiction does not extend to reviewing findings of fact made by the Tribunal unless necessary to resolve a question of law. The applicant accepts that there is no error of law simply by the making of a wrong finding of fact: Waterford v Commonwealth (1987) 163 CLR 54 at 77 per Brennan J. Nevertheless the applicant contends that the boundaries between a question of fact and a question of law is a grey area.
I agree with the submission for the respondent that the manner in which the grounds are formulated leaves unclear what precise questions of law are at issue.
To meet these concerns of the respondent, the oral argument for the applicant commenced by stating that ground (a) on the appeal was advanced on the basis that the Tribunal had acted unreasonably, being so unreasonable as to satisfy the Wednesbury unreasonableness test as stated in Federal Commissioner of Taxation v McCabe (1990) 26 FCR 431. The contention is that is the position here.
As examination of the developed submissions will show, this was but another way of enticing the Court into merits review.
FUTILITY
There is a further factor which counts against the applicant and which was put to him during the hearing. The decision under review is the decision of cancellation. The reasons for that as expressed in [127] of the Tribunal’s reasons are threefold. The applicant does not seek to appeal against the findings of contraventions in respect of the CAR. The consequence is that there are arguably other grounds on which the Tribunal’s decision could be sustained even if the applicant were properly able to make out grounds of appeal in respect of the offence under the Act.
That matter was not fully argued. However, it points to a difficulty facing the applicant even in the event that the appeal against the finding under the Act was successful.
APPLICANT’S CONTENTIONS
The applicant directs the grounds of appeal solely against the factual findings of the Tribunal in relation to the ‘train buzzing’ incident upon which the Tribunal based its satisfaction that the applicant had contravened s 20A of the Act, and that, of course, was a step in the process of finding the ground prescribed by CAR269(1)(a) had been made out.
The sum of the submission for the applicant was that the evidence of the applicant and Ms Scott were consistent with and could sustain the finding of the Tribunal at [113] as referred to above. However, the submission then continued that such a finding was inconsistent with the evidence of the train drivers, Messrs Free and Jeakes and the evidence which one of them had given of an entry in a log book was not in evidence before the Tribunal. In particular, the Court was directed to the evidence of a delivery receipt in respect of the fuel for the applicant’s aircraft on the day in question showing that the fuelling had finished at 12.50 pm. That was part of the evidence consistent with the Tribunal’s finding.
The argument continued to the effect that as the evidence of the train drivers Messrs Free and Jeakes had not been challenged, a position had arisen where the finding of the Tribunal was so unreasonable that no reasonable person could have made it. This was not only in relation to the issue of time but also it was said consequently to the issue of place.
Further, it was contended that the Tribunal had taken into account an irrelevant matter in [112] when it had said that there was no evidence to suggest that any other aeroplane matching the description given by Messrs Free and Jeakes was in, or anywhere near, the vicinity of the incident in the afternoon of 31 July 2002 and the Tribunal inferred that at the very least that was highly unlikely. The applicant’s submission was that therefore the Tribunal’s finding was not based on logically probative evidence.
REASONING
In my opinion, the submissions for the applicant are a case of an invitation to the Court to embark on a merits enquiry. The written and oral argument continues the vice inherent in the grounds of appeal of seeking to have the Court rework the evidence on which the Tribunal has made findings.
Furthermore, the applicant accepts that there is evidence which can sustain the critical finding of the Tribunal in [113].
The applicant does not dispute that Messrs Free and Jeakes were ‘buzzed’ in the train which they were driving or that a pilot who engaged in such an action would be reckless.
The evidence was such that there was no doubt that the applicant was flying between 1.00 to 2.30 pm, Western Standard Time. Further, that he was flying in a westerly direction above the train line. Also, that he was flying low, below 500 feet.
Critically, the Tribunal accepted the evidence of Ms Scott who was flying with the applicant.
There is no error of law by the Tribunal in accepting part but not all of the evidence of Messrs Free and Jeakes: cf Abalos v Australian Postal Commission (1970) 171 CLR 167 at 178.
Nor is this a case where the Tribunal failed to take heed of the inconsistencies in the evidence and to weigh them. It clearly drew attention to them in [108]. The Tribunal found that Ms Scott’s evidence was ‘broadly consistent’ with that of Messrs Free and Jeakes: at [112]. The Tribunal had a foundation from which to infer which train was ‘buzzed’: at [112]. The circumstances were such that there could be no doubt the applicant must have seen the moving train because he was deliberately flying where he could follow the rail track. It was open to the Tribunal in those circumstances to not accept the applicant’s evidence of denial of ‘buzzing’.
Contrary to the submissions of the applicant, consideration of the absence of evidence of other aircraft in the area was not an irrelevant consideration.
The log book to which reference was made was not one which was before the Tribunal in any event.
There were also consistencies in the evidence which the Tribunal identified and was entitled to rely upon. There was evidence to support the finding that the applicant had turned on the aircraft lights; the aircraft was flying at the height as found and the description of the aircraft given by the train drivers was consistent with it.
Essentially, also, the Tribunal was entitled to reach its conclusion based on the evidence of Ms Scott.
I agree with the submission for the respondent that the reasoning of the Tribunal was unexceptional and in no way can be found to be unreasonable in a Wednesbury sense.
The grounds of appeal and the argument as pressed are ones which seek to have this Court proceed to rework the evidence in the light of an assumption by the applicant that the evidence of Messrs Free and Jeakes was wrongly rejected by the Tribunal.
The applicant contended that the Tribunal was obliged to proceed with some caution in circumstances where there was a serious allegation against the applicant so that the degree of satisfaction of the Tribunal was important: cf Briginshaw v Bringinshaw (1938) 60 CLR 336 and Neat Holdings Pty Limited v Karajan Holdings Pty Limited (1992) 110 ALR 449 at 170-171. In my opinion the Tribunal most carefully and thoroughly considered the evidence before it and in no way acted by making findings from the evidence in a way which did not take into account the serious nature of the allegations against the applicant. The Tribunal methodically worked its way through all the evidence and did not make any errors of law.
CONCLUSION
For these reasons I consider that the ‘appeal’ must be dismissed.
I certify that the preceding forty-two (42) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Nicholson. Associate:
Dated: 6 December 2005
Counsel for the Applicant: Mr P W Lithgow Solicitors for the Applicant: Grundy Maitland & Co Counsel for the Respondent: Mr I Harvey Solicitors for the Respondent: Civil Aviation Safety Authority Date of Hearing: 4 November 2005 Date of Judgment: 6 December 2005
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