Civil Aviation Safety Authority v Central Aviation Pty Limited [2009] FCAFC 137
ADMINISTRATIVE LAW – Administrative Appeals Tribunal – failure to provide adequate reasons – primary judge set aside reasons – exercise of discretion – whether reasons or decision should be set aside – power of Tribunal to vary decision or orders – power did not extend to vary reasons provided for existing decision
CIVIL AVIATION – source of power in Civil Aviation Regulations to vary conditions of Certificate of Approval
CIVIL AVIATION SAFETY AUTHORITY v CENTRAL AVIATION PTY LIMITED
NSD 160 of 2009
BENNETT, FLICK AND MCKERRACHER JJ 2 OCTOBER 2009 SYDNEY
IN THE FEDERAL COURT OF AUSTRALIA
NSW DISTRICT REGISTRY
GENERAL DIVISION
NSD 160 of 2009
ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA
BETWEEN:
CIVIL AVIATION SAFETY AUTHORITY Appellant
AND:
CENTRAL AVIATION PTY LIMITED Respondent
JUDGES:
BENNETT, FLICK AND MCKERRACHER JJ
DATE OF ORDER:
2 OCTOBER 2009
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.The appeal be allowed.
2.The decision of the Tribunal be set aside.
3.The matter be remitted to the Administrative Appeals Tribunal for determination in accordance with law.
4.There be no order as to the costs of the appeal.
Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using eSearch on the Court’s website.
IN THE FEDERAL COURT OF AUSTRALIA
NSW DISTRICT REGISTRY
GENERAL DIVISION
NSD 160 of 2009
ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA
BETWEEN:
CIVIL AVIATION SAFETY AUTHORITY Appellant
AND:
CENTRAL AVIATION PTY LIMITED Respondent
JUDGES:
BENNETT, FLICK AND MCKERRACHER JJ
DATE:
2 OCTOBER 2009
PLACE:
SYDNEY
REASONS FOR JUDGMENT
THE COURT:
On 6 July 2007 the Civil Aviation Safety…
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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AGLC
Civil Aviation Safety Authority v Central Aviation Pty Ltd [2009] FCAFC 137
Case
[2009] FCAFC 137
Decision Date
CaseChat Overview and Summary
This appeal concerns a dispute between the Civil Aviation Safety Authority and Central Aviation Pty Ltd, where the primary issue revolved around the interpretation of certain regulations. The case was initially heard and decided by the Administrative Appeals Tribunal, which was then subject to a judicial review by a single judge of the Federal Court of Australia. The primary judge's decisions on specific legal questions were challenged in the appeal, and the appeal itself raises questions about the scope of appellate jurisdiction and the nature of the Tribunal's authority in imposing conditions.
The central legal issues that the court had to address were the correctness of the primary judge's interpretation of the regulations, and whether the Tribunal had the authority to impose conditions. The appeal also considered whether the answers provided by the primary judge to the questions of law were indeed part of the formal order of the court, thus making them appealable. This aspect required an examination of the Federal Court of Australia Act 1976 and the Constitution to determine if the primary judge's answers could be considered as judgments, decrees, or orders.
The court found that while the primary judge did not err in his interpretation of the regulations, the remittal order was flawed. The court held that the answers provided by the primary judge were part of the formal order and, therefore, were appealable. The court concluded that the appeal against the remittal order was valid and should be allowed, leading to the setting aside of the Tribunal's decision. The matter was to be remitted to the Administrative Appeals Tribunal for a fresh determination in accordance with the law.
The final orders of the court were that the appeal be allowed, the decision of the Tribunal be set aside, and the matter be remitted to the Administrative Appeals Tribunal for redetermination. The court made no order as to the costs of the appeal.
Orders
Orders of the court
1. The appeal be allowed.
2. The decision of the Tribunal be set aside.
3. The matter be remitted to the Administrative Appeals Tribunal for determination in accordance with law.
4. There be no order as to the costs of the appeal.
Note:
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
BENNETT, FLICK AND MCKERRACHER JJ
For the reasons which follow, the primary judge did not err in his construction of the Regulations. However, the appeal against the remittal order should be allowed, the decision of the Tribunal should be set aside and the matter remitted to the Tribunal. IS THE DECISION OF THE PRIMARY JUDGE SUSCEPTIBLE OF APPEAL? A question arises at the outset as to whether the answers provided by the primary judge to the ‘questions of law’ are susceptible of appeal. The relevant appellate jurisdiction of this Court is that conferred by s 24(1)(a) of the Federal Court of Australia Act 1976 (Cth) (‘the 1976 Act’), namely the ‘jurisdiction to hear and determine appeals from judgments of the Court constituted by a single Judge’. A question arises as to whether an appeal lies against the answer provided by the primary judge with respect to the ability of the Tribunal to impose conditions. If the answer is part of the ‘judgment’ of the Court, an appeal lies. It may be that a central part of the reasoning is so vital to the formal orders that it is ‘embedded’ in the judgment or ‘implicit’ in it – see Australian Telecommunications Commission v Colpitts (1986) 12 FCR 395 (at 402), per Toohey J with whom Fisher J agreed and recently, the Full Court in Australian Competition and Consumer Commission v Telstra Corporation Ltd (2009) 176 FCR 203 (Ryan, Jacobson and Foster JJ) at [23]-[24] and at [64]-[66]. Section 4 of the 1976 Act defines a ‘judgment’ as ‘a judgment, decree or order, whether final or interlocutory, or a sentence’. The term ‘judgment’ as it is used in ss 4 and 24 of the 1976 Act has the same meaning as that used in s 73 of the Constitution and refers to the formal order of a Court: Ah Toy v Registrar of Companies (1985) 10 FCR 280 at 285. Toohey, Morling and Wilcox JJ there observed:... [T]he starting point for a consideration of the competency of this appeal must be … s 24 of the Federal Court of Australia Act 1976. Unless there is a “judgment, decree or order”, there is nothing against which an appeal may be brought. ... It is accepted that the expression “judgment, decree or order” bears the meaning which the words “all judgments, decrees, orders …” have in s 73 of the Constitution: Moller v Roy (1975) 132 CLR 622 per Barwick CJ at 625. In that case Mason J, speaking of s 46 of the Supreme Court Act (NT), said (at 639):“However, I see no alternative but to give the word ‘judgment’ as it appears in s 46 its accepted legal meaning, that is, the formal order made by a court which disposes of, or deals with, the proceeding then before it: see R v Ireland (1970) 126 CLR 321 at 330; Lake v Lake [1955] 366 at 343–344. Any other view would, I think, disregard the similarity between the provisions of s 46 and those of s 35 of the Judiciary Act 1903 (Cth) which are so obviously based on the provisions of s 73 of the Constitution where the word ‘judgments’ is used in the same sense.” In the present proceeding the form of the ‘orders’ as made by the primary judge was (relevantly) to ‘order’ that ‘[t]he questions be answered as follows: …’. It follows that an appeal lies against the order.