Civil Aviation Safety Authority v Central Aviation Pty Ltd (No 2)

[2009] FCA 229

FEDERAL COURT OF AUSTRALIA

Civil Aviation Safety Authority v Central Aviation Pty Ltd (No 2)

[2009] FCA 229

CIVIL AVIATION SAFETY AUTHORITY v CENTRAL AVIATION PTY LTD

NSD 1025 of 2008

PERRAM J
13 MARCH 2009
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1025 of 2008

BETWEEN:	CIVIL AVIATION SAFETY AUTHORITY Applicant
AND:	CENTRAL AVIATION PTY LTD Respondent

JUDGE:	PERRAM J
DATE OF ORDER:	13 MARCH 2009
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The respondent pay the costs of the applicant on the appeal.

2.The respondent be granted a certificate certifying that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under the Federal Proceedings (Costs) Act 1981 (Cth) to the respondent in respect of:

(a)the costs incurred by the respondent in relation to the appeal; and

(b)any costs incurred by the applicant in relation to the appeal that have been, or are required to be, paid by the respondent to the applicant in pursuance of an order of the Court.

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
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1025 of 2008

BETWEEN:	CIVIL AVIATION SAFETY AUTHORITY Applicant
AND:	CENTRAL AVIATION PTY LTD Respondent

JUDGE:	PERRAM J
DATE:	13 MARCH 2009
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. On 6 February 2009 the applicant’s appeal to this Court was allowed: Civil Aviation Safety Authority v Central Aviation Pty Ltd [2009] FCA 49. I accepted the submission that the reasons proffered by the Administrative Appeals Tribunal (“the Tribunal”) were inadequate in the requisite sense. I set aside the statement of reasons issued by the Tribunal and directed it to provide reasons which were adequate. I declined the applicant’s invitation to set aside the whole of the Tribunal’s decision and to permit a fresh hearing of the matter before a differently constituted Tribunal. I also did not accept the applicant’s submission that the decision of the Tribunal revealed additional errors of law. Specifically I rejected the applicant’s submission that it was beyond the power of the Tribunal to impose certain conditions on the respondent’s licence.

2. The applicant had also contended that the Tribunal had taken into account irrelevant considerations and had asked itself the wrong question.  It was not possible to deal with those submissions because the reasons of the Tribunal were not sufficiently adequate to determine their correctness.

3. It will be seen, therefore, that the principal submission advanced by the applicant was accepted; that a legal argument advanced by it was rejected; and that the remaining issues could not be determined because of the inadequacy of the Tribunal’s reasons.

4. The respondent submits that the appropriate order is that the applicant pay its costs of the appeal.  I reject that submission.  The applicant was successful even if its triumph was not total.  Parts of the case were undecided because of the inability to assess the arguments in light of the quality of the reasons provided by the Tribunal.  Where the appeal only took one day and where the applicant succeeded in its primary argument I do not consider there to be special circumstances warranting a departure from the ordinary position that the successful party is entitled to its costs: Ruddock v Vadarlis (No 2) (2001) 115 FCR 229 at 234-235 [11] per Black CJ and French J. In any event, most of the debate before the Court was concerned with the adequacy of the Tribunal’s reasons which, as I have mentioned, was an issue upon which the applicant was successful.

5. In its written submissions the applicant submitted that the appropriate order was that costs should follow the event.  I agree.  The appropriate order is that the respondent pay the applicant’s costs of the appeal.

6. The inadequacy of the Tribunal’s reasons was, however, disconnected from any default on the part of the respondent. Section 6 of the Federal Proceedings (Costs) Act 1981 (Cth) provides:

   Costs certificates for respondents – Federal appeals

   (1)Subject to this Act, where a Federal appeal succeeds on a question of law, the court that heard the appeal may, on the application of a respondent to the appeal, grant to the respondent a costs certificate in respect of the appeal.

   (2)Subject to this Act, where a Federal appeal in relation to the amount of damages awarded by a court succeeds, the court that heard the appeal may, on the application of a respondent to the appeal, grant to the respondent a costs certificate in respect of the appeal.

   (3)The certificate that may be granted under subsection (1) or (2) by a court to a respondent to a Federal appeal is a certificate stating that, in the opinion of the court, it would be appropriate for the Attorney-General to authorize a payment under this Act to the respondent in respect of:

   (a)the costs incurred by the respondent in relation to the appeal; and

   (b)any costs incurred by an appellant in relation to the appeal that have been, or are required to be, paid by the respondent to the appellant in pursuance of an order of the court, not being costs to which a costs certificate granted under section 7 relates.

7. In this case the applicant succeeded on a question of law. The appeal was an appeal from the Tribunal and hence a “Federal appeal”: s 3. The power to issue the certificate is therefore enlivened. The discretion conferred by s 6 is apparently unfettered. It is not necessary to express a view about the precise circumstances in which that discretion should or should not be exercised. It suffices for present purposes to observe that the applicant has succeeded on a question of law and the matter generating that question of law was conduct by the Tribunal for which the respondent was not responsible. In such circumstances it will ordinarily be appropriate to grant a certificate. Subsection (3) provides both for a certificate in relation to the respondent’s costs and also in relation to the applicant’s costs for which the respondent may be liable. In this case both are appropriate.

I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Perram.

Associate:

Dated:        13 March 2009

Counsel for the Applicant:	Mr I Harvey
Solicitor for the Applicant:	Mr J Rule of the Civil Aviation Safety Authority
Counsel for the Respondent:	Mr J Anderson
Solicitors for the Respondent:	Goldrick Farrell Mullan

Date of Hearing:	22 October 2008
Date of Final Submissions:	20 February 2009
Date of Judgment:	13 March 2009