Civil Aviation Safety Authority v Marsh

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FEDERAL COURT OF AUSTRALIA

Civil Aviation Safety Authority v Marsh [2014] FCA 1253

Citation: Civil Aviation Safety Authority v Marsh [2014] FCA 1253
Parties: CIVIL AVIATION SAFETY AUTHORITY v KYLE MARSH
File number: QUD 719 of 2013
Judge: COLLIER J
Date of judgment: 21 November 2014
Catchwords:

ADMINISTRATIVE LAW – appeal from decision of Administrative Appeals Tribunal – s 44 Administrative Appeals Tribunal Act 1975 (Cth) – flight theory examination toward pilot licence conducted by Civil Aviation Safety Authority (“CASA”) – respondent undertook and passed examination – respondent received and provided to another person coded answers to examination questions designed to look like material permitted in examination – Tribunal found respondent did not personally use coded answers in examination – Tribunal set aside decision of CASA delegate finding respondent contravened reg 298A(1)(c)(iii) Civil Aviation Regulations 1998 (Cth) – Tribunal set aside CASA delegate finding that respondent not a fit and proper person to hold licence – reg 269(1)(d) – whether Tribunal erred in failing to find respondent contravened reg 298A(1)(c)(iii) – whether Tribunal erred in failing to find respondent contravened reg 298A(1)(e) – whether Tribunal erred in failing to find respondent not a fit and proper person

STATUTORY INTERPRETATION – whether “the examination” in reg 298A(1)(c)(iii) Civil Aviation Regulations 1998 (Cth) refers only to sitting of examination undertaken by alleged contravener – approach to interpreting legislation – Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 – s 15AA Acts Interpretation Act 1901 (Cth)
Legislation: Administrative Appeals Tribunal Act 1975 (Cth) s 44
Civil Aviation Act 1988 (Cth) s 9A
Legislative Instruments Act 2003 (Cth) s 13
Civil Aviation Regulations 1988 (Cth) regs 269(1), 269(1)(c), 269(1)(d), 298A(1), 298A(1)(a), 298A(b), 298A(1)(c), 298A(1)(c)(i), 298A(1)(c)(ii), 298A(1)(c)(iii), 298A(1)(d), 298A(1)(e), 298A(1)(f), 298A(1)(f)(iii), 298A(4), 298A(8)
Cases cited: Air Link Pty Ltd v Paterson (2005) 223 CLR 283
Austin v The Commonwealth of Australia (2003) 215 CLR 185
Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321
Boral Besser Masonry Ltd v Australian Competition and Consumer Commissioner (2003) 215 CLR 374
Commonwealth v Baume (1905) 2 CLR 405
Confidential v Civil Aviation Safety Authority [2013] AATA 927
Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297
Craig Williamson Pty Ltd v Barrowcliff [1915] VLR 450
Foots v Southern Cross Mine Management Pty Ltd (2007) 234 CLR 52
Jagroop v Minister for Immigration and Border Protection [2014] FCAFC 123
K & S Lake City Freighters Pty Ltd v Gordon & Gotch Ltd (1985) 157 CLR 309
Minister Administering the Crown Lands Act v NSW Aboriginal Land Council (2008) 237 CLR 285
Monis v R (2013) 249 CLR 92
Oshlack v Richmond River Council (1998) 193 CLR 72
Plaintiff S4-2014 v Minister for Immigration and Border Protection [2014] HCA 34
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355
Re Bolton; Ex parte Beane (1987) 162 CLR 514
Repatriation Commission v Richmond [2014] FCAFC 124
Taylor v Department of Transport [1978] AATA 64
Trust Co of Australia Ltd…
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Details
Case
[2014] FCA 1253
Decision Date

CaseChat Overview and Summary

The Civil Aviation Safety Authority (CASA) appealed against a decision of the Administrative Appeals Tribunal (AAT) that had set aside CASA's decision to cancel a commercial pilot's licence held by Mr. Marsh. The AAT had found that Mr. Marsh had not contravened regulation 298A(1)(c)(iii) of the Civil Aviation Regulations 1998 (Cth) by not using coded answers to the flight planning theory examination questions in the examination, and that he was a fit and proper person to hold a licence. The primary legal issues were whether the AAT erred in not finding that Mr. Marsh contravened regulation 298A(1)(c)(iii) and regulation 298A(1)(e), and whether the AAT erred in not finding that he was not a fit and proper person to hold a licence. The court found that the AAT had erred in its interpretation of regulation 298A(1)(c)(iii) and that it should have made the findings identified by CASA in grounds 2, 3 and 4 of the notice of appeal. The court held that the AAT ought to have found that Mr. Marsh contravened regulation 298A(1)(c)(iii) and regulation 298A(1)(e) by providing coded answers to another person. The court also held that the AAT ought to have found that Mr. Marsh was not a fit and proper person to hold a licence. The court set aside the AAT's decision and remitted the matter to the AAT for rehearing in accordance with the law. The court did not make an order as to costs as Mr. Marsh had not opposed the appeal.

Orders

Orders of the court

1. The decision of the Administrative Appeals Tribunal (“Tribunal”) to set aside the reviewable decision made under regulation 298A(4) of the Civil Aviation Regulations 1988 (Cth) be set aside and remitted to the Tribunal for rehearing in accordance with the law.

2. There be no order as to costs.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

The background to this proceeding is set out in detail in the decision of the Tribunal. It is convenient to draw key facts from that decision.Background Mr Marsh is a commercial pilot who sought to obtain an Air Transport Pilot Licence (“ATPL”). This is the highest grade of pilot’s licence available. On 12 October 2011 he undertook and passed a flight planning theory examination conducted by CASA. The flight planning segment of the theory part of the ATPL examination is designed to test a candidate’s understanding of flight planning procedures including fuel requirements, altitude capability, performance limitations, and calculations of point of no return. A candidate is required to answer seventeen questions, each question representing an area of the syllabus. The candidate answers the questions online. Questions asked of each candidate are designed to test flight planning skills and knowledge of the individual candidate, and are drawn randomly from a bank of 105 possible questions in the CASA examination database. Examination questions have multiple choice answers. The examination is timed, candidates are permitted a certain period of time to finish the examination, and following completion the computer checks the answers. Candidates are permitted to take maps, navigation equipment and the Performance and Operating Handbook for a Boeing 727 (“Boeing 727 Handbook”) aircraft into the examination room. The Tribunal found that by at least 2011 there were numerous documents circulating widely amongst students providing model answers to many of the possible 105 questions. The Tribunal member observed that this was not surprising given that CASA had used the same 105 questions for almost 20 years. One document which was circulating with model answers was four pages of what the Tribunal found to be coded answers to certain examination questions. The Tribunal found that this document was illicitly incorporated into a version of the Boeing 727 Handbook. The Tribunal noted that:The borders of each of the four pages are exact reproductions of the borders of pages from that Handbook but the text inside the borders reproduces the coded answers. The general format of the inserted part consists of a repetition of key factual data from a question with the answer at the end. The obvious implication was that a cheating candidate could take the version of the Boeing 727 Handbook incorporating the model answers into an examination and clandestinely reference the four pages to assist in answering examination questions if those questions were posed. Mr Gavin Secombe, the Cyber Exams Administrator for CASA, gave evidence before the Tribunal that answers to 33 of the possible 105 questions in the examination appeared on these four pages. CASA became aware of the use of these pages in September 2012 when a whistle-blower forwarded these pages, describing the pages as “cheat sheets”. The Tribunal member noted that use of those four pages in an examination by a candidate was plainly gross and flagrant cheating.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Grounds of appeal 5, 6, and 7 are not substantiated.Conclusion In my view the learned Tribunal member adopted an incorrect approach in his interpretation of reg 298A(1)(c)(iii). Further, the Tribunal ought to have made the findings identified by the applicant in grounds 2, 3 and 4 of the notice of appeal. Although the Tribunal made a finding on the facts that Mr Marsh was a fit and proper person within the meaning of reg 269(1)(d), I consider it necessary that this decision be revisited in light of this judgment. As the underlying facts were fully explored by the Tribunal it may be that the decision of the Tribunal remains the same concerning Mr Marsh’s fitness and propriety, however that is an issue for the Tribunal. The appropriate order is to remit the matter to the Tribunal for determination according to law. CASA seeks costs of the appeal. Although as a general proposition costs follow the event, in this case Mr Marsh has made no appearance and has not opposed the appeal. It was for the applicant to substantiate its case, and while it has done so in part, it was in the face of a Tribunal decision in Mr Marsh’s favour and without opposition in this Court from Mr Marsh. The better order in the circumstances is that there be no order as to costs.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.