Coptercam Pty Limited and Civil Aviation Safety Authority

[2015] AATA 387

[2015] AATA 387

Division	GENERAL ADMINISTRATIVE DIVISION
File Number	2015/0814
Re	Coptercam Pty Limited
APPLICANT
And	Civil Aviation Safety Authority
RESPONDENT

DECISION

Tribunal	Senior Member R W Dunne
Date	28 April 2015
Date of written reasons	3 June 2015
Place	Adelaide

1. On 28 April 2015, the Tribunal in an oral Decision refused the application under s 29(7) of the Administrative Appeals Tribunal Act 1975 for an extension of time to lodge an application for review of the decision made by the respondent on or about 24 February 2014.

2.          On 12 May 2015, the Tribunal was requested by the applicant to provide written reasons for the Tribunal’s Decision. 

3.          The written reasons are attached.

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Senior Member R W Dunne

CATCHWORDS

CIVIL AVIATION – application for extension of time in which to lodge application for review – length of delay – whether acceptable explanation for delay – significant issue to be determined – prejudice to the respondent or other persons affected by decision – merits of the substantive application – balancing the various considerations – application for extension of time refused.

LEGISLATION

Administrative Appeals Tribunal Act 1975 (Cth), s 29(7), 29(8)

Civil Aviation Act 1988 (Cth), s 31

CASES

Hunter Valley Developments Pty Ltd v Cohen (1984) 7 ALD 315

Budd v Secretary, Department of Education, Employment and Workplace Relations [2008] FCA 1540

Kuljic v Secretary, Department of Social Security [1994] FCA 62

REASONS FOR DECISION

Senior Member R W Dunne

3 June 2015

INTRODUCTION

1. Coptercam Pty Ltd is the applicant in this matter.  It is engaged in the business of operating unmanned aerial vehicles (“UAV”).  The chief executive officer of the applicant is Mr Hai Tran.

2. On 24 April 2012, the applicant was certified by the respondent as an operator of UAVs and issued with a UAV operator’s certificate.  The applicant was subject to six conditions identified in the certificate.

3. Between 29 April 2013 and 24 February 2014, the respondent issued the applicant with further UAV operators’ certificates.

4. A dispute arose between the parties relating to a condition (“Condition 5”) to be imposed in the UAV operator’s certificate issued on 24 February 2014.

5. On 20 February 2015, the applicant applied to this Tribunal for review of the decision by the respondent to impose Condition 5 in the UAV operator’s certificate issued on 24 February 2014.

   LEGISLATION

6. The legislation that is relevant in this matter is contained in the Administrative Appeals Tribunal Act 1975 (Cth) (“AAT Act”) and the Civil Aviation Act 1988 (Cth) (“CA Act”)

7. The power of the Tribunal to extend the time for making an application for an extension of time is contained in s 29 of the AAT Act. Subsection 29(7) of the AAT Act provides:

   “The Tribunal may, upon application in writing by a person, extend the time for the making by that person of an application to the Tribunal for a review of a decision (including a decision made before the commencement of this section) if the Tribunal is satisfied that it is reasonable in all the circumstances to do so.”

8. Subsection 29(8) of the AAT Act then provides:

   “The time for making an application to the Tribunal for a review of a decision may be extended under subsection (7) although that time has expired.”

9. Section 31 of the CA Act allows for review of a reviewable decision.

10. Subsection 31(1) of the CA Act defines the term “reviewable decision” to relevantly mean:

    “(a)a refusal to grant or issue, or a cancellation, suspension or variation of, a certificate, permission, permit or licence granted or issued under this Act or the regulations; or

    (b) the imposition or variation of a condition, or the cancellation, suspension or variation of an authorisation, contained in such a certificate, permission, permit or licence; or”

11. Subsections 31(2), (3) and (4) of the CA Act then read:

    “(2)Application may be made to the Administrative Appeals Tribunal for review of a reviewable decision.

    (3)Where the person making a reviewable decision gives to the person whose interests are affected by the decision notice in writing of the decision, the notice shall include a statement to the effect that, subject to the Administrative Appeals Tribunal Act 1975, application may be made to the Administrative Appeals Tribunal, by or on behalf of any person whose interests are affected by the decision, for review of the decision.

    (4)A failure to comply with subsection (3) in relation to a decision does not affect the validity of the decision.”

12. Section 31 of the CA Act gives the applicant the right to apply to this Tribunal for a review of the decision by the respondent to impose Condition 5 in the applicant’s UAV operator’s certificate. Section 31 of the CA Act, read in conjunction with s 29 of the AAT Act, requires that an application for review must be made within 28 days of the applicant receiving the documents setting out the terms of the decision. The Tribunal may extend the time for the making of an application for review, although that time has expired.

    BACKGROUND

13. The UAV operator’s certificate issued to the applicant on 24 April 2012 was called “the First Certificate”.

14. On 29 April 2013, the respondent issued the applicant with a further UAV operator’s certificate (“the Second Certificate”).  The Second Certificate included the following condition as condition number 3:

    “The authorised UAV operated under this UOC must not be flown above 400 feet AGL or in any airspace designated by a controlling authority as controlled airspace or restricted airspace, unless the Certificate holder obtains an Area Approval under regulation Part 101:030 of CASR 1998.  This is in addition to the requirements of regulations Part 101:065 and Part 101.075 of CASR 1998.”

15. On or around 25 September 2013, the respondent issued the applicant with a further UAV operator’s certificate (the “Third Certificate”).  The Third Certificate included a condition that was the same as condition number 3 in the Second Certificate.

16. On 23 January 2014, the respondent advised the applicant by telephone that it proposed to make changes to the Third Certificate to allow the applicant to operate in controlled airspace and within three nautical miles of an aerodrome without the need for area approvals. 

17. On 24 January 2014, the applicant was informed that the respondent proposed to vary the current conditions in operators’ certificates as part of an industry wide process.  On that day, a draft of the proposed conditions was emailed to the applicant.  The proposed conditions did not include the condition set out in paragraph 14 above.

18. On or about 24 February 2014, the respondent issued the applicant with a further UAV operator’s certificate (the “Fourth Certificate”).  The Fourth Certificate included the following condition as condition 5:

    “The authorised UAV operated under this UOC must not be flown at any altitude within 3 nautical miles of a movement area or the approach or departure path of a runway at an Aerodrome, Authorised Landing Area or Helicopter Landing Site listed in ERSA or designated by Airservices Australia, unless the Certificate holder obtains the written permission of CASA for that operation.”

19. On 20 February 2015, the applicant applied to have the respondent’s decision to impose the condition referred to in paragraph 18 above reviewed by the Tribunal.  On the same date, the applicant also applied for an extension of time for lodging the application for review. 

20. In both the application for review and the application for an extension of time the applicant described the relevant decision as the decision of the respondent to impose the condition referred to in paragraph 18 above in the applicant’s UAV operator’s certificate.  The condition was referred to in the application for review as “Condition 5”.

    THE APPLICANT’S ARGUMENTS

21. In brief terms, the applicant’s arguments relating to the application for review and/or the application for an extension of time include the following:

    (a)When Condition 5 was imposed in the Fourth Certificate, the applicant was not given notice, under s 31 of the CA Act, of its appeal rights. This is the applicant’s reason for the delay in applying for an extension of time.

    (b)The applicant had objected to Condition 5 because it was not consistent with the conditions previously notified by the respondent on 24 January 2014.

    (c)When the applicant emailed a complaint to REGSERVICES on 24 February 2014 about the imposition of Condition 5 the respondent again did not notify the applicant of its appeal rights.

    (d)Condition 5, as imposed on 24 February 2014, is more restrictive that the conditions previously imposed.

    (e)Condition 5 would have a very serious impact on ongoing operations and profitability of the applicant.

    THE RESPONDENT’S ARGUMENTS

22. In brief terms, the respondent’s arguments relating to the application for review and/or the application for an extension of time include the following:

    (a)There has been active conduct by Mr Tran, as the CEO of the applicant, not to allow the respondent to undertake surveillance or regulatory enquiries about a number of matters, including complaints made by members of the public.

    (b)The applicant has rested on its rights or has been aware of a right to seek review, but has chosen not pursued it.   

    (c)There are safety reasons for imposing the conditions in the UAV operators’ certificates of the applicant.

    (d)The earlier conditions in the Third Certificate are more onerous than Condition 5.

    (e)Condition 5 provides a mechanism for the applicant to seek case by case permission for operations that would otherwise be contrary to Condition 5.  To that extent, Condition 5 is more permissive than the previous conditions.

    (f)Condition 5 is imposed to control those operations which are too close to, or are viewed as being within a certain distance of, an aerodrome, a helipad or an authorised landing area.

    (g)An extension of time would not normally be granted where the grant of such an extension would be futile.  There would be little or no utility in granting the extension.

    (h)The applicant obtained advice from its present solicitors on or prior to 6 November 2014 relating to the amendments to the UAV operator’s certificate.

    (i)The applicant was in a position prior to February 2015 to apply to the Tribunal for a review of the respondent’s decision to impose Condition 5.

    PRINCIPLES TO BE APPLIED

23. In accordance with subsection 29(7) the Tribunal may extend the time for making an application if it is satisfied “that it is reasonable in all the circumstances to do so.”

24. In cases involving an application for an extension of time where there is a prerequisite to the exercise of a discretion, the decision of Wilcox J in Hunter Valley Developments Pty Ltd v Cohen[1] is often cited.

    [1] (1984) 7 ALD 315.

25. However, the Federal Court set out the principles to be applied in an application such as the present in Budd v Secretary, Department of Education, Employment and Workplace Relations[2].  The Court stated, in part:

    18 … it is useful to set out in modified form the relevant principles in relation to the exercise of the Court’s discretion when considering an extension of time in a human rights application based upon those principles distilled by Wilcox J in Hunter Valley as follows: 1. There is no onus of proof upon an applicant for extension of time though an application has to be made. Special circumstances need not be shown, but the court will not grant the application unless positively satisfied it is proper to do so. The "prescribed period" of 28 days is not to be ignored (Ralkon v Aboriginal Development Commission (1982)). 2. It is a prima facie rule that the proceedings commenced outside the prescribed period will not be entertained (Lucic v Nolan (1982)). It is not a pre-condition for success in an application for extension of time that an acceptable explanation for delay must be given. It is to be expected that such an explanation will normally be given as a relevant matter to be considered, even though there is no rule that such an explanation is an essential pre-condition (Comcare v A'Hearn [1993]; and Dix v Client Compensation Tribunal (1993)). 3. Action taken by the applicant other than by making an application to the court is relevant in assessing the adequacy of the explanation for the delay. It is relevant to consider whether the applicant has rested on his rights and whether the respondent was entitled to regard the claim as being finalised. (See Doyle v Chief of Staff (1982)). 4. Any prejudice to the respondent, including any prejudice in defending the proceeding occasioned by the delay, is a material factor militating against the grant of an extension. (See Doyle at p 287). 5. The mere absence of prejudice is not enough to justify the grant of an extension. (See Lucic at p 416). 6. The merits of the substantial application are properly to be taken into account in considering whether an extension of time should be granted. (See Lucic at p 417). 7. Considerations of fairness as between the applicant and other persons otherwise in a like position are relevant to the manner of exercise of the court’s discretion (Wedesweiller v Cole (1983)). [Citations omitted]

    [2] [2008] FCA 1540.

26. The question of the likelihood that an applicant will succeed on the merits of the application is an important factor in deciding whether an extension of time should be granted.  In Kuljic v Secretary, Department of Social Security,[3] the Federal Court said, in part:

    “6. One of the principal considerations to be addressed in deciding whether it is fair and equitable in all the circumstances to extend time is whether the merits of the proposed appeal are such that if an extension of time is granted there is some prospect of success in the appeal. If a consideration of the merits indicates that there is no question to be agitated on the appeal, and there is no prospect of success, it would be futile to grant an extension of time and most unjust to the respondent to subject the respondent to the costs of defending a pointless appeal.  Two questions therefore arise on the papers before the Court in this case: (1) whether an acceptable explanation for the delay has been proffered; and (2) whether, on the merits, there is any prospect of the appeal succeeding…”

    CONSIDERATION

    [3] [1994] FCA 62.

    The Prescribed Period

27. The standard requirement is that an application for review must be lodged within 28 days of the day on which notice in writing of the decision is furnished to the applicant.  Where the law imposes a time limit within which an application for review is to be made, the expectation is that the time limit will be observed.  If that does not occur, there must be special circumstances which enable an application to be made outside of the prescribed period.

    The Delay in Making the Application

28. The time that has elapsed since the expiry of the 28 day period prescribed in the AAT Act is significant, being approximately eleven months. Prima facie time limits imposed by statute must be followed.

    The Reason for the Delay

29. The applicant argues that the reason for the delay was because it was not given notice, under s 31 of the CA Act, of its appeal rights.

    Prejudice to the Respondent

30. The respondent does not suggest that any specific prejudice would arise if the extension were to be granted.  However, the respondent notes the potential general disruption to the provision of other regulatory services by the officers within its RPAS division of the respondent and of the separate investigations into the applicant’s operations.    

    The merits of the substantive application

31. There has been little said by the applicant to explain what an extension of time will achieve.  The applicant’s argument appears to proceed on the basis that the respondent has failed to provide an opportunity to the applicant to make a submission in relation to the conditions imposed on 24 February 2014.  

    Balancing the various considerations

32. On the materials available, there is still uncertainty as to exactly what the complaint is that the applicant (and Mr Tran) have about Condition 5.  The Tribunal does not have any evidence from Mr Tran as to what his understanding of Condition 5 is.  Put at its highest, it appears to be a concern that he has to approach the respondent to get individual permissions or individual approvals to conduct certain types of operations.

33. On the evidence, the Tribunal questions what the granting of an extension of time is going to achieve.

34. Based on the witness statements of the respondent’s officers, there is a real dispute between the parties as to what occurred leading up to the application for an extension of time.  The Tribunal has some concerns about the manner in which Mr Tran has presented his case for the extension of time.  

35. Mr Henderson (counsel for the applicant) has stated that his law firm became involved in this matter in September or October 2014.  However, it appears that by late October 2014 Mr Tran was aware of the relevant issues and the law firm sought to raise them as a basis for not engaging in meetings with the respondent.  This seems clear from the letter from the firm to Mr Duffy dated 6 November 2014.

36. Given these circumstances, there was ample opportunity before 20 February 2015 for the applicant to apply to this Tribunal for review of the decision by the respondent to impose Condition 5 in the UAV operator’s certificate issued on 24 February 2014.

37. In paragraph 32 of his affidavit, Mr Tran states that the meeting with Mr Denby is yet to occur.  However, it appears the respondent attempted on three occasions to arrange a meeting.  Mr Denby has stated that the failure by Mr Tran and the applicant to meet with the respondent “is an ongoing matter of concern as it limits investigations into the various allegations received by CASA and whether the applicant’s operations are being conducted in accordance with its UOC and the civil aviation legislation”. 

38. The matter of concern that Mr Denby refers to in the previous paragraph is highlighted in the letter sent to Mr Tran by Mr Duffy on 13 March 2015.  In the Tribunal’s view, it is clear that the respondent’s investigations and surveillance functions rightly focus on the safety reasons for imposing the conditions in the UAV operators’ certificates of the applicant.     

39. In the Tribunal’s view, there are no special circumstances in the present case which enable an application for review to be made outside of the prescribed period.

    DECISION

40. Having regard to the parties’ evidence and their submissions, the Tribunal refuses the applicant’s application, under s 29(7) of the Administrative Appeals Tribunal Act 1975, for an extension of time to lodge the application for review of the decision of the respondent.

I certify that the preceding 40 (forty) paragraphs are a true copy of the reasons for the decision herein of Senior Member R W Dunne

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Administrative Assistant

Dated 3 June 2015

Date(s) of hearing	28 April 2015
Advocate for the Applicant	Mr J Henderson
Solicitors for the Applicant	Tindall Gask Bentley
Advocate for the Respondent	Mr A Carter
Solicitors for the Respondent	Legal Services Group, CASA