Griffiths, F. v Civil Aviation Authority
[1995] FCA 342
•16 MAY 1995
CATCHWORDS
PRACTICE AND PROCEDURE - application to dismiss proceedings - no issue of principle involved.
Roy Frederick Griffiths and Grif-Air Helicopters Pty. Ltd. v. Civil Aviation Authority and Peter P. Rundle
QG95 of 1993
Cooper J., Brisbane, 16 May, 1995
IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION
No. QG95 of 1993
BETWEEN:
ROY FREDERICK GRIFFITHS
First Applicant
AND: GRIF-AIR HELICOPTERS PTY. LTD.
Second Applicant
AND: CIVIL AVIATION AUTHORITY
First Respondent
AND: PETER P. RUNDLE
Second Respondent
JUDGE MAKING ORDER: Cooper J.
WHERE MADE: Brisbane
DATE OF ORDER: 16 May, 1995
MINUTES OF ORDER
THE COURT ORDERS THAT :-
Application QG95/93 on behalf of Grif-Air Helicopters Pty. Ltd. as second respondent be dismissed.
Grif-Air Helicopters Pty. Ltd., pay the respondent's costs of and incidental to the application and notice of motion filed 15 August, 1994 to be taxed.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION
No. QG95 of 1993
BETWEEN:
ROY FREDERICK GRIFFITHS
First Applicant
AND: GRIF-AIR HELICOPTERS PTY. LTD.
Second Applicant
AND: CIVIL AVIATION AUTHORITY
First Respondent
AND: PETER P. RUNDLE
Second Respondent
CORAM: Cooper J.
PLACE: Brisbane
DATE: 16 May, 1995
REASONS FOR JUDGMENT
On 16 June, 1993 these proceedings were instituted by application for prohibition, mandamus and injunction against an officer of the Commonwealth.
The application was brought by Roy Frederick Griffiths as first applicant, and Grif-Air Helicopters Pty. Ltd. as second applicant. The application set out in paragraphs 1 to 6 the grounds of complaint of the applicants and related to the suspension of Mr. Griffiths' Commercial Helicopter Pilot Licence, his Private Helicopter Pilot Licence, his Commercial Aeroplane Pilot Licence, his Private Aeroplane Licence, and his approval to act as Chief Pilot. The proceedings also related to the suspension of the Air Operators Certificate of Grif-Air Helicopters Pty. Ltd., the second applicant.
On 20 July, 1993 further proceedings (number QG117/93) were filed by Mr. Griffiths personally. Those proceedings arose out of a notice to show cause issued on 22 June, 1993 by a Mr. Peter Phillip Rundle, the first respondent, and the Civil Aviation Authority, the second respondent. The effect of the notice was that Mr. Griffiths was required, within 28 days, to show cause why his pilots' licences should not be varied, suspended or cancelled pursuant to Regulation 269(1) of the Civil Aviation Regulations. On the same date Mr. Griffiths filed in QG95/93 and QG117/93 an affidavit in support of each application.
By notice of motion filed 29 July, 1993 in each proceeding the respondents sought to have each of the proceedings dismissed summarily, or in the alternative to have parts of each of the proceedings struck out.
The notices of motion filed on 29 July, 1993 were returned before Sweeney J. on 5 August, 1993. On that occasion Mr. Griffiths and the company did not proceed with the application for interlocutory relief contained on the original applications. This was because stays of the licence suspensions sought by way of interlocutory relief in the proceedings in this court had already been granted by the Administrative Appeals Tribunal in the interim. Before Sweeney J., Mr. Griffiths was given leave in each application to withdraw the affidavits filed by him on 29 July, 1993. The affidavits were withdrawn from each of the court files and thereafter formed no part of the documents on the court files. On the occasion that the matter was before Sweeney J., Mr. Griffiths was not represented by counsel and he acted in person. After discussion between counsel for the respondents and Mr. Griffiths, Mr. Griffiths was given leave to withdraw proceedings QG117/93.
There was discussion before Sweeney J. as to what ought to occur in relation to application QG95/93, all parties being aware that the show cause notice had been issued at that time, and that the question of variation, suspension, or cancellation was a live issue before the Civil Aviation Authority for determination. In the end result, it being anticipated that Mr. Griffiths and Grif-Air Helicopters Pty. Ltd. would, if the decision of the Civil Aviation Authority was adverse to them, apply to the AAT for relief, application QG95/93 was adjourned to a date to be fixed. It is clear on the material that the application was to remain as a vehicle to enable Mr. Griffiths to bring any further proceedings in relation to the show cause notice, if there was some difficulty with the AAT exercising jurisdiction in the matter. In this way, Mr. Griffiths and the company could avoid the payment of a further filing fee of $300.00 in the event that the further proceedings were necessary.
The Civil Aviation Authority did determine the matters adversely to Mr. Griffiths and the company and proceedings were taken in the AAT, where Mr. Griffiths and the company were represented by counsel. No problem as to jurisdiction arose in the AAT. Transcript of the proceedings before the AAT was before me today and it is clear that the various applications, other than the application relating to Mr. Griffiths' personal licences, were abandoned by counsel with the effect that they stood dismissed in the AAT. The decision of the AAT, in relation to Mr. Griffiths' personal licences, was the subject of fresh proceedings filed in this court by Mr. Griffiths, being proceedings QG82/94.
On 20 July, 1994 Mr. Griffiths filed in QG117/93 two documents headed "NOTICE OF A CONSTITUTIONAL MATTER UNDER SECTION 78B OF THE JUDICIARY ACT 1903". In one of those documents Mr. Griffiths is stated as the applicant and purports to give notice in relation to matters arising under the Constitution and involving its interpretation in accordance with section 78B of the Judiciary Act.
He alleges in the material filed 20 July, 1994 that the Civil Aviation Authority has :-
"Used the powers vested in the Authority under the Civil Aviation Act to vary, suspend or cancel the licences, certificates and approvals granted by them or their predecessors to Mr. Griffiths and his associated companies.
After setting out the powers it is alleged that sections 98(3)(c), 98(3)(p) and 98(3)(q) of the Civil Aviation Act are ultra vires in that :-
"They purport to give judicial powers to the Civil Aviation Authority and their delegated officers contrary to the doctrine of separation of powers and the constitutional conventions under chapters 1, 11 and 111 of the Constitution.
There is then a further allegation relating to the powers not being vested in a Chapter III court, and the powers being bills of attainder. In the result, declaratory relief is sought, the effect of which would be to set aside the decisions as being ultra vires. Further, an order for mandamus is sought, restoring to the applicant his licences, certificates and approvals.
The other document Mr. Griffiths challenges is the constitutional validity of the Civil Aviation Regulations as delegated legislation. In that document he seeks declarations that regulations 268 and 269 of the Civil Aviation Regulations and the action of the CAA in suspending or cancelling his licences, are invalid.
The notices of constitutional challenge have not been before the court on any occasion and no notice of the challenge has been served on the Commonwealth and States Attorneys-General.
It is to be remembered that QG117/93 was the application which Mr. Griffiths was given leave to withdraw on 5 August, 1993 and which the transcript shows was treated as withdrawn on that day. It is unclear to me how the notices under section 78B of the Judiciary Act came to be filed on this particular file.
The matter QG95/93 came before Kiefel J. on the 14 December, 1994. I should record that on 2 December, 1994 Kiefel J. gave judgment in application QG82/94 on an issue of competency, the point being taken that Mr. Griffiths had in the interim been declared bankrupt and was incompetent to maintain the proceedings. Her Honour ordered on 2 December that the appeal in QG82/94 from the decision of the AAT be dismissed as incompetent. Her Honour's decision was appealed to a Full Court of this court and the question was reserved by the Full Court.
On 14 December, 1994 application QG95/93 came before Kiefel J. On that date her Honour dismissed the proceedings QG95/93 insofar as they were brought by Mr. Griffiths personally for the same reason that she found that proceedings QG82/94 were incompetent. That left open the proceedings insofar as they stood in the name of the second applicant, Grif-Air Helicopters Pty. Ltd. As appears at pages 6 and 7 of the transcript of those proceedings her Honour adjourned the application principally for the purpose of enabling Mr. Griffiths to take legal advice from Mr. Hewitt, a solicitor who has been providing assistance to him on a pro bono basis, as to what course ought to be taken by the company.
The matter came before me on 24 February, 1995 when I ordered that the respondent to the notice of motion (Grif-Air Helicopters Pty. Ltd.) file and serve any affidavit upon which it intended to rely in opposition to the notice of motion by 4.00 pm on 10 April, 1995 or serve a notice listing any affidavits filed in other proceedings upon which the respondent intended to rely. I also gave directions as to the filing of any further material by the applicant on the notice of motion in reply.
The affidavit filed by Mr. Griffiths on 10 April, 1995 in paragraph 1, seeks to refer to the affidavit which was filed in QG95/93 and refers to a hearing date of 30 July, 1993. Later he refers to the affidavit as having been sworn in June, 1993. I take that to be the affidavit which Mr. Griffiths was given leave to withdraw and which was removed from the court file. In the affidavit Mr. Griffiths attempts to deal with the matters contained in the show cause notice issued by the Civil Aviation Authority and seeks, again by reference back to the affidavit which has been withdrawn, to assert that the merits on the show cause were in favour of Mr. Griffiths and his company, and on that basis that the decision miscarried.
Mr. Griffiths sets out his personal flying history and the hardship that the decisions have caused to him and makes certain allegations as to the reason that the CAA has taken the various actions against him which it has. The affidavit ends with a request that the court stay the actions of the first and second respondents until their powers are determined by the courts and ask the court to overrule the restriction placed on the personal licence of Mr. Griffiths so that he can rejoin the workforce.
Mr. Griffiths has submitted that I ought to grant an adjournment in order that the substance of the notice of a constitutional matter and the contents of the affidavit materials which have been withdrawn can be re-pleaded in these proceedings pursuant to the leave granted by Sweeney J. At the present time, there is no formulated proposed amendment. In their present form the notices of constitutional matters on the file QG117/93 do not relate appropriately to the position of the company, nor is any particular relief sought in favour of the company in those proceedings.
Similarly, to the extent that any conduct on the part of the Civil Aviation Authority is to be relied upon in relation to the decision to vary or cancel as opposed to the original decision merely to suspend pending investigation, relevant material has not been isolated from the mass of material which at least in part appears to have been overtaken by the passing of events. An application for an adjournment was opposed by the Civil Aviation Authority on the basis that the company was given the time from 14 December, 1994 to formulate any amendments, and it has not sought to do so. Further it was submitted that there is nothing in these proceedings as they are presently constituted which would enable the company to rely upon the notices filed in QG117/93.
It is further submitted by the Civil Aviation Authority that the purpose for which Sweeney J. adjourned the original application has now become unnecessary. The AAT accepted jurisdiction in relation to the decisions consequent upon the show cause notices. The matter QG82/94 which arose out of the proceedings before the AAT, has been taken in this court and deals with Mr. Griffiths personal licences. Insofar as the company is concerned, it abandoned any relief which it had on foot in the AAT some time ago. Consequently, there is no proceeding arising out of proceedings in the AAT which would sustain the underlying reasoning of Sweeney J. in keeping these proceedings on foot.
In the absence of some considered document seeking to plead a positive case against the respondents under section 39B of the Judiciary Act 1993 for relief in favour of the company I am not minded to allow these proceedings to continue. I am not persuaded that at the end of the day any saving in costs and expenses would be achieved by not terminating these proceedings. In any event, it remains open to the company to institute such further proceedings as it may deem appropriate, setting out clearly the nature of its complaint and the relief which it seeks. And, if it does so, it may or may not fall on another occasion to consider the adequacy of that material.
Furthermore, it may be that, depending upon the outcome of the appeal in the Full Court, Mr. Griffiths may seek to be re-joined as a party to these proceedings if they remain on foot notwithstanding that he did not appeal the order of Kiefel J. on 14 December, 1994 in these proceedings. In my view it is more appropriate that, if Mr. Griffiths succeeds in his appeal and wishes to litigate issues beyond those in QG82/94 that it be done in fresh proceedings rather than attempting to re-join Mr. Griffiths in the
existing proceedings. Such a course would involve the necessity to re-plead again to deal with his personal circumstances in those proceedings. Therefore nothing is to be gained by maintaining the present proceedings.In this matter, the Civil Aviation Authority has sought an order for costs of the motion and of the proceedings. The ordinary rule is that costs follow the event unless there has been some conduct on the part of the successful applicant which would entitle the court to depart from the normal rule. In this litigation the Civil Aviation Authority has vigorously and consistently enforced its legal rights on every occasion. Difficulties can and do arise where litigants appear in person because the taking of points for good reason may be seen by those litigants as the placing of legal barriers before them to frustrate them in having "their day in court". Unfortunately, that is often the case.
Nevertheless, the applicant is entitled to insist that the proceedings be conducted appropriately against it, and in that circumstance that is not something disentitling them from their costs.
THE COURT ORDERS THAT :-
Application QG95/93 on behalf of Grif-Air Helicopters Pty. Ltd. as second applicant be dismissed.
Grif-Air Helicopters Pty. Ltd., pay the respondent's costs of and incidental to the application and notice of motion filed 15 August, 1994 to be taxed.
I certify that this and the preceding eight (8) pages are a true copy of the reasons for judgment herein of his Honour Justice Cooper.
Date:16 May, 1995
Associate
Applicant in Person: Mr. Roy Griffiths
Counsel for the Respondent: Mr. G.A. Thompson
Solicitors for the Respondent: Mallesons Stephen Jacques
Date of Hearing: 16 May, 1995
Place of Hearing: Brisbane
Date of Judgment: 16 May, 1995
0
0
0