Griffiths v Civil Aviation Authority

[1998] FCA 1812

/8/2 1/998

JUDGMENT NO. ....atn..wwwe.e .m*v*e*.*m

GENERAL DISTIUBUTION

IN THE FEDERAL COURT OF AUSTRALIA	QG 82 of 1994
QUEENSLAND DISTRICT REGISTRY

Between: ROY FREDERICK GRIFFITHS

Applicant

And:

CIVIL AVIATION AUTHORITY

Respondent

REASONS FOR JUDGMENT

EINFELD J BRISBANE 23 MARCH 1998

This appeal is from a decision of the Administrative Appeals Tribunal given on 31 May 1994. The case has a considerable litigious history. Following upon the decision of the Tribunal, there was an appeal to this Court which was disposed of by Kiefel J on 2 December 1994 by an order of summary dismissal on the basis that, as a bankrupt, Mr Griffiths had no standing and was not entitled to prosecute the proceedings. That decision was appealed to a Full Court of this Court which, in a decision reported at (1996) 67 FCR 301, allowed the appeal against the decision of Kiefel J by holding that the right of appeal against conditions imposed on a commercial pilot's licence was not property vesting in a trustee by reason of the provisions of the Bankruptcy Act.

The matter has therefore come back to the Court at first instance to determine the appeal from the Tribunal's decision. The actual decision of the Tribunal, which is set out at page 2 of the appeal papers, is that:

The Tribunal afJms the decision under review.

That order reflects the last sentence of the judgment of the Tribunal which is to be found at page 53 of the appeal papers. In the penultimate paragraph of the judgment, paragraph 121 at

page 52 of the appeal papers, the Tribunal states:

In light of all our findings offact and all of the evidence, we consider that Mr Griflths has not indicated that he is prepared to fulJil his responsibilities and has shown that lack of preparedness consistently over the years. Having listened to the evidence and particularly to that of Mr Griflths over an extendedperiod, we have concluded that his lack ofpreparedness is based on his view that he is an excellent pilot who can fly his way out of trouble. There has been no question that he is an excellent pilot but this cannot overcome his consistent failure to comply with the law including the laws regarding maintenance, records as well as the use of appropriate equipment. The safety of others depends on maintenance and records and, in relation to certain flights such as those over water, the use of appropriate equipment. Although the responsibilities of apilot are not CO-extensive with those of the Chief Pilot or of an AOC or holder of a certificate of registration, we have no reason to believe that Mr Grzpths will change his general pattern of behaviour should he hold unrestricted pilot's licences but fly only helicopters belonging to others and operated by others.

Paragraph 122 states:

Although we appreciate that our decision effectively precludes Mr Grzpths from earning his living as a pilot, we feel obliged to find that he is not a j t and proper person to have the responsibilities and exercise and perform the functions and duties of any unrestricted licence.

The Tribunal members then repeat that they "affirm the decision under review." The decision under review was a decision of Mr Peter P. Rundle, a delegate of the respondent Authority. In a letter dated 9 August 1993, which is to be found at page 129 and following of part 2 volume 1 of the Appeal Book, Mr Rundle set out what his decision was:

I hereby vary, with efSect from the date of this letter, your Commercial Pilot (Helicopter) Licence 018850 and your Commercial Pilot (Aeioplane) Licence

01 8850 -

I interject that those two numbers are the same. I am not sure if they are supposed to be -

in that it is now a condition of those licences that:

1, you are restricted to conducting flights for commercial purposes only in respect of such operations as are prescribed in Civil Aviation Regulation 206(a)(ii), (iii) and (viii); and

2.    the carriage of other persons whilst you are flying an aircraft is not permitted; and

3.    flights for commercial purposes by you (which is subject to the condition set out in I. above) may only be conducted under an Air Operator Certificate which is not issued to you or any immediate members ofyour family or by an entity in which you have a direct or indirect or beneficial interest.

Further, pursuant to Civil Regulation 269(1) and in accordance with Civil Aviation Regulation 129(I)(a), (c), (4 and (e), I hereby vary, with effect fiom the date ofthis letter, your Private Pilot (Helicopter) Licence 018850 andyour

Private Pilot (Aeroplane) Licence number 018850 in that it is now a condition of those Licences that you may not operate in private operations as described in Civil Aviation Regulation 2(7A).

The delegate went on to tell Mr Griffiths in the letter that he could appeal that determination to the Administrative Appeals Tribunal. Thus the decision of the delegate was to vary the two licences which Mr Griffiths held, both in relation to helicopters and aeroplanes, in the two respects quoted with the consequence that although there was a reference to sub- regulation (l)(d) of Regulation 269 in relation to both sets of variations, there was no express finding that Mr Griffiths was not a fit and proper person to hold the licences. Sub-regulation (l)(d) of Regulation 269 provides that the Authority may vary a licence where the Authority is satisfied that the person is not a fit and proper person to, as it is called, "have the responsibilities and exercise and perform the functions and duties of a holder of such a licence". That is a finding which the Authority may in an appropriate case make but it did not make it here.

The other paragraphs of Regulation 269(1) deal with specific matters all of which would require particulars to illustrate what the various allegations were. Indeed, in his letter of 9 August 1993, Mr Rundle specifically draws attention to 42:numbered breaches of the various requirements of various regulations. In narrative at the end of his 42 points he also adds some other matters upon which he has relied all of which, including the 42 numbered matters, may come, and presumably do come, within the various provisions of regulation 269(1) other than. paragraph (d) which is a more general finding which would presumably depend upon specific findings under the other subparagraphs.

Thus what was before the Tribunal was this decision by Mr Rundle. It is true, of course, that the Tribunal stands in the shoes of the decision maker and may make any decision that is appropriate under the law. It is not bound by the decision of the decision maker below and it may entirely ignore the decision maker's views and proceed upon its own basis, but it cannot do both. If it affirms the decision under review then that is exactly what it must do. It cannot substitute an alternative finding whilst affirming the decision under review. As explained earlier the Tribunal did not set aside or reject the decision under review and substitute another decision. Its affirmation of the decision to vary is the matter to which it should have confined itself if its determination was to affirm the decision under review. In my view the Tribunal's references to the applicant's entitlement to be a Chief Pilot or the holder of an AOC or of a certificate of registration are completely irrelevant to the matter before the Tribunal which was to consider whether the decision of the decision maker below should be affirmed or whether another decision should be substituted for it within the confines of what is permitted by the regulations and what the applicant was called upon to contest.

It must be emphasised that Regulation 269 says that the decision to vary is to be made on one of the various grounds. The decision made by the delegate was that on the grounds that he set out in his letter of 9 August 1993, all of which came within the framework of paragraphs (a), (b), (c) and (e) of Regulation 269(1), should be affirmed or whether something else should be substituted. In fact, what happened was that the Tribunal, whilst saying that it affirmed the decision under review, sought also to make an additional finding which I respectfully think was beyond affirming the decision of the delegate.

When the hearing was commenced today, a hearing which was advised to the Court would take three days, I sought from counsel for the appellant an indication of the matters which he wished to argue. I did so because prior to the hearing the Courf was informed that the submissions that the parties were going to make were the submissions that appeared in the appeal papers as being the submissions that were previously made to the Court at the time when the matter was before Kiefel J. Those matters raise a vast variety of contentions which if they were all argued would certainly occupy at least three days of the Court's time. But counsel for the applicant indicated that his argument was going to be much shorter than that, that he was not relying upon all the matters set out in the written submissions but that he

wanted to confine himself to attacking the finding that Mr Griffiths was not a fit and proper

person to hold an unrestricted licence and, secondly, to the decision to vary the licence.

When I questioned him in relation to his argument on the decision to vary the licence, he informed me, as he was bound to do, that he did not challenge the factual findings made by the Tribunal. Of course, under the Administrative Appeals Tribunal Act he could not do so because section 44(1) of that Act restricts appeals to this Court from the Tribunal to questions of law. And it eventually emerged in the course of argument this morning that what the applicant wanted to argue was that there should have been no finding by the Tribunal that he was not a fit and proper person to have an unrestricted licence.

This argument was based upon a feeling, or a belief, that if that finding stood the appellant would have no future right of appeal, if upon further application to the Civil Aviation Authority for an unrestricted licence he was refused. Some authority was quoted in this connection. However, counsel for the Authority said that this was not the Authority's position at all and that he had no instructions to argue that that would be a result of the finding of the Tribunal in this regard. This seemed to me to be an argument in semantics. Clearly, if the decision under review were maintained literally, that is, if the unrestricted licence was varied in accordance with Mr Rundle's letter of 9 August 1993, the applicant would be perfectly entitled to apply to the Authority at an appropriate time for the variations to be lifted. The Authority would be able, as it thought fit, either to grant that application, to vary the variations in the sense that it could reduce the number of restrictions, or it could refuse the application outright. In either of the last two situations the applicant would appear to have a perfectly available right to appeal to the Tribunal if he was dissatisfied with the decision of the Authority. Once again the Authority, through its counsel, conceded that that was so, I believe correctly.

Hence, the Authority raises no objection to my suggestion, in keeping with the applicant's desires, that what ought to be done is to give effect to the Tribunal's decision to affirm the delegate's decision by finding that the Tribunal erred in law in adding a finding that the applicant was not a fit and proper person to have the responsibilities and exercise and perform the functions and duties of any unrestricted licence. The parties consent to that course. I

therefore direct that the parties bring in short minutes of orders that will give effect to that

determination, and upon that being done, I will make the appropriate orders in Chambers.

[AFTER DISCUSSION]

The orders when ultimately made will cany an order that the applicant pay the respondent's

costs. That order should be included in the short minutes of order.