Hempel and Civil Aviation Safety Authority
[2006] AATA 188
•3 March 2006
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2006] AATA 188
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2005/849, 851
GENERAL APPEALS DIVISION ) Re BARRY HEMPEL Applicant
And
CIVIL AVIATION SAFETY AUTHORITY
Respondent
DECISION
Tribunal Deputy President P E Hack SC Date3 March 2006
PlaceBrisbane
Decision The Tribunal dismisses each application as the decisions are not decisions reviewable by the Tribunal.
..............................................
Deputy President
CATCHWORDS
CIVIL AVIATION – cancellation of instrument of delegation – maintenance direction – applications for extension of time to apply for review – whether reviewable decisions – whether applications frivolous or vexatious
Administrative Appeals Tribunal Act 1975 ss 29, 42B
Civil Aviation Act 1988 s 31
Civil Aviation Regulations 1988 Regulations 7, 38, 297A
Civil Aviation Safety Regulations 1998 Regulation 21.181
Re McWilliam and Civil Aviation Safety Authority (2004) 79 ALD 361
Re Gowing and Civil Aviation Authority (1990) 11 AAR 411
Re Hewitt and Secretary, Department of Transport (1982) 4 ALD 547
Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344
Re Brian Reddish and Civil Aviation Safety Authority [1999] AATA 721
Lesi v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 134 FCR 27
REASONS FOR DECISION
3 March 2006 Deputy President P E Hack SC introduction
1.The applicant, Mr Barry Hempel, has filed applications by which he seeks to review two decisions of the respondent, the Civil Aviation Safety Authority (the Authority). The decisions are described by the applicant as being,
- a decision by Mr Alan J Close, made on 5 September 2001, to issue a Maintenance Direction to Duskedge Pty Ltd of Canberra in respect of aircraft VH-ZZR prohibiting the operation of that aircraft pending the performance of maintenance (the first decision); and
- a decision by Mr Bruce Gemmell made on 2 September 2003 to cancel the applicant’s instrument of delegation (the second decision).
The first decision is the subject of application Q2005/849 and the second decision the subject of application Q2005/851.
2.As is apparent from the dates of the decisions, the applications, which were lodged on 23 December 2005, were made considerably outside the time prescribed by s 29(2) of the Administrative Appeals Tribunal Act 1975 (the AAT Act) for the lodging of the applications. I am presently concerned with the application by Mr Hempel for the Tribunal to extend time for lodging the applications pursuant to the power in s 29(7) of the AAT Act. That power may be exercised “if the Tribunal is satisfied that it is reasonable in all the circumstances to do so”.
3.The Authority opposes the applications to extend time. Moreover, the Authority submits that neither decision is reviewable pursuant to the AAT Act and, as well, submits, in the alternative, that even if the decisions are reviewable, each application ought be dismissed pursuant to s 42B of the AAT Act on the grounds that they are each frivolous and vexatious.
4.For the purposes of this hearing I have been provided, by way of evidence, with,
- a statement by the applicant’s solicitor, Mr P B Carter dated 25 January 2006 – Exhibit 1;
- a statement by the applicant, Mr Hempel, dated 25 January 2006 – Exhibit 2;
- a statement by Mr A J Close dated 17 November 2003 – Exhibit 3.
5.I have the benefit, as well, of detailed written submissions provided by Mr Carter (Exhibits 4, 5 & 6) and from Mr Anastasi, the solicitor for the Authority (Exhibits 7 & 8). After the hearing, and with the agreement of Mr Carter, the Authority forwarded to my chambers the “Show Cause” notice addressed to Hempels Aviation Pty Ltd dated 6 January 2005 (Exhibit 9). It was relied upon by the applicant.
6.What follows is taken from that material. There is no dispute about most matters of primary fact; where there is a dispute that has present relevance it is in relation to the question of the receipt of correspondence. For the purposes of determining this application I propose to assume that issue favourably to Mr Hempel.
Factual background – the first decision
7.The first decision concerns the aircraft VH-ZZR. That aircraft was owned by Duskedge Pty Ltd. At all relevant times the applicant was holding the aircraft on consignment for sale. In May 2001, whilst the aircraft was at Archerfield airport, the applicant noticed a fuel leak and a problem with the adhesion of sealant on the inside of the wing of the aircraft. Mr Hempel consulted Mr Ian Lynch and Mr Robert Llewellyn, both aircraft engineers, and had them inspect the problem and provide an opinion as to its cause. Those gentlemen thought that the problem was caused by structural damage.
8.Seemingly Mr Hempel did not agree with their conclusions. He arranged for another opinion to be obtained from a Mr Rapensberg and Mr Colin Waddington, both licensed aircraft engineers. Mr Hempel says that they reached a different conclusion to that of Mr Lynch and Mr Llewellyn and that he arranged for repair work to the aircraft to be undertaken by Mr Waddington under the supervision of Mr Rapensberg. The repairs were made on 9 August 2001 and involved removal of the wings, re-sealing and re-attachment. The work was noted in the aircraft logbook.
9.In the meantime, in June 2001 Mr Close, who was a Senior Airworthiness Inspector employed by the Authority, received correspondence outlining certain faults with the aircraft. He obtained from Mr Llewellyn a report dated 30 May 2001 that detailed his inspection and Mr. Llewellyn’s “grave concern” about the structural integrity of the wing. Thereafter, on 5 September 2001, Mr Close served the Maintenance Direction, the subject of the first decision. It is, on its face, directed to Duskedge Pty Ltd and a copy is noted as having been sent to Mr Hempel. It is not clear from Mr Hempel’s material whether he accepts that a copy of the notice was served on him. It directed that the maintenance specified in it was to be carried out prior to further flight.
Factual background – the second decision
10.The Authority has power under Regulation 7 of the Civil Aviation Regulations 1988 (CAR 1988) to delegate to a person all or any of its powers and functions under those Regulations. By an instrument in writing dated 9 May 2000 the applicant was delegated power to conduct test flights. The instrument was expressed to expire at the end of June 2001, however it was varied by a subsequent instrument so as to expire at the end of June 2004.
11.In early July 2003 the Authority sent to Mr Hempel a notice requiring him to show cause why that delegation ought not to be revoked. His solicitors provided a response. In addition Mr Hempel says that on 15 August 2003 he sent a letter to the Authority by facsimile in which he said,
“I am advising due to personal reasons I am at this time relinquishing my test approvals under CASA 143/100 instrument of delegation.”
I assume for the purposes of this discussion that this letter was sent by Mr Hempel and received by the Authority, although I note that the Authority says that it has no record of its receipt. It is not necessary for me to determine whether, in fact, it was sent and received.
12.Thereafter the second decision was made by Mr Gemmell and notified to the applicant by letter dated 2 September 2003.
The issues raised
13.Having regard to the application and the Authority’s response to it three issues fall for consideration. Logically, that which needs be considered first is the contention by the Authority that neither decision is a reviewable decision. It may then be necessary to consider whether to grant an extension of time within which to bring the applications and, finally, to consider whether the applications are frivolous and vexatious.
Are there reviewable decisions?
14.At the outset I note that the applicant submitted that the question of there being reviewable decisions was a matter to be decided at the ultimate hearing. It was submitted that the issue did not impinge on the question of whether or not extensions of time ought to be allowed. I am unable to agree with that submission. The issue is not one that can only be determined by reference to further evidence or by deciding contested issues of fact. If there are, in truth, no reviewable decisions then it is wasteful of public and private resources to undertake a hearing, a fortiori when that hearing will not make the position any clearer than it is now.
15.The Tribunal does not possess a general power to review decisions made under Commonwealth legislation. Its power to review a decision is dependent on there being an act or a legislative instrument providing for an application to the Tribunal for the review of that decision. Thus, s 31(2) of the Civil Aviation Act 1988 (the CA Act) provides that application may be made to the Tribunal for the review of “a reviewable decision”, a term defined by s 31(1) as meaning,
“(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.”
16.Similarly, Regulation 297A of CAR 1988 lists a great number of decisions that can be made pursuant to those Regulations and that are reviewable decisions in respect of which application may be made to the Tribunal.
17.The case for the applicant, as articulated by his solicitor Mr Carter, is that both the first decision and the second decision are reviewable decisions that come within the definition of that term in s 31(1) of the CA Act. Regulation 297A of CAR 1988 is not relied upon.
18.The applicant submitted that to determine whether there is a reviewable decision pursuant to s 31(1) of the CA Act I ought ask the three questions identified by Deputy President Forgie in Re McWilliam and Civil Aviation Safety Authority (2004) 79 ALD 361 at 368 in these terms,
“(24) … What is clear … is that CASA’s decision or action must be properly characterised to determine whether or not it comes within the terms of the definition of a ‘reviewable decision’ in s 31(1) of the Act.
(25) In order to carry out that characterisation, it is necessary to ask three questions. The first question is whether there has been a decision of some sort in relation to a ‘certificate, permission, permit or licence’. If so, the second is whether that ‘certificate, permission, permit or licence’ was ‘granted or issued under [the] Act or the regulations’. The third question is whether the decision that has been made may be characterised as either:
… a refusal to grant or issue, or a cancellation, suspension or variation of … (s 31(1)(a))
or
… the imposition or variation of a condition, or the cancellation, suspension or variation of an authorisation , contained in .. (s 31(1)(b))
that ‘certificate, permission, permit or licence granted or issued under [the] Act or the regulations’.”
19.It seems to me, with respect, that this is a proper approach to the present issue and I propose to consider both decisions in this way.
20.In relation to the first decision it is said, and I accept, that an aircraft may not be flown without a Certificate of Airworthiness. Thus, it is submitted by Mr Carter that the maintenance direction, the subject of the first decision, comes within s 31(1) of the CA Act because it,
“had the purpose and effect of suspending a permission, permit or licence and an authorisation, because it had the effect of:
(a) suspending the operation of the Aircraft; and
(b)suspending the authorisation for the Aircraft to be flown under its Certificate of Airworthiness.
and is therefore within the operation of both sub-sections of s 31.”
21.It was submitted by Mr Carter that “one must consider the ‘certificates’ and ‘permissions’ which relate to the aircraft” in question, and note that the decision specifically stated that the aircraft was prohibited from being flown until the maintenance direction was complied with. He stated that all three limbs of the test from McWilliam must be regarded as being satisfied, because the issue of a maintenance direction that prohibited flight of the aircraft,
“restricts the use of the aircraft and its ‘permissions’ to fly contained within the Certificate of Registration and Certificate of Airworthiness. These are also ‘certificates’ to which the imposition of the maintenance direction applied and indeed, restricted.”
22.I am unable to accept that argument. The maintenance direction is expressed to have been given under Regulation 38(1) of CAR 1988. That Regulation permits the Authority to give directions relating to the maintenance of Australian aircraft for the purpose of ensuring the safety of air navigation. Even if it be accepted that the effect of the maintenance direction was to suspend the further operation of the aircraft, that suspension is not in relation to a certificate, permit, permission or licence. The certificate of airworthiness issued in relation to the aircraft pursuant to Regulation 21.181 of the Civil Aviation Safety Regulations 1998 (CASR 1998) was not affected by the maintenance direction although, by reason of Reg. 21.181(6) of CASR 1998, CASA could suspend or cancel the certificate of airworthiness if maintenance was not carried out. Had that occurred there would have been a decision in relation to a certificate, permission, permit or licence but in my view the maintenance direction did not satisfy the first requirement of the three questions.
23.An aircraft does not fly pursuant to a permission, rather the statutory scheme prohibits flight without, inter alia, registration, a valid airworthiness certificate and compliance with safety requirements. But compliance with all of those requirements does not, of itself, create a certificate, permission, permit or licence.
24.Moreover, it is significant that despite the large number of decisions under CAR 1988 that are expressly declared by Regulation 297A to be reviewable decisions, a decision under Regulation 38 is not one of them.
25.Thus I conclude that the first decision is not a reviewable decision and the Tribunal has no jurisdiction in relation to that decision.
26.I should add that, had I been satisfied that it was a reviewable decision, I would have been satisfied, notwithstanding the submissions of the Authority to the contrary, that the applicant was a person whose interests were affected by the decision and who therefore had standing to make the application. Given that the applicant has been charged with offences that apparently involve contravening that direction it seems to me that that fact is sufficient to demonstrate the requisite interest.
27.I turn then to the second decision, the decision to revoke Mr Hempel’s delegation earlier given.
28.As it seems to me, in the statutory context in which this matter is to be determined a delegation is not a certificate, permission, permit or licence. It is a mechanism whereby a power conferred upon one body may lawfully be exercised by another. By the delegation the Authority conferred some of its powers and functions under CAR 1988 upon the delegate – it did not grant a certificate, permission, permit or licence.
29.There is authority in the Tribunal, in any event, that the revocation of a delegation does not come within the terms of reviewable decision in s 31. In Re Gowing and Civil Aviation Authority (1990) 11 AAR 411 at 412, Deputy President McMahon said,
“The jurisdiction of this Tribunal is limited to the power to review a reviewable decision. In my opinion, a delegation does not fall within the terms ‘certificate, permission, permit or licence’ and, consequently, a cancellation of a delegation is not a reviewable decision.”
The Deputy President noted the remarks to similar effect of Davies J, as President of the Tribunal, in Re Hewitt and Secretary, Department of Transport (1982) 4 ALD 547 at 551-2 where his Honour said,
“In my opinion, it is a matter entirely for the secretary, Department of Transport, as to whom he authorizes to examine and approve applicants. … But whatever the means adopted, the authority is one granted pursuant to the secretary’s general function of administering the regulations. Whom he authorizes to examine applicants is a matter of his own concern and is not the subject of review by the Administrative Appeals Tribunal, which is concerned with the licences and ratings specified in the regulations.”
30.Thus, in my view, the second decision is not a reviewable decision and the Tribunal has no jurisdiction to review it.
31.In light of these conclusions the appropriate order in each of Q2005/849 and Q2005/851 is that the application be dismissed.
The application to extend time
32.Having regard to my earlier conclusion it is not strictly necessary to consider the other two issues, but I propose to do so, albeit briefly, against the possibility that my earlier conclusion is erroneous.
33.It has been accepted that the decision of Wilcox J in Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 provides a helpful, but not exhaustive, statement of the principles that guide consideration of applications such as the present.
34.In the present case it appears that the application in relation to the first decision is motivated by the tactics of a criminal trial that is, or was at the time of the application, impending. There is no suggestion that the applicant was unaware of the decision and it must surely be the case that he was aware that the CAR 1988 imposed criminal sanctions for a failure to comply with a maintenance direction.
35.In relation to the second decision the applicant made a conscious decision at the time of receipt of the 3 September letter not to “appeal” the decision. It is not an answer to say, as does the applicant, that it was not until 4 February 2005 that the applicant learned that the Authority was contending that it had not received the applicant’s letter of 15 August 2003 relinquishing his delegation. Even after that realisation it took some 11 months to commence the proceedings.
36.The change of heart has been brought about by the applicant’s belief that “the existence of the cancellation of instrument of delegation … may be relied on by the decision-maker or CASA to support further administrative action relating to his licence to fly aircraft.”
37.I infer from the material provided by the applicant that at the time of the decision and for some years afterwards he was content, by conscious decision, to rest on his rights. The material does not show whether he, in some other way, demonstrated to the Authority that he did not accept the decision.
38.The Authority does not suggest that there is any particular prejudice to it as a consequence of the lengthy delay and, given what is known of the two decisions, it seems unlikely that the quality of evidence on either side has been affected by any delay.
39.It is, I think, relevant to the present case that the Authority has the general task of regulating air safety in this country. This is a case where it is necessary to consider the matter beyond the effect on the immediate parties.
40.Ultimately, had the question arisen, I would have refused the applications to extend time, principally having regard to the absence of any real explanation for the very considerable delay in bringing the applications and to the merits of the applications as described in the paragraphs that follow that concern the utility of the applications.
Frivolous or vexatious
41.The power of the Tribunal to dismiss an application under s 42B of the AAT Act may be exercised at any stage of the proceedings and it may be exercised if the Tribunal is satisfied that the application is frivolous or vexatious.
42.There is a considerable body of jurisprudence in the Tribunal concerning applications that lack utility and, for that reason, may be regarded as being frivolous or vexatious. I am grateful to adopt the reasoning of Deputy President A M Blow OAM QC in Re Brian Reddish and Civil Aviation Safety Authority [1999] AATA 721. There, after considering Gowing (supra), Re Surf Air and Civil Aviation Authority (1991) 22 ALD 118 and Re Williams and Australian Electoral Commission (1995) 38 ALD 366, the learned Deputy President concluded at paragraph [33] that,
“an application to this Tribunal may be dismissed on the ground that it is frivolous if the Tribunal is unable to make a decision that would be of any practical benefit to the applicant.”
43.In relation to the first decision the work required by the maintenance direction has been done and the direction was complied with on 30 April 2003. The aircraft is no longer owned by Duskedge. What decision could the Tribunal now sensibly make? No decision of the Tribunal could affect the criminal proceedings in which the applicant has been charged with contravening the maintenance direction. Setting aside the decision would not render invalid the original maintenance direction: cf. Lesi v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 134 FCR 27, 39 at paragraph [49].
44.The second decision is, if anything, a clearer example of an application that lacks any utility. That is so for two reasons. First, on the applicant’s case, he had relinquished the delegation before it was cancelled. But, more importantly, the delegation would have lapsed through the effluxion of time at the end of June 2004. There is no decision that the Tribunal could sensibly make in substitution for that already made that would have any practical utility.
45.Had it been necessary for me to consider the matter I would have concluded that each application was frivolous and I would have dismissed each application pursuant to s 42B(1)(a) of the AAT Act.
I certify that the 45 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President P E Hack SC
Signed: .....................................................................................
Robert Hayes, AssociateDate of Hearing 24 February 2006
Date of Decision 3 March 2006
Solicitor for the Applicant Mr P Carter, Carter Capner Lawyers
Solicitor for the Respondent Mr A Anastasi, Departmental Solicitor
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