Hevi Lift (PNG) Pty Ltd v Civil Aviation Safety Authority

[1997] FCA 1612

JUDGMENT No. [p97 .mum.

IN THE FEDERAL COURT OF AUSTRALIA )

NEW SOUTH WALES DISTRICT REGISTRY ) No.NG 553 of 1997

GENERAL DIVISION 1

Between: HEVI LIFT (PNG) PTY

LIMITED

Applicant

And: CIVIL AVIATION SAFETY

AUTHORITY

Respondent

REASONS FOR JUDGMENT

EINFELD J SYDNEY 5 AUGUST 1997

This matter commenced by way of an application for order of review of what was at the time a refusal by the respondent (the Authority) to process the applicant's application for an Air Operator's Certificate (AOC) pursuant to the Civil Aviation Act (the Act) to conduct aerial work operations using a Kamov 32A

helicopter registered number RA31586, manufactured in the

Russian Federation. Since the time of the application for relief against this refusal, and pursuant to a request by the Court, the Authority actually made a decision on 21 July to refuse an AOC in respect of this aircraft (the decision).

The applicant, a Papua New Guinean company, operates helicopters

and fixed wing aircraft in Papua New Guinea,

number of countries in Asia and the Pacific

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LIBRARY

purposes. A Kamov is a heavy helicopter capable of carrying an external load up to 5 tonnes or 5,000 litres of water in firefighting operations. It has been extensively used in Australia for such purposes for several years. The aircraft's

operations in Australia have been taking place with official approval under a series of temporary or interim six months AOCs but the decision means that no further interim certificates are

to be issued. As a consequence the helicopter cannot be used in Australia and will either have to be returned to Russia or other place from which it came or left on the ground. The result to the applicant's business operations is obvious.

Because the decision to refuse an AOC has now been made, the application as presently filed can no longer have any relevance or application but the applicant has foreshadowed filing another application in substitution for the current one which would seek the same or similar relief in respect of the decision actually made on 21 July. What I have to say now assumes that that application is or will be filed and relates to that application.

The applicant seeks expedition of its application on the grounds that its commercial activities using this helicopter have been brought to a sudden unexpected halt and that it is losing considerable moneys as a consequence of the Authority's attitude in the matter. I have already ordered expedition, without

objection by the Authority subject only to what follows. The Authority seeks an order that the Court exercise its

jurisdiction under section 10 (2) (b) (ii) of the Administrative

Decisions (Judicial Review) Act and dismiss the application on the grounds that the matter should be dealt with in the Administrative Appeals Tribunal.

For reasons of time I will not now attempt to list all the Authority's submissions in this connection as they have been placed in writing, and there is therefore already a record of them. The principal argument is that there will be a possibility for a full review in the Tribunal on the merits of the airworthiness of this helicopter which is not available in this Court. Likewise, the Authority says, the Civil Aviation Act itself provides its own avenue of review to the Tribunal in respect of reviewable decisions, of which this is one, and that the Court should in the circumstances give way to that regime.

It is assumed in the Authority's submissions that a review on the merits is actually what the applicant is seeking, for it is the applicant which must determine both the relief that it seeks and the nature of the proceeding that it wishes to have conducted. For its part, the applicant says that it is not seeking a review on the merits but a number of rulings of law, the effect of which would mean that the Authority would be bound to issue the AOC or at least that it would be bound to review the reasons given for its decision not to do so. The applicant contends that with the advantage of the Court's interpretation

of the relevant statute law, the Authority would be likely if

not bound to come to a different conclusion.

The relevant statutory provisions for present purposes are sections 28 and 28A of the Act. Section 28 is in an unusual form. It provides that where there is an application for an AOC, the Authority must issue it if satisfied about certain matters. The criteria for this satisfaction are in relevant terms set out in paragraphs (a) and (b) of subsection (1). So far as concerns paragraph (b), nothing is raised in the decision of 21 July suggesting that any of the criteria there set out have not been established to the satisfaction of the Authority.

The reasons given for the decision make clear that the Authority is not satisfied that the aircraft complies or is able to comply

with appropriate airworthiness standards sufficient to warrant an AOC. However, a close reading of the reasons suggest that there may be an argument available that these reasons have nothing to do with the regime set out in section 28(1). Moreover, section 28A makes particular provisions in relation to certain foreign registered aircraft of which it seems that this helicopter is one.

Indeed the reasons given for the decision may also be interpreted as applying certain political criteria, unrelated to

the regime set out in the statute. Without going into the matter in too much detail, the letter setting out the reasons

does not actually identify any failings in the airworthiness of

the helicopter at all nor does it direct the applicant to any particular requirements concerning airworthiness of which the Authority remains to be satisfied. An argument will no doubt be raised that in order to express the satisfaction referred to in section 28(1), if that is the appropriate statutory provision for this particular helicopter, there must be findings of fact on the matters envisaged by the section.

For example, in paragraph (a) of section 28 (l), the satisfaction which the Authority must have is that the applicant has complied with or is capable of complying with the provisions of the Act, the regulations and the Civil Aviation Orders that relate to safety, including provisions about the competence of persons to do anything that would be covered by the AOC. The applicant

wishes to argue that nothing in the decision or in the predecessor refusal to make a decision has identified any such matters. Moreover, the letter setting out the reasons makes reference to the relatively recent change from the predecessor of the present Authority to the present Authority as not necessarily requiring the new body to comply with any undertakings or understandings reached by its predecessor. No doubt an argument will be advanced in this connection that this

is not a matter which the statute requires or permits to be

taken into consideration and indeed may be an actual avoidance

of the matters to which the statute refers.

Although the application for the order of review seeks a very large charter of relief, some of which, as it seems to me, is inappropriate to the nature of the case sought to be raised, it

seems quite clear that the major relief sought is an order in the nature of mandamus pursuant to section 39B of the Judiciary Act. Of course the same result can be obtained by a mix of the relief provided by the Administrative Decisions (Judicial Review) Act but in substance the applicant is seeking an order that the respondent is, in the present circumstances, bound to supply it with or issue an AOC. This is the stuff of mandamus or an order in the nature of mandamus rather than the type of review to which the ADJR Act normally applies.

When this matter first came into the list, I raised with the parties whether the application for review as presently filed, and presumably to be filed in its new form, will in fact dispose of the dispute between the parties. The Authority answered this question in the negative in that no matter what the Court does there will still need to be further consideration as to whether the AOC should be issued. On the other hand, the applicant says that the present proceedings will, to all intents and purposes, dispose of the dispute. In this matter I should be guided by

the applicant's viewpoint, not particularly because I prefer it but because it is the applicant which has the most to lose if

its decision or attitude in the matter is incorrect. That is

why I raised the matter at the outset. There is no point in the Court entertaining an application for declaratory or mandamus

type relief if the matter will not resolve the conflict, but as the applicant is confident that it will resolve the conflict, its attitude ought to be given considerable weight.

The Authority speaks in its submissions also of what it describes as a "broad discretion" in the Authority in relation

to the issue of the certificate requested. Clearly whether there is a broad discretion in the Authority in this regard is a matter of careful statutory interpretation. Certainly if there is a discretion in the Authority, whether it has been exercised

or exercised lawfully can only be viewed in the light of the reasons given for the decision in this particular case. For present purposes it is sufficient for me to observe that the existence or otherwise of a discretion in the Authority in the circumstances is obviously a matter of controversy and is not a clear cut result of the relevant statutory provisions. The applicant's claim that the Authority is required to issue a certificate is in fact given support by the opening words of section 2 8 ( 1 ) , although I agree with the Authority that an argument can be raised under paragraphs (a) and (b) of that subsection as to whether this apparent instruction is in some way affected by the wording that these paragraphs use in terms of the criteria which the Authority is required to take into account.

One problem that does arise, as it seems to me, is this: if it turns out that the Authority's reasons for making the decision

are not reasons envisaged by the statute, then one of the elements of relief on which the Court could fix is to require a further decision to be made, or at any rate to invalidate the present decision and leave open to the Authority the opportunity of giving another decision with different reasons, even though with the same result.

The forbidding prospect therefore arises that the present exercise might have to be undertaken a second time. I mention this problem because, as I read the submissions, there is a certain element of unreality in the conflict said to separate the parties. The applicant argues that the Authority has not made a decision that this helicopter is not airworthy and is not able to comply with all the necessary safety provisions relevant to its use, as distinct from a decision that the Authority has not been satisfied of these matters. It also contends that the provisions of section 28 are not applicable here and that the provisions of section 28A should govern the decision in this case.

In this event, what is described as a review on the merits in the AAT would be the first review of the particular safety and airworthiness of this particular helicopter for it would not be a review of the respondent's decisions on the merits that this helicopter does not comply with the necessary safety criteria. I think that this is quite important in determining the application to dismiss the matter in this Court and transfer it

or allow it to be recommenced in the Administrative Appeals

Tribunal.

As I see the position at present, there has been no decision that this aircraft does not warrant or merit a certificate but that the applicant has failed to persuade the Authority that that is the case. That determination is certainly a matter as to which argument is entitled to be directed based upon the statute, for if the Authority has not become satisfied that the aircraft is unable to comply with the relevant safety provisions and airworthiness standards -- and it seems that it has not done so yet -- then the applicant is perfectly entitled to seek some at least of the relief set out in its application.

The applicant argues that the matter is urgent. A reference to the Tribunal will necessarily occasion considerable delay, not merely because of its workload, but because a hearing on the merits of this particular matter will require a considerable degree of expert evidence about airworthiness issues, even if it

is possible for this helicopter to be sensibly analysed in this

respect by anyone in Australia. Experience and the evidence shows that at best such a matter could not be dealt with in a short period of time, even if the Tribunal was able to give the case some form of expeditious hearing. A dismissal here would thus have the very reverse effect that my expedition of the matter sought to avoid.

I do not think that such a procedure should be imposed upon an applicant who does not seek it and, indeed, should be avoided unless it is quite impossible to do so. It is not impossible in this case. The applicant seeks interpretation issues to be dealt with and claims that when dealt with they will provide it

with all the relief which it needs to obtain the AOC, if not

automatically, then by the natural evolution of events.

In the circumstances, I have therefore concluded that I should not exercise the powers under section 10(2)(b)(ii) and dismiss the application for the purpose of enabling it to go before the Tribunal, and that I should leave the matter where it is right now. The hearing will take place, as planned, on Monday 11 August 1997.

I certify that this nnd the p/

Preceding Pages are e true copy of the

Reasons for Judgment herein of his Honour