Jandakot Airport Chamber of Commerce Inc and Minister for Infrastructure and Regional Development

[2016] AATA 270

Jandakot Airport Chamber of Commerce Inc and Minister for Infrastructure and Regional Development [2016] AATA 270 (29 April 2016)

Division	GENERAL DIVISION
File Number(s)	2015/1202
Re	Jandakot Airport Chamber of Commerce Inc
APPLICANT
And	Minister for Infrastructure and Regional Development
RESPONDENT
And	Jandakot Airport Holdings Pty Ltd
OTHER PARTY

DECISION

Tribunal	The Honourable Justice ML Barker, Deputy President
Date	29 April 2016
Place	Perth

The objection by Jandakot Airport Holdings Pty Ltd to the production of documents in response to the summons to produce documents issued by the Tribunal on 30 March 2016 at the request of the applicant is granted.

........[Sgd]..ML Barker.......................

The Honourable Justice ML Barker, Deputy President

CATCHWORDS

PRACTICE AND PROCEDURE – summons to produce documents – application to have summons set aside – whether summonsed documents relevant to matters in issue – summons set aside

LEGISLATION

Airports Act 1996 (Cth) – ss 70 – 71 – 81 – 81(3) – 81(3)(aa) – 81(3)(d) – 81(4)

REASONS FOR DECISION

The Honourable Justice ML Barker, Deputy President

29 April 2016

1. The applicant in this review proceeding, Jandakot Airport Chamber of Commerce Inc, seeks review of the decision of the respondent, the Minister for Infrastructure and Regional Development, to approve the final Master Plan 2014 for the Jandakot Airport.  The other party, Jandakot Airport Holdings Pty Ltd is the lessee of the airport.

2. By summons to produce documents issued by the applicant under the Administrative Appeals Tribunal Act 1975 (Cth), the applicant requires Jandakot Airport Holdings to produce:

   (1) Any and all documents relating to the hazard identification procedures in effect at the time the preliminary draft Master Plan 2014 was submitted to the Minister for final approval.

   (2) Any and all documents relating to the safety management system in effect at the time the preliminary draft Master Plan 2014 was submitted to the Minister for final approval.

   (3) Financial statements for Jandakot Airport Holdings for financial years 2004 through 2015, inclusive.

3. Jandakot Airport Holdings Pty Ltd objects to the summons to produce those documents.

   SHOULD THE DOCUMENTS IN PARAS (1) AND (2) BE PRODUCED?

4. As to the documents in paras (1) and (2) of the summons, relating to hazard identification procedures and the safety management system, Jandakot Airport Holdings Pty Ltd says that neither category of documents was required to be included in the draft Master Plan submitted to the Minister under s 71 of the Airports Act 1996 (Cth) (“the Act”), for final approval. 

5. Thus, it is contended, their relevance can only arise if they are documents relating to any matter to which the Minister must have regard in deciding whether or not to approve the draft Master Plan under s 81(3) of the Act.

6. Jandakot Airport Holdings Pty Ltd submits it is necessary to emphasise that the draft Master Plan is a planning instrument, not an operational instrument. It says that is apparent from the first relevant consideration in s 81(3)(aa), as s 70, there referred to, refers to purposes for the draft Master Plan which relate to future development, not existing operations.

7. Jandakot Airport Holdings accepts, however, that by s 81(3)(d), the views of the Civil Aviation Safety Authority (“CASA”) and Airservices Australia (“AA”), insofar as they relate to safety and operational aspects of the plan, must be regarded by the Minister, and so by this Tribunal in this review proceeding. Thus it is the views of those organisations, not how the airport lessee – Jandakot Airport Holdings Pty Ltd – manages safety on site at a point in time, that the Minister must consider under s 81.

8. Further, Jandakot Airport Holdings Pty Ltd submits that s 81(4), which states that subs (3) does not, by implication, limit the matters to which the Minister may have regard, does not thereby make documents of the categories described in paras (1) and (2) of the summons, material to the relevant decision making of the Minister or this Tribunal in this review proceeding.

9. Indeed, it is argued that the applicant must demonstrate that the hazard identification procedures or the safety management system of the airport lessee are required to be considered by the Minister in order properly to discharge his approval duty under the Act, and that is not evident from any analysis of the Act or the manner in which the applicant so far has pleaded its case.

10. Jandakot Airport Holdings Pty Ltd submits that there is no pleaded issue in the applicant’s amended statement of issues that currently provides any basis for determining the relevance of the summonsed documents in paras (1) and (2).  For example, it is not alleged that any particular hazard identification procedure, or even the absence of one, has any bearing upon any proposed development in the draft Master Plan.  Similarly, it is argued, there is no allegation of how, in any respect, any part of the safety management system has any bearing upon a proposed development in the draft Master Plan.

11. Further, it is contended that, in either case, there is no allegation or assertion of any matter which may assist the Tribunal to identify how any such document described in (1) and (2) might enable it to examine the merits of any views expressed by CASA or AA, to which the Tribunal must pay regard.

12. Jandakot Airport Holdings Pty Ltd accepts that if there subsequently is a pleaded issue raised that is relevant, following the filing of the applicant’s further amended statement of issues at the end of April 2016, then further consideration might be given to whether the documents sought are relevant to those issues. But until that point is reached, it is submitted, the purpose of the summons in requiring production seems directed only to enable the applicant to engage in an irrelevant examination of the merit or otherwise of the hazard identification procedures or safety management system of the airport lessee in 2014, which is not a relevant exercise for the Minister or Tribunal under s 81 of the Act.

13. The applicant’s initial written submissions on this question pointed to the advice provided by CASA to the Minister in June 2014 which, the applicant submits, the Minister erred in relying on.

14. Reference is also made to a number of communications by officers of CASA concerning the proposed location of runway four, which it says make the summonsed documents relevant.

15. In the course of oral submissions on behalf of the applicant, and further (unsolicited) written submissions sent to the Tribunal on 26 April 2016, it was explained, in broad terms, that there was an argument that what is referred to as the fourth runway (presently not in existence) would better be located further to the south, an area previously designated by the 2005 Master Plan as a conservation area.  However, so the argument goes, that area was also designated for future development under the 2009 Master Plan, and exclusively designated as such under the 2014 Master Plan, and is to be developed for commercial uses.  Thus the applicant considers a bad decision has been made because that area, once developed commercially, will no longer be an area for a possible future runway, for example, the exit of the proposed runway four.

16. The simple fact is, as ultimately agreed by the representatives for the applicant and Jandakot Airport Holdings Pty Ltd in the course of argument, the proposed runway four and its location has remained in the exact same location in the 2005 Master Plan, 2009 Master Plan and the 2014 Master Plan now under review.  While the applicant, by its further written submissions, says it was unable to challenge prior master plans as the intention of Jandakot Airport Holdings with regard to the development of, what the applicant says is, the preferred location of runway four had not “matured”, I accept Jandakot Airport Holdings’ submission that such an explanation, whatever it may mean, does not obviate the need to establish the relevance of the summonsed documents to facts in issue.

17. The real point I think that needs to be made presently is that the amended statement of issues currently filed on behalf of the applicant does not plainly identify an issue that arises under s 81 of the Act, that arguably makes the documents in paras (1) and (2) of the summons relevant.

18. As loosely referred to at [43(c)] of the applicant’s amended statement of issues, s 81(3)(d) of the Act requires the Minister to have regard to the views of CASA and AA so far as they relate to the safety and operational aspects of the plan. It is difficult to see exactly how any documents that Jandakot Airport Holdings may have about hazard identification procedures or safety management systems already “in effect” with regard to existing runways, currently arise in respect of how the 2014 Master Plan will affect safety. In this regard, the Tribunal agrees with the broad distinction that Jandakot Airport Holdings makes, that s 81 is concerned with the approval of the plan, not the operation of the airport by the airport lessee.

19. It is no answer to the absence of any identified issue in this regard to say, as the applicant did in oral submissions, that the documents in paras (1) and (2) of the summons are required to draft a further amended statement of issues, on the basis that if their production reveals nothing worth pleading about safety, then no safety issue will be pleaded.  This only highlights the absence of any identified issue to which the documents sought are relevant.  In this regard, the Tribunal agrees with the submissions made by Jandakot Airport Holdings Pty Ltd in further written submissions that the Tribunal is not to be used as a vehicle for the applicant to fish for documents it may or may not use.

20. Generally the Tribunal should make the related point that the manner in which the applicant is currently conducting the review proceeding seems largely to fail to recognise it is for the applicant to say why, having regard to the relevant considerations in s 81, the Tribunal should come to a different decision so far as approval of the 2014 Master Plan is concerned, from that made by the Minister. It is for the applicant, and, if it wishes to call expert witnesses, those expert witnesses, to identify deficiencies. The manner in which the applicant appears to be going about the conduct of the review proceeding, however, is to effectively require the production of a range of documents, including from Jandakot Airport Holdings Pty Ltd, to falsify information given to the Minister at relevant times and apparently relied upon by the Minister in approving the Master Plan. In doing so, it seems to be operating on the basis that the review hearing is in the nature of a broad-based public inquiry, without regard to the decision making criteria established by s 81. It is for the applicant to make clear in its statement of issues, by reference to s 81, what matters are in issue. If it successfully does this, then a proper judgment can be made about the production of documents held by Jandakot Airport Holdings Pty Ltd that may be relevant to those issues.

21. At this point, the applicant, through its amended statement of issues and the filing of the statements by witnesses including expert witnesses, should be able to positively state why, having regard to relevant factors, a different decision from that the Minister made should now be made by the Tribunal.  It will then be for the Minister and Jandakot Airport Holdings Pty Ltd, if they wish to engage with those issues, to put on their own evidence including any relevant expert evidence.  If documents are in the possession of those parties, which have not already been disclosed, they would of course need to be produced.

22. The point should be taken, as acknowledged by Jandakot Airport Holdings Pty Ltd, that once a further amended statement of issues is filed at the end of this month of April, the question of relevance may become more apparent. 

23. Therefore, to make matters as clear as possible, the Tribunal does not presently see the documents described in paras (1) and (2) of the summons as relevant to any matters in issue but may, in due course, be persuaded that they are relevant to matters put in issue.

    SHOULD THE DOCUMENTS IN PARA (3) BE PRODUCED?

24. So far as the production of the financial statements referred to in para (3) of the summons is concerned, the Tribunal notes that, as currently pleaded in [44] of its amended statement of issues, the applicant asserts the Minister took into account irrelevant considerations relating to the financial returns of the airport lessee.  In circumstances where an issue is expressly stated to be irrelevant, it is difficult to see how documents relating to that issue can be said to be relevant.

25. In any event, the Tribunal accepts the submissions of Jandakot Airport Holdings Pty Ltd that, even if the applicant were to amend its case in this regard, there is no consideration in s 81(3) or (4) that makes relevant the financial performance of the lessee in the operation of the airport. The Tribunal again notes, and accepts, the broad distinction that Jandakot Airport Holdings Pty Ltd makes, that s 81 is concerned with the approval of the plan, not the operation of the airport by the airport lessee.

26. To the extent that the applicant seeks to develop a very broad argument to the effect that if the lessee is not meeting its lessee’s obligations, which might be shown by its financial statements and the like, that reflects on the decision to approve or not to approve the 2014 Master Plan, I consider the applicant is not only drawing a very long bow, but that such argument does not reasonably arise under the s 81 considerations. Thus the Tribunal considers the documents described in para (3) of the summons need not be produced by Jandakot Airport Holdings Pty Ltd.

    CONCLUSION AND ORDER

27. In the result, the summons should be dismissed, but without prejudice to the right of the applicant in due course, depending on how it pleads its case in its forthcoming further amended statement of issues, to raise the question of production of the documents in paras (1) and (2) of the summons.

I certify that the preceding 27 (twenty -seven) paragraphs are a true copy of the reasons for the decision herein of The Honourable Justice ML Barker, Deputy President

.....[Sgd]...Z Bush...............

Associate

Dated 29 April 2016

Date(s) of hearing	22 April 2016
Representative for the Applicant	Mr J Garber
Representative for the Respondent	Mr R Wade
Solicitors for the Respondent	Ashurst
Representative for the Other Party	Mr M Hotchkin
Solicitors for the Other Party	Hotchkin Hanly