Kardos v Sarbutt

[2006] NSWCA 111

New South Wales

Court of Appeal

CITATION:	Civil Aviation Safety Authority v Sydney Heli-Scenic Pty Limited [2006] NSWCA 111
HEARING DATE(S):	17 March 2006
JUDGMENT DATE:	9 May 2006
JUDGMENT OF:	Giles JA at 1; Santow JA at 2; McColl JA at 84
DECISION:	Appeal dismissed with costs.
CATCHWORDS:	CONTRACT – Whether compromise agreement gave rise to contractual obligations enforceable by the Court – Capacity of Civil Aviation Safety Authority to bind itself in contract – whether agreement unenforceable as a fetter on CASA’s statutory discretion.
LEGISLATION CITED:	Administrative Appeals Tribunal Act 1988 (Cth) s26; s42C, s42D Civil Aviation Act 1988 (Cth) s3A, s9A, s13; s28, s28BA, s28BB, s31,s32
CASES CITED:	Ansett Transport Industries (Operations) Pty Ltd v The Commonwealth (1997) 139 CLR 54 Australian Woollen Mills Pty Limited v The Commonwealth (1954) 92 CLR 424 South Australia v The Commonwealth (1962) 108 CLR 130
PARTIES:	CIVIL AVIATION SAFETY AUTHORITY (Appellant) SYDNEY HELI-SCENIC PTY LIMITED (Respondent)
FILE NUMBER(S):	CA 40573/05
COUNSEL:	D F JACKSON, QC/ I L HARVEY (Appellant) B W WALKER, SC/ R J BRENDER (Respondent)
SOLICITORS:	Blake Dawson Waldron (Appellant) McLaughlin Riordan (Respondent)
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	DC 2584/02
LOWER COURT JUDICIAL OFFICER:	S Walmsley SC DCJ
LOWER COURT DATE OF DECISION:	06/10/2005

CA 40573/05
DC 2584/02

GILES JA
SANTOW JA
McCOLL JA

9 MAY 2006

CIVIL AVIATION SAFETY AUTHORITY v SYDNEY HELI-SCENIC PTY LIMITED

Judgment

1 GILES JA: I agree with Santow JA.

INTRODUCTION

2 SANTOW JA: A statutory authority, the Civil Aviation Safety Authority (“CASA”), was held to have bound itself to a compromise of proceedings in the Administrative Appeals Tribunal (“AAT”), based on a set of agreed conditions henceforth to be applicable to the respondent’s civil aviation licence. The respondent, Sydney Heli-Scenic Pty Limited (“Scenic”), brought those AAT proceedings challenging CASA’s earlier cancellation of its Aviation Operation Certificate (“AOC”).

3 In barest essentials, the circumstances which led to those AAT proceedings were these. CASA had cancelled the AOC of Scenic. Scenic sought to have that decision set aside by the AAT. A delegate of CASA then purported to agree a compromise with Scenic as above, on the basis of a set of agreed conditions to apply to the AOC thereafter. Before the agreement was acted upon, the delegate advised Scenic that “Canberra” had instructed him to withdraw, which in fact CASA then purported to do. The next day CASA told the AAT hearing that there was no agreement. An application to stay the proceedings was heard and, with CASA opposing it, was dismissed.

4 CASA’s capacity to bind itself in an agreement to compromise was put in issue at trial and again on appeal. The two grounds pressed on appeal were these:

(a) that the subject matter of the contract relied upon was not capable of giving rise to obligations that were contractual in nature, meaning of a kind enforceable by the courts, having regard to the paramount consideration of safety of air navigation mandated by the Civil…