McBain v C.A.S.A (No.1)
[2003] FMCA 83
•14 March 2003
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| McBAIN v C.A.S.A. (No.1) | [2003] FMCA 83 |
| ADMINISTRATIVE LAW – Appeal from Administrative Appeals Tribunal – Civil Aviation – refusal to issue commercial helicopter licence – whether applicant fit and proper person – relevance of conduct during Tribunal hearing. |
Administrative Appeals Tribunal Act1975, ss.43(1), 44
Civil Aviation Act 1988
Civil Aviation Regulations, 5.09, 5.09(3), 5.11, 5.11(1), 269(1)(a)
The Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] 162 CLR 24
Attorney General for the Australian Capital Territory v Heiss [2002] FCA 187
Australian Broadcasting Tribunal v Bond [1990] 170 CLR 321
Petracaro v The Commissioner for Consumer Affairs [1994] 62 SASR 387
Ord Air Charter Pty Ltd v CASA [2000] FCA 1545
Naxakis v Western and General Hospital [1999] 197 CLR 269
Secretary Department of Social Security v Riley [1987] 17 FCR 99).
Comcare v Burton [1998] 50 ALD 846.
Secretary Department of Social Security v Hodgson [1992] 37 FCR 32
| Applicant: | BERNARD ERIC McBAIN |
| Respondent: | CIVIL AVIATION SAFETY AUTHORITY |
| File No: | MZ1183 of 2002 |
| Delivered on: | 14 March 2003 |
| Delivered at: | Melbourne |
| Hearing Date: | 9 January 2003 |
| Judgment of: | McInnis FM |
REPRESENTATION
| Counsel for the Applicant: | Mr J Langmead SC with Mr P Lithgow |
| Solicitors for the Applicant: | Grundy Maitland & Co |
| Counsel for the Respondent: | Mr I Harvey |
| Solicitor for the Respondent: | Mr A Anastasi Office of Legal Counsel Civil Aviation Safety Authority |
ORDERS
The Application be dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MZ 1183 of 2002
| BERNARD ERIC McBAIN |
Applicant
And
| CIVIL AVIATION SAFETY AUTHORITY |
Respondent
REASONS FOR JUDGMENT
This is an appeal by BERNARD ERIC MCBAIN (the Applicant) in relation to a decision by the Administrative Appeals Tribunal (the Tribunal) delivered on 28 June 2002 (the decision). The Tribunal had affirmed a decision by the Civil Aviation Safety Authority (the Respondent) to refuse to reissue a commercial helicopter pilot licence (CPL(H)) to the Applicant.
In a decision made on 12 February 2002 (the Reviewable Decision) the Respondent refused to issue the Applicant with a CPL(H) on the ground that the Applicant was not a "fit and proper person" to hold the licence.
The Applicant relied upon an amended notice of appeal filed on
7 November 2002. In support of the appeal the Applicant adopted a statement of facts and contentions filed on 21 October 2002 and an outline of submissions filed on 18 December 2002. The Respondent relied upon its contentions of fact and law filed 1 November 2002 and an outline of submissions filed on 24 December 2002. Both parties were represented by counsel at the hearing of the appeal.
It is common ground that the Applicant had been the holder of a pilot's licence for approximately 15 years prior to a decision made by the Respondent on 22 August 2001 to cancel the licence. In making the decision to cancel the Applicant's licence the Respondent informed the Applicant by notice of cancellation dated 22 August 2001, that it was satisfied that grounds existed which justified the cancellation of the licence.
The reviewable decision before the Tribunal was based upon the same issues that were before the Respondent when it decided on 22 August 2001 to cancel the licence. Those issues were set out in the Tribunal’s decision in paragraph 5 as follows:-
“1.Between January 1999 and September 2000, McBain Holdings Pty Limited, conducted aerial work operations without an Air Operator’s Certificate (AOC). You applied for an AOC on 18 April 2000, but CASA did not issue one.
2.You permitted aircraft VH-MBM, VH-AKV, VH-MHM and VH-MHQ to be operated without a maintenance release by Messrs Benbow, Nordstrom and O’Callaghan (the pilots). If there were valid and current maintenance releases, time in service, maintenance performed and defects were not recorded on them by the pilots between January 1999 and September 2000.
3.Aircraft VH-MHM operated without a certificate of airworthiness and maintenance release once it was issued with a certificate of registration on 5 November 1999. Aircraft VH-MBM was operated after 20 September 1999 when a certificate of registration was issued, but a certificate of airworthiness was not issued until 19 January 2000.
4.You and McBain Holdings permitted maintenance to be performed on aircraft VH-MBM, VH-AKV, VH-MHM and VH-MHQ (the aircraft) by persons who were not qualified to do so.
5.You performed maintenance on aircraft VH-MHM and VH-MHQ, when not qualified to do so.”
The Applicant as Operations Manager of McBain Holdings Pty Ltd (the company) was authorised or otherwise exercised power on behalf of the company to employ and terminate the employment of pilots employed by the company and to determine the terms and conditions under which the pilots worked for the company. Certain operations were carried out by the company between January 1999 and September 2000 in relation to commercial fish spotting operations in the Western Pacific Ocean.
Having been satisfied that the Applicant contravened a number of provisions of the Civil Aviation Act 1988 (the Act) and the Civil Aviation Regulations (the Regulations), it is clear that the Respondent could exercise its powers under Reg 269(1)(a) of the Regulations to vary, suspend or cancel the licence. Hence, the decision was made to cancel the licence on the basis of the breaches which had been found to have occurred, satisfied the decision maker that the Applicant was not a fit and proper person to have the responsibilities and exercise the functions and duties of a commercial pilot (helicopter) rating and endorsement.
The Applicant upon receiving notification of cancellation of the CPL(H) licence initially lodged an application for review of that cancellation decision and had unsuccessfully sought stays of that decision. Prior to the matter being heard the application for review was withdrawn and the Applicant then applied for the issue of a new licence. That led to the decision under review which was dealt with by the Tribunal being made namley refusal to issue the Applicant with the CPL(H). The Respondent in the Reviewable Decision had made similar findings to those findings made it in support of its decision to cancel the Applicant's CPL(H). It is noted that in the decision to refuse to issue a CPL(H) licence the decision maker had rejected an offer by the Applicant to sit an air law examination and attend a crew resource management course.
It is common ground that the Applicant had an extensive history as a commercial helicopter pilot including over 6400 flying hours which was gained without accident and with an exemplary safety record and regulatory compliance.
Relevant legislation
For the purpose of the appeal the Applicant relied upon the following in the Regulations:
“Regulation 5.09
(1)Subject to subregulation (2), CASA must issue a flight crew licence to an applicant if, and only if, the applicant:
(a)possesses a knowledge of the English language that is sufficient to enable him or her to exercise safely the authority given by the licence; and
(b)is qualified to hold the licence; and
(c)is a fit and proper person to hold the licence.
(2)CASA must not issue a licence to a person if the person:
(a)has knowingly or recklessly made a false or misleading statement in relation to the person's application for a licence; or
(b)does not satisfy the requirements of subregulation (1).
(3)In deciding whether an applicant for a licence is a fit and proper person to hold a licence, CASA must only take into account:
(a)any action taken by CASA, or a responsible organisation, in relation to any authority to perform duties essential to the operation of an aircraft during flight time that was given to the applicant by CASA, or the organisation; and
(b)any other matter that relates to the safety of air navigation.
(4)An applicant for a licence must disclose to CASA information of which the applicant is aware and that is relevant to a matter that CASA must taken into account under subregulation (3).”
Regulation 5.11
“(1)CASA may issue a flight crew licence subject to any condition that is necessary in the interests of safety of air navigation.
(2)A condition must set out:
(a)in the notice under subregulation 5.10 (1); or
(b)on the licence; or
(c)in civil aviation orders under regulation 3.03.”
The issues on appeal
Relying upon the amended notice of appeal and submissions made to the Court the questions of law and/or grounds of appeal were grouped into three significant categories. Before reciting those categories, however, it is important to refer to an extract from the Tribunal's reasons for decision which are relied upon as a basis for the substantive submissions relied upon by the Applicant.
It is appropriate to set out the following extract:
“124.Mr Anastasi submitted that the Tribunal did not have power to issue a licence subject to such conditions. He submitted that if we found that Mr McBain was a fit and proper person to hold a CPL(H) he was entitled to that licence. If on, the other hand, we found that he was not a fit and proper person to have his CPL(H) without conditions, then placing him under conditions would not make him into a fit and proper person to have such a licence.
125.We accept Mr Anastasi's submission on that issue. …”
The extract to which I have just referred followed consideration by the Tribunal of submissions by counsel for and on behalf of the Applicant that the Tribunal should consider a number of conditions which the Applicant would accept as being appropriate in relation to the issue of a licence. These included that the Applicant would not apply for an AOC for a period of five years, would not apply for chief pilot approval for a period of five years, and he would submit to CASA documents as agreed with CASA on a monthly or other reasonable schedule and that he would only fly under the auspice of an AOC holder. It is not necessary to set out the full terms of the conditions.
In the light of the findings to which I have referred and reasons for decision the Applicant raises a number of issues by way of summary of the questions of law and/or grounds of appeal in the present application.
The first general issue is whether the Tribunal had power to issue a commercial pilot licence subject to conditions pursuant to Reg 5.11(1) of the Regulations and s.43(1) of the Administrative Appeals Tribunal Act1975 (the AAT Act)). In considering this issue the Applicant further asserts that it is relevant to consider whether the Tribunal failed to take into account a relevant consideration namely its power to issue the Applicant with the licence subject to conditions. Alternatively whether it took into account an irrelevant consideration namely that if the Tribunal found the Applicant was not a fit and proper person to have his commercial pilot licence without conditions then placing him under conditions does not make him into a fit and proper person to have such a licence. It was further submitted that an error of law may have occurred by the Tribunal's interpretation of Reg 5.09 of the Regulations by applying the proposition that if the Applicant was not a fit and proper person to have his commercial pilot licence without conditions and placing him under conditions would not make him in to a fit and proper to have such a licence.
The second general issue raised on the notice of appeal according to the Applicant was the Tribunal erred by taking into account an irrelevant considerations in respect to the question of whether the Applicant is a fit and proper person to hold a licence by concluding that the Applicant had tried to "mislead the Tribunal" and/or "blaming other pilots who were breaching contraventions relating to the safety of air navigation."
A third general issue relied upon was the claimed failure by the Tribunal to take into account a material fact, namely the opinion of a psychologist who had examined the Applicant on the question of whether the Applicant was a fit and proper person to hold a licence.
In relation to the first issue it was submitted by the Applicant that the Tribunal has the powers on review which are conferred by any relevant enactment on a person who made the reviewable decision. The power to issue a flight crew licence is clearly provided by Regulation 5.11(1) and it was submitted this was a power conferred on CASA by the relevant enactment and therefore a power which could be exercised by the Tribunal.
In support of the submission it was further claimed that the Tribunal had power to issue a licence subject to conditions because the proposed conditions were in the interests of the safety of air navigation as they address the reasons given by the Respondents which refused to issue a licence to the Applicant. The Tribunal erred by accepting the Respondent's submission that it did not have power to issue a licence subject to such conditions.
In the alternative it was submitted that the failure to have regard to power to issue the Applicant with a licence subject to conditions was a failure to take into account a relevant consideration. That failure to take into account a relevant consideration it was submitted should be determined by construing the relevant legislation. (The Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] 162 CLR 24 at 29-41 per Mason J; Attorney General for the Australian Capital Territory v Heiss [2002] FCA 187 at 18 per Higgins, Finn and Weinberg JJ).
It was submitted that a decision maker's power to impose a condition contemplated by Regulation 5.11(1) by definition is a matter related to the safety of air navigation for the purpose of the "fit and proper” decision to be made by the Tribunal.
In considering the expression "fit and proper person" it was submitted the Court should have regard to the joint judgment of Toohey and Gaudron JJ, in Australian Broadcasting Tribunal v Bond [1990] 170 CLR 321 at 380 as follows:
The expression 'fit and proper person' standing alone, carries no precise meaning. It takes its meaning from its context, from the activity in which the person is or will be engaged and deems to be served by those activities ......
Reference was made to a further part of that passage where the Court noted the matters to be taken into account in determining the fitness and propriety of the licensee in that case were to be found by implication from the provisions of relevant statute. It was submitted that the Civil Aviation Act and Civil Aviation Regulations would call for a much narrower construction of ‘fit and proper’ in relation to the Applicant for a commercial pilot licence compared with a broadcasting licence.
It was submitted that Regulation 5.09(3) sets out an exhaustive list of two classes of factors which the Respondent must only take into account in deciding whether the Applicant is a fit and proper person. This follows the meaning of Regulation 5.09(3) which I understand the Applicant to be submitting is pellucid. Blaming other pilots for breaches and contraventions does not fall within those classes of factors set out in the Regulation.
The power to impose conditions of a licence it was submitted is both relevant and inherently linked to the Respondent's duty to consider whether an Applicant is a fit and proper person to hold a licence. Any potential condition by definition is a matter relating to “the safety of air navigation” for the purpose of deciding whether an Applicant is a fit and proper person under the Regulations.
It is in those circumstances that the Applicant submitted the Tribunal erred in law and failed to take into account a relevant consideration by upholding the Respondent's contention that the imposition of a condition could not make an Applicant a "fit and proper person" for the purposes of Regulation 5.09.
In relation to the second issue of misleading conduct during the hearing it is submitted on behalf of the Applicant that those findings were in fact irrelevant to the Tribunal's decision. Reference was made again to the legislation and the Court was referred to the decision of Petracaro v The Commissioner for Consumer Affairs [1994] 62 SASR 387. It was submitted that the context of the words may mean that an individual may be a fit and proper person to hold a licence is a bricklayer, a stonemason and building work supervisor as in the Petracaro case notwithstanding a criminal record including offences for dishonesty. By taking into account the Applicant's conduct during the hearing and in challenging the evidence upon which the cancellation was based it was submitted the Tribunal erred as it had effectively applied an expansive use of fitness and propriety which is unexplainable in the general context of the Civil Aviation Act and the Civil Aviation Regulations. The test imposed by Regulation 5.09(3) excludes from its terms a wide range of factors relating to character including those relied upon by the Tribunal. A finding by the Tribunal that the Applicant tried to give misleading evidence to the Tribunal and/or to blame other pilots who breached conduct does not come within either of the prescribed categories in Regulation 5.09(3).
The third issue of failure to take into relevant evidence namely that of a psychologist was not pursued with quite the same vigour as the other broader issues to which I referred. It was submitted however that the Tribunal made a finding that it placed "no weight on the psychologist report" and that finding it is submitted related to evidence that it was clearly relevant as to the Applicant's propensity and capacity to comply with air navigation rules in the future and therefore the safety of air navigation. The Tribunal pursuant to Regulation 5.09(3) is directed to take such matters into account in considering whether an Applicant is "a fit and proper person to hold the licence." It was submitted the psychologist report specifically refers to objective tests carried out on the Applicant and has arrived at an opinion on the Applicant's personality and propensity based on that test. It was submitted that the Tribunal has no expertise in psychology and as I understood the written submissions had inferred that it would therefore not be able to make its own contrary findings and thereby place no weight on the psychologist's findings because of those contrary findings. The reference to the psychologist being given "only one side of the picture" (appeal book 197 paragraph 149) was unsupported by evidence. In the alternative even if the evidence did exist it would not justify total rejection by the Tribunal and subjective elements of the psychologist testing. It was submitted the Tribunal failed to give any weight to the highly pertinent opinions of the expert on grounds which lack any foundation in fact or law with a further material error of law.
It is relevant to set out an extract of the Tribunal's reasons for decision which relate to its finding concerning the evidence of the psychologist that follows:
“149.We have made findings as to Mr McBain's lack of honesty, and the giving of misleading evidence, and his failure to accept responsibility for the role his breaches played in the non-compliance of the pilots. Because of those findings, we place no weight on the psychologist's report. We find that he was given only one side of the picture and did not have a full appreciation of all the issues.”
The Tribunal further found as follows earlier in its decision:
“138.Mr McBain in our view has also shown that he cannot be relied upon to operate an aircraft in accordance with the CAA and CARs and AOs so as to ensure the safety of air navigation. He too, we find, has ‘an established record of breaking and bending rules and then asserting that the problem lies with someone else’. In this matter the people he blamed are the pilots he engaged to fly helicopters without appropriate maintenance documentation, Certificate of Airworthiness or log books or even maintenance manuals. Had he recognised his share of the responsibility for the predicament in which the pilots he engaged found themselves, we would have been more likely to be persuaded that he was a fit and proper person to hold a CPL(H). It is the fact that he has throughout the proceeding tried to blame the pilots and mislead the Tribunal as to the extent of his responsibility for the proven breaches, which makes this matter similar to Re Griffiths.”
Respondent's submissions
The Respondent submitted that in the present case there is no appealable error of law pursuant to s.44 of the Administrative Appeals Tribunal Act 1975.
The findings of the Tribunal are findings of fact and essentially the issues raised by the Applicant and in particular concern about the finding that the Applicant was not a fit and proper person is a finding of fact that cannot be challenged from an appeal of this nature.
It was submitted that the finding that the Applicant was not a fit and proper person was a correct and preferable decision in all the circumstances. The only question of law which may be raised is whether the Tribunal having found that the Applicant did not satisfy the requirements of sub-regulation 5.09(1) of the Regulations is entitled to issue a pilot licence to the Applicant subject to conditions. It was submitted that the Tribunal did not have that power. The existence it was submitted of a separate power to impose conditions on a pilot licence is only relevant once a decision to issue a licence had been made.
It was further submitted by the Respondent that in any event the Tribunal, whilst able to review a decision of a primary decision maker, could not exercise the primary decision maker’s as yet unexercised power. The imposition of conditions on a licence would be the exercise of an unexercised power and beyond the power of the Tribunal. The power to issue a licence subject to conditions as in Regulation 5.11 proceeds on an assumption that the prescribed criterion in Regulation 5.09(1) have already been met. It was submitted that in the present case Regulation 5.09(3)(b) does not contemplate reference to the powers of Regulation 5.11 for the relevant matter to be considered before determining whether the prescribed requirements of Regulation 5.09(1) have been met.
Accordingly it was submitted by the Respondent that the Applicant had misconceived the operation of the statutory provisions in the present case. Once the finding that the Applicant is not a fit and proper person has been made by the Tribunal then the Tribunal it was submitted is not empowered to issue any licence to the Applicant with or without conditions.
It was submitted in the present case that the Tribunal is not bound to ignore a finding regarding the Applicant's conduct and evidence before the Tribunal. It was submitted that the Tribunal having made observations and findings which relate to the assessment of the Applicant's credit could not be ignored against the backdrop of legislation which require the Tribunal to consider whether the Applicant is a fit and proper person. It was submitted that the concept of "any other matter that relates to the safety of air navigation" has wide import and can encapsulate conduct of a person that touches upon the person's integrity and the person's ability to recognise that he/she has committed breach of the civil aviation legislation.
Counsel referred to the decision of Carr J in Ord Air Charter Pty Ltd v CASA [2000] FCA 1545 and particularly paragraph 69 where the Court states,
“(If) an airline operator exhibits a tendency of failing to comply with civil aviation legislative requirements which are not directly related to safety, it would be open to a decision maker to take that into account when assessing the risk of such an attitude of non compliance extending over into the area of safety.”
It was submitted that if the Applicant for a pilot licence exhibited before the Tribunal a tendency to mislead the Tribunal or blame others for the Applicants breaches of the civil aviation legislation then those are matters which could extend over into matters properly characterised "relating to the safety of air navigation." The Tribunal therefore was not in error in making findings that the Applicant misled the Tribunal and sought to blame other pilots for breaches of the law. Those considerations were relevant considerations for the purpose of considering "any other matters that relate to the safety of air navigation" in Regulation 5.09(3)(b).
In relation to the issue of placing no weight upon the evidence of the psychologist, it was submitted by the Respondent that the Tribunal was able to make an assessment of the probative weight of that evidence and did so expressly. The Tribunal is not obliged to accept an expert particularly when that evidence is purportedly resolving and concluding an issue of a kind that arose in the present application. See Naxakis v Western and General Hospital [1999] 197 CLR 269 at 306 [110]. It was submitted that the Tribunal is not bound to accept or defer to a matter of observation about the presentation of a witness when it is in a position to make such an observation for itself.
Reasoning
In an appeal of this kind the Applicant must demonstrate pursuant to
s.44 of the AAT Act that there is a question of law which arises from a decision of the Tribunal that in order to succeed in the application it must be demonstrated that there has been an error of law.
In relation to the first general issue as to whether the Tribunal has power to issue a commercial pilot licence subject to conditions, it is appropriate to set out s 43(1) of the AAT Act as follows:-
“(43(1)For the purpose of reviewing a decision, the Tribunal may exercise all the powers and discretions that are conferred by any relevant enactment on the person who made the decision and shall make a decision in writing:
(a) affirming the decision under review;
(b) varying the decision under review; or
(c)setting aside the decision under review and;
(i)making a decision in substitution for the decision so set aside; or
(ii)remitting the matter for reconsideration in accordance with any directions or recommendations of the Tribunal.”
It is important to keep in mind that the section does not provide broad power to the Tribunal to embark upon a wide-ranging enquiry and/or consider options which would normally be subject to the discretion of the original decision-maker. The power on review must be exercised having regard to the need for that power to be exercised for “the purpose of reviewing a decision”. To that extent it is clear in my view that if the Tribunal were to uphold the application by the Applicant in relation to the decision by the Respondent not to grant a licence then the proper course would be to set aside the decision and remit the matter back to the decision-maker for reconsideration perhaps with specific directions or recommendations of the Tribunal. (See Secretary Department of Social Security v Riley [1987] 17 FCR 99). I accept the submissions made for and on behalf of the Respondent that if the Tribunal were to make a finding that a licence should be issued to the Applicant then having made that finding the matter is remitted to the decision-maker to issue the licence and to then consider whether a licence would be issued with or without conditions. That would give the decision-maker power to then consider the issue of conditions and as a primary decision-maker exercise what would otherwise be regarded as powers yet to be exercised. I accept that in the present case it is appropriate to apply the principles referred to by Finn J in Comcare v Burton [1998] 50 ALD 846. I note and adopt the further reference made by the Respondent to the decision of Hill J in Secretary Department of Social Security v Hodgson [1992] 37 FCR 32 where at 39-40 the Court states:-
“The language of s 43 is quite clear and unambiguous. It empowers the Tribunal to exercise all the powers and discretions conferred upon the original decision-maker provided it does so for the purpose of reviewing a decision. Provided the necessary purpose is present, the power conferred upon the Tribunal is not otherwise limited. ..… Of course there must be an association between the power to be exercised by the Tribunal and the decision under review, but that association is to be found in the restriction of the grant of power in s 43(1) to the purpose of the Tribunal’s review. The test is one of relevance rather than dependence. Where the exercise of a power or discretion is relevant to the making of the decision under review then, if requested, the Tribunal may exercise a discretion.”
In the present case I accept that all that was required for the Tribunal to consider was whether the failure to issue the licence should be the subject of a successful appeal. In considering that matter the Tribunal was entitled to consider those factors including deciding whether the Applicant is a fit and proper person to hold a licence. In deciding whether the Applicant is a fit and proper person to hold a licence, the Tribunal and the original decision-maker must take into account those factors set out in Regulation 5.09(3) which include “any other matter that relates to the safety of air navigation.”
Once a decision is made that the Applicant is not a fit and proper person, then in my view even if the Tribunal had power to consider the imposition of conditions, it would be illogical and absurd for the Tribunal having found that the Applicant is not a fit and proper person to then proceed to consider the imposition of conditions. Therefore, even if I was satisfied that the Tribunal had power to embark upon consideration of the imposition of conditions in my view in the exercise of its power upon review of the decision in the present case to do so would constitute an error as the Tribunal would be considering conditions to be imposed in circumstances where the substantive issue of whether a licence should be issued has already been decided in the negative.
In my view there is no error of law in the Tribunal accepting the submission made by the representative of the Respondent whereby he submitted that placing the Applicant under conditions would not “make him into a fit and proper person to have such a licence”.
The second general issue raised by the Applicant in this appeal raises the issue of whether the Tribunal took into account an irrelevant consideration in deciding whether the Applicant was a fit and proper person. As indicated the Applicant submitted that by taking into account the conduct of the Applicant before the Tribunal or blaming other pilots who were breaching contraventions relating to the safety of air navigation the Tribunal erred.
I accept that there is authority for the proposition that an error of law may arise on the part of a Tribunal by either a failure to take into account a relevant consideration and/or to disregard irrelevant considerations. I accept that a failure to take into account a relevant consideration may be determined by construing the applicable legislation. In particular I accept the law as set out in the authorities to which the Applicant has referred namely Minister for Aboriginal Affairs v Peko Wallsend Ltd and the unreported decision of the Full Court of the Federal Court in Attorney General for Australian Capital Territory v Heiss.
As I have already found that in my view the consideration of conditions to apply to a licence would not be appropriate for the Tribunal it follows that failure to take into account the imposition of conditions could not in the circumstance of the present case constitute an error of law as a failure to take into account a relevant consideration.
I reject the submission that the facts and circumstance of the present case may in any be comparable to those referred to by the Court in the Petracaro case. In the present case the assessment of whether the Applicant is a fit and proper person is directly related to his past breaches and attitude towards those breaches which in turn relate to the issue of the safety of air navigation. This cannot be compared with a past criminal record of a bricklayer convicted of offences for dishonesty who is still able to work as a supervisor in the building industry.
The issue of the matters taken into account in determining whether the Applicant was a fit and proper person raise different and more substantive issues. In its reasoning in paragraph 138 of its decision to which I have referred it is clear that the Tribunal after an exhaustive analysis of the material was prepared to make a finding consistent with that of the Respondent that the Applicant had established a record of breaking and bending rules and asserting that the problem lies with some one else. Whilst I have reservations about the need for the Respondent to recognise his share of responsibility it is difficult to see how recognition of a share of responsibility would necessarily persuade the Tribunal that the Applicant was a fit and proper person to hold a licence. If the Tribunal found the offences were committed in breach of the Regulations then having confirmed that the breaches occurred that in my view would be sufficient to provide a proper basis to conclude that the Applicant was not a fit and proper person to hold a licence. Of course, an Applicant may, after a period of time re-apply for a licence and demonstrate through education and other matters that he has a full understanding and appreciation of his responsibilities in relation to a commercial licence and may thereby demonstrate to the issuing authority an entitlement to a licence by convincing that authority that at the time of application he has become a fit and proper person. In the present case whilst the Applicant initially sought to review the cancellation decision made on 22 August 2001 he then appears to have decided to simply make application for the issue of a licence. That of course was the subject of the reviewable decision made on 12 February 2002. It is clear that very little time has passed between the date of cancellation and the date when application was made for a new licence. I cannot discern any error of law in the Tribunal seeking to explore the basis upon which the breaches had occurred in assessing the issue of whether the Applicant is a fit and proper person. Breaches of the relevant Regulations are clearly are matters which relate to the “safety of air navigation”.
The only concern I may have in relation to the Tribunal’s reasoning is the reference to it being satisfied the Applicant may have been a fit and proper person had he recognised his share of responsibility for the predicament in which pilots he engaged found themselves and further its finding that throughout the proceedings the Applicant tried to blame the pilots and mislead the Tribunal as to the extent of his responsibility for the proven breaches. I accept that there is a risk that by merely pursuing rights which an Applicant undoubtedly has to explain his conduct, he should not then be prejudiced by a finding of the Tribunal relying on that conduct that he is therefore not a “fit and proper person”. It may however be used in the sense that there has been no demonstrated “remorse” or understanding of the significance of the Applicant’s responsibility in complying with the Regulations. That compliance includes ensuring that those engaged for and on behalf of the Applicant are able to comply with the relevant Regulations. I infer from the Tribunal’s reasons that it is a lack of remorse and/or understanding of the consequences of his behaviour and/or failure to recognise the responsibility he has which has been relied upon rather than simply disadvantaging the Applicant because he has sought to explain in some detail the breaches and/or provide what otherwise might be referred to as mitigating circumstances.
In any event whilst I have some reservations about the reasoning set out in paragraph 138 of the Tribunal’s decision, it is not sufficient in my view to vitiate the decision and nor is it sufficient to constitute an error of law. I am satisfied that the Tribunal took into account in its detailed reasoning both the nature of the breaches and the Applicant’s attitude in relation to those breaches and in doing so was considering effectively the broader issue of matters that relate to the safety of air navigation.
I accept the submission by the Respondent that that concept of “any other matter that relates to the safety of air navigation” does have very wide import and may include the conduct of a person which touches upon that person’s integrity and the person’s ability to recognise that he or she has committed a breach of the Civil Aviation legislation.
I accept and apply the passage referred to by the Respondent’s Counsel from Carr J in Ord Airline Charter Pty Ltd v CASA to which I have already referred.
The third issue relied upon by the Applicant also requires the Court to consider whether the Tribunal has failed to take into account relevant evidence namely that of the psychologist.
In considering this issue I accept the submissions on behalf of the Respondent that a Tribunal is not bound to accept expert evidence particularly in circumstances where that evidence purports to resolve and conclude the issue before the Tribunal. I note and accept the reference to the High Court decision of Naxakis v Western and General Hospital.
The Tribunal in its reasons for decision stated the following:-
“149.We have made findings as to Mr McBain’s lack of honesty, and the giving of misleading evidence, and his failure to accept responsibility for the role his breaches played in the non compliance of the pilots. Because of those findings, we place no weight on the psychologist’s report. We find that he was given only one side of the picture and did not have a full appreciation of all the issues.”
In my view the finding of the Tribunal expressed in the paragraph to which I have just referred cannot be said to constitute an error of law. It is clear the Tribunal has considered the report of the psychologist and having regard to its findings of fact has chosen to reject the conclusion of the psychologist. Although that report has been prepared by an expert, the Tribunal in an application of this kind is not bound to accept and/or act upon that report. It is bound to refer to the report and make it clear that having regard to its own findings of fact it has chosen not to rely upon that report. It has done so in the present case and I cannot determine any error of law arising from that finding.
It follows therefore that the appropriate order of the Court is that the Application be dismissed.
I certify that the preceding fifty-eight (58) paragraphs are a true copy of the reasons for judgment of McInnis FM
Associate:
Date: 14 March 2003
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