McPherson v Civil Aviation Authority

[1991] FCA 941

FEDERAL COURT OF AUSTRALIA

McPherson v Civil Aviation Authority [1991] FCA 941

Administrative Appeals Tribunal - Stay of decision - Relevant factors - Public interest - Administrative Appeals Tribunal Act 1975 (Cth) s 41.

Civil Aviation - Suspension of pilot's license - Review - Stay of decision -Relevant factors.

DARREN MCPHERSON v CIVIL AVIATION AUTHORITY

VG 40 OF 1991

RYAN J
14 MARCH 1991
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VG 40 OF 1991

ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL

BETWEEN:	DARREN MCPHERSON Applicant
AND:	CIVIL AVIATION AUTHORITY Respondent

JUDGE:	RYAN J
DATE OF ORDER:	14 MARCH 1991
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1.The applicant have leave to amend the notice of appeal in such manner as he may be advised.

2.Any amended notice of appeal be filed and served by 18 March 1991.

3.There be indexed in the appeal papers the transcript of the hearing before the Tribunal, the decision of the Tribunal of 14 February 1991, and the amended notice of appeal, together with a copy of such papers other than those specified above which have been forwarded to the Registry by the Tribunal in accordance with O 53 rule 10(1), and an index to the appeal papers.

4.Five copies of the appeal papers be prepared and that two copies of such appeal papers be supplied to the respondent.

5.In default of agreement between the parties as to the index to the appeal papers, a draft index be submitted for settling by Ryan J, by the applicant, by 20 March 1991.

6.The applicant supply to the solicitor for the respondent by 22 March 1991 a statement of the contentions of law on which he proposed to rely at the hearing, and the respondent supply to the solicitor for the applicant a statement of its contentions in reply by 10.00 am on 25 March 1991.

7.The application be fixed for hearing before a single Judge at Melbourne at 10.15 am on 25 March 1991.

8.The applicant pay the respondent’s costs of the motion on notice dated 8 March 1991 and that the costs of both parties of this day be otherwise reserved.

Note:   Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VG 40 OF 1991

ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL

BETWEEN:	DARREN MCPHERSON Applicant
AND:	CIVIL AVIATION AUTHORITY Respondent

JUDGE:	RYAN J
DATE:	14 MARCH 1991
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

1. The applicant lodged an appeal against a decision of the Administrative Appeals Tribunal upholding a decision of the respondent to suspend his pilot's license but reducing the period of suspension from 18 to 6 months. The applicant sought an order from the court to stay the decision of the tribunal which it was said would have the effect of staying the decision of the respondent thereby allowing the applicant to resume flying. It was asserted that to do otherwise would effectively mean that the suspension would have run its course before the appeal was heard. The applicant would thus suffer hardship if the order were not made.  Ryan J, rejecting the application, said:

2. Even if I had been able to conclude that the applicant had a reasonable prospect of success, on one or other of the questions of law which he apparently seeks to raise, I would have been reluctant to grant a stay which had the effect of allowing the applicant any interim license to fly as a commercial pilot.

3. There is a manifest public interest in ensuring that judgments as to the fitness of a person to fly passengers for reward should be made by those with the technical knowledge and experience to make an informed assessment of the risks involved.

4. In my view it would require a strong prima facie demonstration that a decision to suspend such a license was totally unreasonable in the sense of being without foundation in fact or law for this Court to override, even temporarily, the view of the Civil Aviation Authority, or the Administrative Appeals Tribunal constituted as the present tribunal partly was by members with special expertise in this area.

5. As I have already indicated, the present applicant has not given such a demonstration. I am also inclined to discount the inconvenience to the applicant which a refusal of a stay will entail, because of the prospect that this court can afford a hearing of this application within a matter of 2 or 3 weeks, if the applicant so desires. Counsel for the respondent have indicated the readiness of their client to facilitate an expedited hearing within that time frame.

6. For these reasons the application for a stay must be refused.

I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Ryan.

Associate:       (sgd Amanda O’Brien)
Dated:       14 March 1991

Counsel for the Applicant:	Mr P Rose
Counsel for the Respondent:	Ms A M North QC with Mr G G A Nettle
Date of Hearing:	14 March 1991
Date of Judgment:	14 March 1991