McWilliam and Civil Aviation Safety Authority
[2004] AATA 908
•3 September 2004
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 908
ADMINISTRATIVE APPEALS TRIBUNAL Nº V2004/182
GENERAL ADMINISTRATIVE DIVISION
Re: LUKE MAXWELL McWILLIAM
Applicant
And: CIVIL AVIATION SAFETY AUTHORITY
Respondent
DECISION
Tribunal: Mr E. Fice, Member
Date: 24 August 2004
Place: Melbourne
Decision:The Tribunal dismisses the application for review in accordance with s 42B of the Administrative Appeals Tribunal Act 1975.
(sgd) E. Fice
Member
ADMINISTRATIVE APPEALS TRIBUNAL N° V2004/182
GENERAL ADMINISTRATIVE DIVISION
Re: LUKE MAXWELL McWILLIAM
Applicant
And: CIVIL AVIATION SAFETY AUTHORITY
Respondent
DIRECTION [2004] AATA 908
Tribunal: Mr E. Fice, Member
Date: 3 September 2004
Place: Melbourne
Member Fice made a decision under section 43(3) of the Administrative Appeals Tribunal Act 1975 (the Act) on 24 August 2004.
The Tribunal was notified by telephone on 3 September 2004 from the applicant’s solicitor that there is an error in the Reasons for Decision.
In accordance with s43AA(1) of the Act the Tribunal directs that the Registrar alter the text of the Reasons for Decision on page 11 by deleting Counsel for the applicant: Mr J. Langmead, SC and replacing it with the following:
Counsel for the applicant: Mr J. Langmead, SC
Mr J. Berman
(sgd) E. Fice
Member
PRACTICE AND PROCEDURE – civil aviation – application to dismiss ‑ two decisions involving two related Instruments of the Civil Aviation Safety Authority ‑ earlier appeal found that Tribunal only has jurisdiction to review one decision – no appeal sought – applicant sought review of the second decision – whether collateral purpose – whether utility in the application for review – whether frivolous or vexatious – application dismissed
Administrative Appeals Tribunal Act 1975 ss 27, 42B, 44
Administrative Appeals (Judicial Review) Act 1977 ss 5, 10(2)
Civil Aviation Act 1988 ss 9, 31
Civil Aviation Regulations 1988 reg 92(2), 152
Hamblin v Duffy (1981) 50 FLR 308
Turner v Minister for Immigration and Ethnic Affairs (1981) 55 FLR 180
Sean Investments Pty Ltd v MacKellar (1981) 38 ALR 363
Borkovic and Knezevic v Minister for Immigration and Ethnic Affairs (1981) 39 ALR 186
Attorney‑General v Wentworth (1988) 14 NSWLR 481
Re Williams and Australian Electoral Commission and The Greens (party joined) (1995) 21 AAR 467
Re Reddish and Civil Aviation Safety Authority [1999] AATA 721
Re Gowing and Civil Aviation Authority (1990) 11 AAR 411
Re Williams and Civil Aviation Safety Authority [2004] AATA 176
Re Surf Air and Civil Aviation Authority (1991) 22 ALD 118
REASONS FOR DECISION
24 August 2004 Mr E. Fice, Member
1. On 29 January 2004, the Civil Aviation Safety Authority (“CASA”) issued two related instruments dealing with the regulation of parachute operations on or in the vicinity of Barwon Heads aerodrome. Instrument N°. CASA 34/04 provided a direction to pilots in command of aircraft engaged in parachute operations within a two mile radius of the Barwon Heads aerodrome. That instrument was made pursuant to regulation 92(2) of the Civil Aviation Regulations 1988 (“the Regulations”). That sub‑regulation provides that, in relation to an aerodrome, CASA may issue directions relating to the safety of air navigation. Instrument N°. CASA 36/04 is a subordinate instrument which provides for authorisation and specifications in respect of parachute descents within a two-mile radius of Barwon Heads aerodrome. This instrument, issued under regulation 152 of the Regulations, in essence provides that parachute descents must not be made unless authorised and conducted in accordance with the written specifications of CASA. Instrument N°. CASA 34/04 also states that the directions set out in that instrument take priority over any authorisation or specification issued under regulation 152 of the Regulations, other than an authorisation or specification specifically applicable to operations at, or in the vicinity, of Barwon Heads aerodrome.
2. On 13 February 2004 CASA issued two further instruments dealing with parachuting operations at Barwon Heads. Instrument N°. CASA 63/04 revoked Instrument N°. CASA 34/04 and gave a direction to pilots in command of aircraft engaged in parachute operations to the effect that they must not permit a person to exit an aircraft to conduct a parachute descent within a two-mile radius of Barwon Heads aerodrome. Once again, this instrument takes priority over any authorisation or specification issued under regulation 152. Instrument N°. CASA 64/04 revoked Instrument N°. CASA 36/04 and set out the specification that a person must not conduct a parachute descent within a two-mile radius of Barwon Heads aerodrome. On 16 February 2004, the applicant, Mr L. M. McWilliam, applied to the Tribunal for a review of Instruments N°. CASA 63/04 and N°. CASA 64/04.
3. Mr McWilliam’s application came on for hearing on 18 February 2004 before the Tribunal on a preliminary point, that being whether, in issuing Instruments N°. CASA 63/04 and N°. CASA 64/04, CASA had made a “reviewable decision” as defined under s 31 of the Civil Aviation Act 1988 (“the Act”).
4. Upon hearing the parties on the preliminary point, Deputy President S.A. Forgie, in a written decision published on 20 February 2004 (Re Williams and Civil Aviation Safety Authority [2004] AATA 176), found that:
a.the decision to revoke Instrument N°. CASA 34/04 and to issue Instrument N°. CASA 63/04 was not a reviewable decision within the meaning of s 31 of the Act; and
b.the decision to revoke Instrument N°. CASA 36/04 and to issue Instrument N°. CASA 64/04 was a reviewable decision within the meaning of s 31 of the Act.
Neither party has sought to avail itself of the appeal provisions set out in s 44 of the Administrative Appeal Tribunal Act 1975 (“the AAT Act”). As a result they may be precluded from now seeking relief from that decision by reason of s 10(2)(b)(ii) of the Administrative Decisions (Judicial Review) Act 1977 (“the ADJR Act”) which provides:
10.(2) Notwithstanding subsection (1):
…
(b)the Federal Court or the Federal Magistrates Court may, in its discretion, refuse to grant an application under section 5, 6 or 7 that was made to the court in respect of a decision, in respect of conduct engaged in for the purpose of making a decision, or in respect of a failure to make a decision, for the reason:
(i) …; or
(ii)that adequate provision is made by any law other than this Act under which the applicant is entitled to seek a review by the court, by another court, or by another tribunal, authority or person, of that decision, conduct or failure.
5. When this matter came on for hearing before me, the position was that the principal instrument dealing with the use of aerodromes, which directed that the pilot in command of an aircraft engaged in a parachute operation could not to permit a person to exit from the aircraft to conduct a parachute descent within a two-mile radius of Barwon Heads aerodrome, was not reviewable. However, the subordinate instrument which revoked authority to conduct a parachute descent within a two-mile radius of Barwon Heads aerodrome was reviewable. Having made the finding that she did, the Deputy President, in her reasons for decision, said at para 37:
…A further question must also be asked. That is whether there can be any merit in the Tribunal’s reviewing the decision and, if not, whether the application is frivolous or vexatious within the meaning of s. 42B of the AAT Act [Administrative Appeals Tribunal Act 1975]. That question would arise from the fact that, even if Mr McWilliam were successful in having the decision to revoke Instrument 36/04 and to make Instrument 64/04 varied, the specification in Instrument in 63/04 would remain as it is not reviewable. On one view, the practical outcome could be that a person would be authorised to make a parachute descent in an area in which a pilot in command of an aircraft engaged in a parachute operation could not permit him or her “to exit the aircraft to conduct a parachute descent”. This is a question that the parties must consider.
6. I asked the parties, as a preliminary matter, to address me on CASA’s application to dismiss Mr McWilliam’s application by reason of s 42B of the AAT Act. Section 42B provides, insofar as it is relevant:
42B. (1) Where an application is made to the Tribunal for the review of a decision, the Tribunal may, at any stage of the proceeding, if it is satisfied that the application is frivolous or vexatious:
(a)dismiss the application; and
...
Parties Contentions
7. CASA contended that if the Tribunal were to review the decision embodied in Instrument N°. CASA 64/04, irrespective of the outcome of that review, Instrument N°. CASA 63/04 would remain in force. Therefore, a parachute descent could not be made within a two-mile radius of Barwon Heads aerodrome unless Mr McWilliam was able to secure the services of a pilot who was prepared to breach the direction set out in Instrument N°. CASA 63/04.
8. Further, CASA said that Mr McWilliam has disclosed an ulterior motive in seeking a review of Instrument N°. CASA 64/04. That ulterior motive, it contended, is set out in paragraph 37 of Mr McWilliam’s Statement of Facts and Contentions filed with the Tribunal. Paragraph 37 states:
37.It is accepted that it would have been preferable to have the Tribunal review not only the decision represented instrument[sic] 64/04 (regarding the authority of parachutists to jump recreationally), but also the decision represented by instrument 63/04 (regarding the authority of pilots to allow parachutists to jump from aircraft recreationally). That the Tribunal is reviewing only the decision which relates to parachutists, does not render that review futile or otherwise susceptible to dismissal pursuant to section 42B of the Administrative Appeals Tribunal Act 1975, for the following reasons:
·The principle[sic] issue to be dealt with in relation to parachutists, namely the safety of the conduct of parachute operations and aircraft operations at and in the vicinity of Barwon Heads, is the same issue upon which the decision relating to pilots rests. Accordingly, if the applicant is successful in the Tribunal in relation to instrument 64/04, it would be perverse of the respondent (as a model litigator) to refuse to recognise that an independent tribunal upon tested evidence had made a finding as to safety which of necessity dealt with both parachutists and pilots, albeit that only the instrument in relation to parachutists was within the jurisdiction of the Tribunal. Accordingly we anticipate that if the applicant is successful, the respondent will deal with instrument 63/04 in a manner consistent with the determinations of the Tribunal.
·If the applicant is successful before the Tribunal, and the respondent does not behave as we say it should in respect of instrument 64/04 [63/04], plainly the applicant would pursue relief in the Federal Court in respect of that instrument. The mere fact that the applicant is forced to pursue relief in respect of the 2 instruments in 2 separate Tribunals, does not entail the necessity that he pursue them contemporaneously. There are obvious costs benefits in seeking relief in the AAT before embarking on Federal Court proceedings.
9. CASA contended that the Tribunal had no jurisdiction to review any instrument issued by CASA and that Mr McWilliam was not a person who, pursuant to s 27 of the AAT Act, had standing to bring the application before the Tribunal. However, for the purposes of hearing argument in respect of s 42B(1)(a) of the AAT Act, I assumed there was jurisdiction and that Mr McWilliam had standing.
Considerations
10. The operation of s 42B of the AAT Act was considered by the Tribunal in Re Williams and Australian Electoral Commission and the Greens (party joined) (1995) 21 AAR 467. In that case, the applicant was a member of the Greens (WA) Inc which was a party related to the Green’s political party registered under the Commonwealth Electoral Act 1918. He sought review of a decision to approve a certain person to be the Greens’ registered officer. Subsequently, another person was substituted as a registered officer but no challenge was made to the validity of that appointment. The only challenge was made to the first appointment and it was not suggested that the invalidity of that appointment would taint the second appointment.
11. Having decided the question of standing in favour of the applicant, the Tribunal then turned its attention to the operation of s 42B of the AAT Act. The argument under this section, as in the present case, was regarding the futility of the proceedings. It was urged on the Tribunal that s 42B of the AAT Act does not exhaust the powers of the Tribunal to dismiss proceedings and that the Tribunal retained a discretionary power to dismiss proceedings which are, by reason of their futility, an abuse of process. The Tribunal held that such a proposition was questionable and made no finding as to the inherent powers of the Tribunal to control its processes, similar to those possessed by the Courts. However, the Tribunal nevertheless found that the situation fell within the provisions of s 42B of the AAT Act for the reasons that (at p 474):
…It does so not only because of the futility of the proceedings, but also because they are being pursued by the applicant for a collateral purpose — a purpose which is irrelevant to any issue which could legitimately be raised in these proceedings. Moreover that collateral purpose is itself a futile one…
12. The Tribunal also referred to the case of Attorney‑General v Wentworth (1988)14 NSWLR 481 where Roden J said at p 491:
It seems then that litigation may properly be regarded as vexatious for present purposes on either objective or subjective grounds. I believe that the test may be expressed in the following terms:
1.Proceedings are vexatious if they are instituted with the intention of annoying or embarrassing the person against whom they are brought.
2.They are vexatious if they are brought for collateral purposes, and not for the purpose of having the court adjudicate on the issues to which they give rise.
3.They are also properly to be regarded as vexatious if, irrespective of the motive of the litigant, they are so obviously untenable or manifestly groundless as to be utterly hopeless.
…
13. In ReReddish and Civil Aviation Safety Authority [1999] AATA 721 Deputy President A. M. Blow OAM, QC., dealing with an application pursuant to s 42B of the AAT Act, referred to Re Gowing and Civil Aviation Authority (1990) 11 AAR 411; Re Surf Air and Civil Aviation Authority (1991) 22 ALD 118; and Re Williams, stating at paragraph 33 that these cases:
…are all authority for the proposition that an application to this Tribunal may be dismissed on the ground that it is frivolous if the Tribunal is unable to make a decision that would be of any practical benefit to the applicant…
14. CASA submits that even if the applicant were successful before the Tribunal, there would be no practical effect because parachutists could not avail themselves of the opportunity to lawfully conduct a parachute descent within a two‑mile radius of the Barwon Heads aerodrome. It was conceded on behalf of Mr McWilliam that if he were successful in this application, it would not be that parachuting could be conducted immediately at Barwon Heads.
15. CASA also submitted that Mr McWilliam seeks review of Instrument N°. CASA 64/04 for a collateral purpose. In particular, it was submitted that if the Tribunal made a decision which was favourable to Mr McWilliam, he would use that decision to harass CASA in relation to its action in issuing Instrument N°. CASA 63/04. Although the Tribunal has previously found that the decision embodied in Instrument N°. CASA 63/04 is not reviewable, it appears that Mr McWilliam is nevertheless intent on using a favourable decision in respect of Instrument N°. CASA 64/04 to apply pressure on CASA to alter the stance it has taken in respect of Instrument N°. CASA 63/04. In my opinion, it is sufficiently clear from Mr McWilliam’s Statement of Facts and Contentions, and the submissions made on his behalf, that that is what he intends to do if he was successful in his application to review Instrument N°. CASA 64/04. To do so, in my opinion, is vexatious as that is a collateral purpose which is not relevant to any issue which could legitimately be raised in this proceeding.
16. Mr McWilliam also submitted that there was utility in reviewing the decision embodied in Instrument N°. CASA 64/04 for the reason that if he were successful on that review, and CASA did not behave in such a way as to permit parachuting operations to be conducted within a two‑mile radius of the Barwon Heads aerodrome, presumably by revoking Instrument N°. CASA 63/04 and issuing an instrument which would permit such activity, he would pursue relief in the Federal Court in respect of Instrument N°. CASA 63/04. It was submitted on behalf of Mr McWilliam that an application under s 5 of the ADJR Act would then be made on grounds that were not specifically identified. Mr J. Langmead SC, on behalf of Mr McWilliam, submitted:
…There are any number of grounds that would trigger a right to go there [The Federal Court] and would allow, perhaps, a similar enquiry but we keep stressing that the conduct of CASA to date is a strong indicator that, if this matter was dealt with favourably, that 63/04 would fall.
17. It seems to me that what was submitted on behalf of Mr McWilliam was that an inquiry under the ADJR Act would be an inquiry of a similar nature to that conducted by the Tribunal. In other words, an inquiry on the merits. However, the grounds set out under s 5 of the ADJR Act are all legal grounds and the Federal Court has stated, on a number of occasions, that its function under the ADJR Act is the same as that of a court exercising a supervisory review jurisdiction at common law. Its role is to review only the legality and not the merits of administrative action and not to substitute its own decision for that of the decision maker [see Hamblin v Duffy (1981) 50 FLR 308 at 310; Turner v Minister for Immigration and Ethnic Affairs (1981) 55 FLR 180 at 181‑183; Sean Investments Pty Ltd v MacKellar (1981) 38 ALR 363 at 370‑371; and Borkovic and Knezevic v Minister for Immigration and Ethnic Affairs (1981) 39 ALR 186 at 188‑189]. No submissions were made to me on why the decision embodied in Instrument N°. CASA 63/04 would be subject to judicial review under s 5 of the ADJR Act. Mr Langmead merely mentioned some of the grounds set out in s 5 without elaborating on why any of those might apply to Instrument N°. CASA 63/04.
18. Instrument N°. CASA 63/04 was made under regulation 92(2) of the Regulations, which requires CASA to issue directions relating to the safety of air navigation in relation to an aerodrome. Furthermore, that instrument is expressly stated to take priority over any authorisation or specification issued under regulation 152 of the Regulations. The reason for such priorities seems sound because the conduct of parachute descents to an aerodrome is only one matter of many which must be considered by CASA when it issues directions under regulation 92(2) of the Regulations. For example, limitations may need to be imposed on particular aircraft due to runway lengths; proceedings need to be established for the use of navigation aids; procedures need to be established for the use of runway lighting if any exists; radio procedures need to be established for aircraft using and transiting across a particular aerodrome; directions may need to be given regarding special take‑off and landing procedures and also circuit direction and altitudes and so on. It is CASA’s role to regulate for the safety of civil air operations in Australian territory (s 9 of the Act). Accordingly, unless there is in place an instrument issued by CASA which allows the Barwon Heads aerodrome to be used for the purpose of providing a landing area for parachutists, an instrument authorising parachute descents at that aerodrome is ineffective, and it will remain so unless the permitted use of the aerodrome is varied to allow for such operations.
19. Accordingly, no finding by the Tribunal in favour of Mr McWilliam, in respect of the subordinate Instrument N°. CASA 64/04, can be of any utility whatsoever to him unless the primary Instrument N°. CASA 63/04 is altered by CASA. As this Tribunal has already found, the decision embodied in that instrument is not reviewable on the merits. That decision has not been challenged by either party to this proceeding. An application to the Federal Court under the ADJR Act would be futile as the court would not substitute its own decision for that of CASA. It would not conduct a merits review which, in my opinion, would be the only means by which Instrument N°. CASA 63/04 would be altered.
Conclusion
20. For the reasons I have set out above, there seems to be no practical utility or benefit to the applicant in reviewing any decision embodied in Instrument N°. CASA 64/04 without reviewing the merits of the decision embodied in Instrument N°. CASA 63/04, other than utilising a favourable decision in respect of Instrument N°. CASA 64/04 for collateral purposes. Furthermore, although the matter was set down for hearing over four days, given that more than 17 witnesses were likely to have been called, it is probable that the matter would have run for far longer than the four days allocated. This would have consumed substantial resources and caused money and time to be expended on an application which has no utility. Accordingly, I consider that the application should be dismissed pursuant to s 42B of the AAT Act.
I certify that the twenty [20] preceding paragraphs are a true copy of the reasons for the decision herein of
Mr E. Fice, Member
(sgd) Olympia Sarrinikolaou
Clerk
Date of Hearing: 24 August 2004
Date of Decision: 24 August 2004
Counsel for the applicant: Mr J. Langmead, SC
Solicitor for the applicant: Messrs Grundy Maitland & Co
Counsel for the respondent: Mr I. HarveySolicitor for respondent: Mr A. Anastasi, of Civil Aviation Safety Authority
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