Pudniks and Civil Aviation Safety Authority

[2022] AATA 2125

Pudniks and Civil Aviation Safety Authority [2022] AATA 2125 (27 May 2022)

Division:GENERAL DIVISION

File Number(s):      2021/5950

Re:Pudniks

APPLICANT

AndCivil Aviation Safety Authority

RESPONDENT

DECISION

Tribunal:Deputy President B W Rayment OAM QC

Date:27 May 2022

Place:Sydney

The Tribunal does not have jurisdiction in respect of the application for review lodged by the applicant on 25 August 2021.

....................[sgd]....................................................

Deputy President B W Rayment OAM QC

CATCHWORDS

PRACTICE AND PROCEDURE - jurisdiction – whether a reviewable decision was made by CASA – no refusal to grant a permission, permit or licence granted or issued under Part 149 of the Civil Aviation Safety Regulations 1998, no jurisdiction.

LEGISLATION

Administrative Decisions (Judicial Review) Act 1977
Civil Aviation Act 1988

Civil Aviation Safety Regulations 1998

REASONS FOR DECISION

Deputy President B W Rayment OAM QC

27 May 2022

1. The respondent submits that the Tribunal has no jurisdiction to entertain the application made by the applicant because no reviewable decision has been made by the respondent.

2. The matter came before me at an Interlocutory Hearing.  In that hearing I directed the filing by the parties of further documents by both parties so as to enable me to dispose of the jurisdictional point.  I indicated that when those documents had been filed, I would consider them and decide whether to have any further hearing on the issue, having then also taken into account written submissions made by both parties before the directions hearing.

3. Mr Pudniks, through his company Digital Plastics Pty Ltd, applied to CASA under Part 149 of the Civil Aviation Safety Regulations 1998  (the CASR) to perform aviation administration functions. After an exchange of correspondence a copy of which has been provided to the Tribunal, CASA wrote a letter dated 27 May 2021 which Mr Pudniks submits, and the respondent denies, contains a reviewable decision capable of being made the subject of an application to the Tribunal by Mr Pudniks, including an application for extension of time to bring the application.

4. By the letter of 27 May 2021 CASA stated that it had conducted a more formal review of the documents which had been provided to it by Mr Pudniks, and that those documents did not contain at the very least, certain documents duly completed.  The letter indicate that CASA would, on receipts of a completed application, provide Mr Pudniks with a fee estimate for progressing the application and then respond to the application itself, by accepting or rejecting it.

5. The letter also notified Mr Pudniks that it had been informed that on 18 May 2021 the NSW Police attended the Blackheath paragliding launch site where Mr Pudniks was observed by the police to be setting up a paraglider aircraft in readiness for him to launch at that site.  The letter drew attention to the provisions of s.20AA(1) and s.20AB (1) of the Civil Aviation Act 1988 and stated that by reg 11.055 of the CASR, the respondent was entitled to take into account in considering the application which was pending, his record of compliance with regulatory requirements and similar matters. That suggestion led Mr Pudniks to suggest to CASA that such a matter was irrelevant to its consideration of the pending application.

6. The question before the Tribunal at present is one only: Has CASA made a reviewable decision. The Tribunal has no judicial power and cannot entertain the jurisdiction of a Court, for example under s.6 of the Administrative Decisions (Judicial Review) Act, 1977. Under that provision, a court may review conduct relating to a decision in certain circumstances.

7. The Tribunal has no such jurisdiction. It has two relevant powers: to review a reviewable decision as defined in s.31 of the Civil Aviation Act, 1988, and the right conferred by item 1 of table 201.004 of the CASR. The definition in s.31 of the Civil Aviation Act, 1988 does not extend to any matter such as may be dealt with by a court under s.6 of the Administrative Decisions (Judicial Review) Act, 1977. 

8. In short, in my opinion, only if the letter of 27 May 2021 had amounted to a refusal to grant a permission, permit or licence granted or issued under Part 149 of the CASR could the Tribunal have jurisdiction to entertain Mr Pudniks’ present application. It does not amount to such a refusal. Mr Pudniks’ submissions in an email dated 21 September 2021 do not, as I read them, suggest the contrary.

9. The Tribunal accordingly has no jurisdiction in this matter.

I certify that the preceding 9 (nine) paragraphs are a true copy of the reasons for the decision herein of Deputy President B W Rayment OAM QC

...........................[sgd].............................................

Associate

Dated: 27 May 2022

Date(s) of hearing:	24 September 2021
Applicant:	In person
Solicitors for the Respondent:	Civil Aviation Safety Authority