Royal Queensland Aero Club v Civil Aviation Safety Authority

[1999] FCA 1474

FEDERAL COURT OF AUSTRALIA

Royal Queensland Aero Club v Civil Aviation Safety Authority [1999] FCA 1474

INJUNCTION - interlocutory application to restrain the respondent Authority from publishing to interested parties doubts as to the validity of licences which the application for declaratory relief seeks to validate - whether such an injunction would be of any utility as matter heard in open Court and a non-publication order not sought - discussion of balance of convenience

Jackson v Stirling Industries Ltd (1987) 162 CLR 612 cited

ROYAL QUEENSLAND AERO CLUB v CIVIL AVIATION SAFETY AUTHORITY
Q 244 OF 1999

DRUMMOND J
19 OCTOBER 1999
BRISBANE

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	Q 244 OF 1999

BETWEEN:	ROYAL QUEENSLAND AERO CLUB ACN 009 660 806 Applicant
AND:	CIVIL AVIATION SAFETY AUTHORITY Respondent

JUDGE:	DRUMMOND J
DATE OF ORDER:	19 OCTOBER 1999
WHERE MADE:	BRISBANE

THE COURT ORDERS THAT:

1.Upon the Civil Aviation Safety Authority’s undertaking, that, if it writes to any person in order to inform them of its belief that any act performed by Garth Harris in reliance upon his having had a grade 1 flight instructor’s (aeroplane) rating between 30 April 1998 and 6 April 1999 is invalid because Garth Harris did not hold a grade 1 flight instructor’s (aeroplane) rating during that period, then it would also inform such persons that it has been aware since 1 April 1999 that Garth Harris did not hold such a rating and that on 28 October 1999, the Federal Court intends to hear Royal Queensland Aero Club’s application for a declaration that such activities by Garth Harris are valid notwithstanding that he did not hold a grade 1 flight instructor’s (aeroplane) rating, the application for an interlocutory injunction be dismissed.

2.The hearing of the action be held on Thursday, 28 October 1999.

3.Liberty to apply.

4.The costs of the application be reserved.

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

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	Q 244 OF 1999

BETWEEN:	ROYAL QUEENSLAND AERO CLUB ACN 009 660 806 Applicant
AND:	CIVIL AVIATION SAFETY AUTHORITY Respondent

JUDGE:	DRUMMOND J
DATE:	19 OCTOBER 1999
PLACE:	BRISBANE

REASONS FOR JUDGMENT

1. The Royal Queensland Aero Club applies for a declaration against the Civil Aviation Safety Authority that the licences and ratings issues by Garth Harris, one of its flying instructors, between 30 April 1998 and 1 April 1999 on behalf of the Civil Aviation Safety Authority are duly issued licences and ratings under the Civil Aviation Regulations.  The matter for determination is whether I should now grant the applicant an interlocutory injunction restraining the respondent until the hearing of the action from communicating the doubt the Authority has as to the validity of any such licence to any person holding a licence issued through the Club and as a result of Mr Harris’ activities.

2. Fairly extensive argument has taken place and it has culminated in the Authority offering an undertaking, if the Court is prepared not to grant the interlocutory injunction sought, in the terms just read out by senior counsel.

3. The issue raised by the claim for the declaration by way of final relief is whether the applicant Club can rely on what has been called the de facto officer rule to obtain the declaration it seeks.  The interlocutory injunction sought is one which I think the Court has jurisdiction to grant, having regard to the principles stated in Jackson v Stirling Industries Ltd (1987) 162 CLR 612, particularly at 620 ‑ 621. It can be said to be in aid of protecting the subject matter of the litigation, viz, the status of the licences in question as valid licences.

4. The delegation given by the respondent to Mr Harris to issue licences as an instructor employed by the Club was conditional on Mr Harris holding, at all times, a current grade 1 flight instructor’s (aeroplane) rating.  That rating expired on 30 April 1998.  Mr Harris did not advert to that fact at the time.  The respondent, in the meantime, issued a new delegation to him authorising him to issue a range of aviation licences on 17 July 1998, which was effective from 1 July 1998 to 30 June 1999.  That is, the new delegation was issued after his rating had expired. 

5. On 1 April 1999, Mr Harris discovered this deficiency.  He immediately notified a senior and responsible officer of the respondent.  A short while later, on 7 April 1999, he was re-tested and regained his grade 1 flight instructor’s (aeroplane) rating.  There matters rested until September 1999 when the respondent Authority appears to have become concerned at the impact on licences issued through the Club and Mr Harris by reason of the defect in his delegated authority.  The Authority raised the matter with the Club as to whether those licensees should be notified of the Authority’s concerns.  No agreement was reached.  This litigation has ensued.

6. In my view, the applicant has raised a serious question to be tried.  However, I express no view on the strength of that question.  Issues which will need to be resolved are whether Mr Harris held, by reason of his delegation, an office of the kind with which the de facto officer rule is concerned.  There also may well be an issue as to whether questions, either of standing or discretion, should lead to the Club being denied the declaration it seeks, when the rule upon which it relies to validate the licences in question is designed to protect the interests of persons obtaining those licences against third parties (which would include organisations such as insurers and the respondent Authority itself) given that the declaration here sought could not create any estoppel in favour of such third parties protective of the validity of their licences.

7. So far as the balance of convenience is concerned, in view of the long time that the respondent Authority has been aware of the problem, I do not consider that any serious issue of air safety is raised which would justify refusal of the interlocutory injunction sought, especially since the Court is in a position to offer the parties a final hearing as early as 28 October 1999.  The real question for consideration is the impact of the defect in Mr Harris’ authority to effectively issue licences on those licences which have been issued to third parties.  The position of third parties is a relevant consideration when the balance of convenience is being considered.  The respondent says it should be free to tell them now of its doubts as to the validity of their licences.

8. The defect has, however, existed, as I have mentioned, since 30 April 1998 and the Authority has known of it since 1 April 1999.  There is no evidence that it has so far been productive of any problems for licensees in conducting their flying activities.  There is no evidence that the possible exposure of third parties has, in the last few weeks, acquired an urgency that it was not perceived by either party to the action as having in the five months or so from 1 April 1999 when Mr Harris realised the problem and communicated it to the respondent Authority.  I have already mentioned that the Court can offer a final hearing to the parties next week.

9. Subject to one consideration, it therefore seems to me that the balance of convenience would favour the grant of the injunction sought.  However, the consideration I have mentioned is a powerful one.  The interlocutory injunction sought would restrain only the respondent Authority from communicating its concerns about the validity of licences to third party licensees.  The applicant Club made no application to the Court for a black-out, non-publication order designed to prevent any publication by anyone at all, including the media, of today’s proceedings.  It may well be that the Court does have such a power but, in my view, it is such an extraordinary and exceptional power that it can only rarely be exercised.

10. The fact that the Club has instituted the present action in open Court and that the Court has heard the claim for an interlocutory injunction today, in my view, makes the grant of the interlocutory injunction sought, limited as it is, of very doubtful utility indeed.  Even if it were granted, there would be no bar on anyone, other than the respondent, communicating to the public the existence of the application and what has taken place today.  That is, there would be no bar on anyone other than the Authority doing the very thing that the Club is desirous of preventing, viz, concern about the licences coming to public knowledge.  This, to my mind, is a decisive consideration against granting the injunction when regard is had to the undertaking offered by the Authority.

11. The Court’s order will therefore be, upon the undertaking by the Authority in the terms read into the record by its senior counsel, the application for an interlocutory injunction is dismissed.  I will order that the hearing of the action be held on 28 October next. 

I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Drummond.

Associate:

Dated:             27 October 1999

Counsel for the Applicant:	Mr Logan
Solicitor for the Applicant:	Barker Gosling
Counsel for the Respondent:	Mr Sofronoff QC and Mr Porter
Solicitor for the Respondent:	Mallesons Stephen Jaques
Date of Hearing:	19 October 1999
Date of Judgment:	19 October 1999