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Sullivan v Department of Transport

Sullivan v Department of Transport

Case [1978] FCA 48 28 June 1978

Jurisdiction

Standing

Natural Justice & Procedural Fairness

Discovery & Disclosure

Abuse of Process

Res Judicata

Administrative Law

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0rd.er.s	S. 47. l
--_I--

VG 116 of 1977

JUDGES MAi(IHG ORDER :

Smithers, Deane and Fisher JJ.

DATE OF ORDER:

28 June 1978

Melbourne

COURT ORDERS THAT :

The appeal be

all.owed.

The

matter be remit ted

to t he Administrative

Aype a1 S

Tribunal t o be relzeard.

c o s t s

and

inc iden ta l

t o t h i s appeal..

He s p o n d a t

CORAM: Smithers, Deane and	Fisher	JJ.
28th June 1378

SMITJ-ERS J .

: This i s an appeal t o the Court

from a decisiolz of t h e

Administrative Appeals Tribunal

(the Tribunal) given

on 15 Kove[;!ber '!37'

whereby the Tril>tu?al affirmed the dec is ion of

the Delegate

the Secre ta ry of t he Departmen-t of Transport of

7 March 1977

"refusing t o ' grant the applic3n.t a commercial^ p i l o t l i cence and

radiotelephone operator l icence".

The

appl icant

i s

r e fe r r ed

and determine the appeal and rray make

such order as

it t l ~ i ~ z l c s

appropr ia te by reason of

i t s dec is ion .

Tize

jurisd.ic-Lion so

exercised

i s par-t of

t h e o r i g i n a l j u r i s d i c t i o n

t h i s

Court

The circumstances

leading t o this appeal-,

the issues

which have

a r i s e n and. a summary of the proceedings

before the

Tribunal which

are under

appeal are

s e t f o r t h

i n the reasons

f o r judgment of my brother Demc which I have had the advantage

reading.

I would express my

concurrence with what i s s o s e t

f o r t h

and

adopt

the

same

€ o r re ference

these

reasons .

The grounds of appea l appear ing

'the appel lan t 's

no t i ce of

appeal

included

the

following:-

"l.

The said

decis

ion

appealed

from - .

( a )

was wrong i n law;

( b )

was agains't the evidence

and

the

weight

of evidence.

The

sa id Tr ibuna l

shou ld a t

i t s hear ing

the

30th

day

of September. 1977 -

( a )

hzve

adjourned

the hearing

t o a f f o r d

the p l a in t i f f t he oppor - tun i ty

c a l l i n g

.	as a witness , and 'Lo	ob ta in t h e evidence of
Dr. Larry Evans ;

The

sa id Tr ibunal

' S

f a i l u r e -to -

(a)	adJourn i t s proceedirigs

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Sullivan v Department of Transport

Details

AGLC: Sullivan v Department of Transport [1978] FCA 48
Case: [1978] FCA 48
Decision Date: 28 Jun 1978

CaseChat Overview and Summary

This is an appeal to the Court from a decision of the Administrative Appeals Tribunal given on 15 November 1977, whereby the Tribunal affirmed the decision of the Delegate of the Secretary of the Department of Transport of 7 March 1977 "refusing to grant the applicant a commercial pilot licence and a radiotelephone operator licence." The applicant is aggrieved by the decision of the Tribunal and has appealed to this Court. The appeal raises issues of administrative law, natural justice and the interpretation of statutory provisions. The grounds of appeal include the Tribunal's failure to adjourn the hearing to allow the applicant to call Dr. Larry Evans as a witness and its failure to give due weight to the applicant's medical history and current state of health.

The court found that the Tribunal had erred in failing to adjourn the hearing to allow the applicant to call Dr. Evans as a witness, who could have provided evidence relevant to the applicant's fitness to fly civil aircraft. The court held that the Tribunal's failure to adjourn the hearing or alert the applicant of their right to apply for an adjournment constituted a breach of natural justice. The court also found that the Tribunal had failed to give proper consideration to the applicant's medical history and current state of health, which were relevant to the question of whether a conditional licence should be granted under Regulation 57(2) of the Air Navigation Regulations.

The court allowed the appeal and remitted the matter to the Administrative Appeals Tribunal to be reheard, with costs of and incidental to this appeal.

Orders