Tomkins and Anor and Civil Aviation Safety Authority
[2006] AATA 591
•4 July 2006
Administrative
Appeals
Tribunal
ORDER AND REASONS FOR ORDER [2006] AATA 591
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2006/203
| GENERAL ADMINISTRATIVE DIVISION | ) | ||
| Re | ANTHONY MYLES TOMKINS | ||
First Applicant
| AMT HELICOPTERS PTY LTD |
Second Applicant
| And | CIVIL AVIATION SAFETY AUTHORITY |
Respondent
AMENDED ORDER
| Tribunal | Senior Member B J McCabe |
| Date | 4 July 2006 |
PlaceBrisbane
THE TRUBUNAL ORDERS THAT:
The order of 30 June 2006 is set aside. Pursuant to s 41(2) of the Administrative Appeals Tribunal Act 1975:
All of the decisions that were stayed in the Tribunal’s direction dated 19 June 2006 until 30 June 2006 are hereby stayed until the final determination of the application by the Tribunal.
For the purposes of removing doubt, the approval contained in Instrument Number CASA 334/04 which was revoked on 24 March 2006 and which the respondent declined to extend or renew in its decision of 30 June 2006 is hereby extended until the final determination of the application by the Tribunal.
The parties are at liberty to apply.
……….Sgd]………
SENIOR MEMBER
CATCHWORDS
CIVIL AVIATION – application for stay of various decisions made by the Civil Aviation Safety Authority – previous stay granted – one of the decisions under review due to expire by operation of time – extent of the stay power under the AAT Act – positive orders – appropriate to stay and extend
Administrative Appeals Tribunal Act 1975 s 41(2)
Civil Aviation Act 1988 s 31, 31A
AMT Helicopters Pty Ltd and Civil Aviation Safety Authority [2006] AATA 314
Civil Aviation Safety Authority v Hotop (2005) 145 FCR 232
Dennis and Secretary, Department of Transport (1979) 2 ALD 255
Labrador Liquor Pty Ltd and CEO of Customs [2006] AATA 485
Surf Air and Civil Aviation Authority (1991) 22 ALD 118
WRITTEN REASONS FOR ORDER
| 3 June 2006 background | Senior Member B J McCabe |
These reasons relate to an application for a stay of a series of decisions pursuant to s 41(2) of the Administrative Appeals Tribunal Act 1975.
The Civil Aviation Safety Authority (CASA) decided to cancel a number of approvals and ratings held by Mr Myles Tomkins, the chief pilot and managing director of AMT Helicopters Pty Ltd. The air operator’s certificate (the AOC) was also cancelled. A number of the decisions to cancel or revoke were automatically stayed pursuant to s 31A of the Civil Aviation Act 1988 (the CAA) for a period of ninety days following the cancellation decision on 24 March 2006. The applicants sought a stay in relation to the other decisions pursuant to s 41(2) of the Administrative Appeals Tribunal Act 1975 (the AAT Act). They filed material describing, amongst other things, the hardship likely to be suffered by the applicants if the decisions were not stayed. After a hearing, I ordered a stay under s 41(2) of the AAT Act in relation to those decisions which were not subject to an automatic stay under the CAA. The stay was to last until the time when the automatic stay of the other decisions lapsed. Consideration would then be given to the question of whether a further stay should be given in relation to any or all of the decisions at that point. The stay decision is explained in AMT Helicopters Pty Ltd and Civil Aviation Safety Authority [2006] AATA 314.
The automatic stay period expired on or about 19 June 2006. A brief hearing was held on that date. Mr Logan, SC appeared on behalf of the applicant. He asked the Tribunal to use its power under s 41(2) of the AAT Act to stay all of the decisions until the dispute was heard and determined by the Tribunal. I decided it was inappropriate to do so without providing CASA an opportunity to bring any relevant material to my attention in light of the requirements imposed by s 41(4). CASA was not in a position to make submissions at the hearing. I directed the respondent to file any further material by 23 June 2006. Mr Logan said the applicants relied on the material filed in relation to the earlier stay hearing. He said he was instructed that nothing had changed, although the commercial position of the applicants was being weakened because of the ongoing uncertainty engendered by the regulatory action. I ordered that all of the decisions be stayed until 30 June 2006 to allow me to consider the matter.
The documents required under s 37 of the AAT Act were filed with the Tribunal on 27 June 2006. They were many weeks late. The respondent then wrote to the applicants’ solicitors on 28 June 2006 to advise that one of the approvals Mr Tomkins requires was about to expire. The approval is contained in Instrument Number CASA 334/04. The approval was given pursuant to sub-reg. 5.20 of the Civil Aviation Regulations 1988 (the CAR). A copy of that instrument is found at pp 443-444 of the T documents. A “marked up” copy of the instrument which excludes certain revoked delegations appears at pp 841-842. The instrument includes the following note: This instrument stops having effect at the end of June 2006.
The applicants’ solicitor wrote to CASA on 29 June 2006 to ask that the approval be either extended or renewed. The applicants also asked the Tribunal to convene a further hearing of stay. The stay hearing was held on 30 June 2006. Mr Logan and Mr Harvey of counsel appeared by telephone. Mr Harvey also provided written submissions.
Mr Harvey raised several issues in relation to the Tribunal’s power to grant a stay of the decision to revoke the approval contained in Instrument Number CASA 334/04. He pointed out that since the approval was set to expire on 30 June 2006 in any event, there was no point in issuing a stay – and therefore no power to do so under s 41(2). He questioned whether the circumstances of this case were such that the Federal Court’s decision in Civil Aviation Safety Authority v Hotop (2005) 145 FCR 232 should be distinguished. He also questioned whether the decision to cancel the approval referred to in the Instrument was a reviewable decision because the approval in question did not confer permission on someone to do something he or she would not otherwise be permitted to do.
During the course of the hearing, I discussed with Mr Harvey in particular whether CASA should be given the opportunity to respond to the applicants’ request for an extension or renewal of the approval referred to in Instrument Number CASA 334/04. Mr Harvey suggested the Tribunal should direct that CASA make a decision and respond to the applicants and the Tribunal before 5 pm. I issued a direction to that effect. Mr Logan agreed that was an appropriate course. If CASA extended the existing approval, it would remain on foot; if CASA declined to extend or renew, that decision would then come before the Tribunal and be amenable to a stay.
A delegate of CASA advised the Tribunal during the course of the day that CASA would neither extend nor renew the approval in question.
I will deal with the questions raised by Mr Harvey in relation to the issues raised in connection with the approval referred to in Instrument Number CASA 334/04 before dealing with the question of whether or not the stay in relation to all of the reviewable decisions ought to be continued.
can the tribunal order a positive stay in this case?
The Tribunal’s power to order a stay is contained in s 41(2) of the AAT Act. The power is given for a limited purpose: orders may only be made to secure the effectiveness of the hearing and determination of the application for review.
Mr Harvey argues there is little point in staying the decision to revoke the approval referred to in Instrument Number CASA 334/04. Once the approval has lapsed, there is nothing to preserve for the final hearing. The Federal Court’s decision in Civil Aviation Safety Authority v Hotop (2005) 145 FCR 232 (at paragraph 41) suggests a stay order would be inappropriate in those circumstances. In that case, Siopis J explained:
the Tribunal’s power to make orders under s 41 (2) of the AAT Act depends on the Tribunal being able to grant effective relief in relation to the impugned decision at the ultimate hearing of the review application.
His Honour went on to explain it was necessary to examine the decision under review in each case to determine whether effective relief could be granted: para. 53. This involved a characterisation process that required the Tribunal to go beyond the description applied to the decision by the decision-maker. In Hotop, the Tribunal examined a cancellation decision and determined it also had the character of a decision to refuse to renew the approval in question beyond the date upon which the cancelled decision was to expire. While there was doubt as to the Tribunal’s ability to provide practical relief in respect of a bare cancellation decision, there was no question it could provide relief at the final hearing in respect of the non-renewal decision.
Mr Harvey referred to my recent decision in Labrador Liquor Pty Ltd and CEO of Customs [2006] AATA 485. I think it is distinguishable from the situation here in any event. In Labrador Liquor, the statute provided that all licences expired on 30 June each year. The Tribunal’s hearing was destined to be heard at some point after that date, so it was impossible to provide effective relief in respect of that decision if the Tribunal took a different view at the final hearing. The applicant could not obtain an extension and it had not sought a renewal of its licence, so it was impossible to characterise the decision as a decision not to extend or renew.
In this case, there has been a request for an extension or renewal. The respondent has been put on the spot and confirmed that it would not agree to either course. I think that changes the character of the decision under review. As in Hotop, it can no longer be characterised as a bare cancellation decision. It is now also properly characterised as a refusal to extend or renew the approval. Subject to what follows, I am satisfied the Tribunal could provide effective relief at the final hearing in respect of such a decision if it formed the view it was appropriate to do so. It follows I accept the Tribunal has the power under s 41(2) to order that the approval remain in effect and be extended notwithstanding the cancellation decision and the decision not to extend or renew the approval.
is the decision in relation to the approval in question a reviewable decision?
The approval in this case was issued under CAR 5.20. Section 31 of the CAA provides that reviewable decisions made under the Act or the regulations are reviewable by the Tribunal. CAR 297A expands the power of review to cover a range of other decisions that might not otherwise be caught under s 31.
Mr Harvey points out that s 31 refers to certificates, permissions, permits or licences. He argues that a CAR 5.20 approval like the one under consideration in this case does not fall within that definition. In particular, he says a CAR 5.20 approval is not a permission because it does not permit someone to do something that would otherwise be prohibited. A pilot is always free to give lessons without an approval, albeit that the student cannot take the lessons into account in order to satisfy the training requirements imposed upon applicants for a flight crew licence. All of the other certificates, permissions, permits or licences acknowledged as being reviewable under s 31 are “fundamental instruments” which authorize someone to do something.
Mr Harvey says it may be more appropriate to treat an approval like the one under consideration in this case as being potentially reviewable under CAR 297A. CAR 297A appears to expand the category of decisions that may be reviewed. But Mr Harvey identifies a problem for the applicants in that approach: while CAR 297A refers to decisions to revoke CAR 5.20 approvals, it does not refer to the review of decisions not to approve or to impose or vary conditions. He points out approvals under some other regulations do refer to not approving or suspending approvals, which suggests the omission in relation to CAR 5.20 decisions is deliberate. He says that may be a difficulty in this case because the orders sought under s 41(2) of the AAT Act in relation to this approval are directed to the decision not to renew or extend the approval, rather than that part of the decision which merely cancels or revokes the approval.
The Tribunal must always satisfy itself that it has jurisdiction to review the decision in question. It does not have a general power of review, and it cannot assume jurisdiction with the consent of the parties. The Tribunal tends to construe the relevant legislation strictly when considering whether it has jurisdiction: see, for example, Dennis and Secretary, Department of Transport (1979) 2 ALD 255 at 260.
The Tribunal has accepted in the past that an approval may come within the definition of permit or permission for the purposes of s 31: see Surf Air and Civil Aviation Authority (1991) 22 ALD 118 at 122 per O’Connor J. (The question over whether the decision was made under the CAA, the CAR or the Civil Aviation Orders which was raised in that case does not arise here.) I think that is the right approach. While I take Mr Harvey’s point that most of the permissions referred to in s 31 are authorisations to do something that might not otherwise be permitted, I do not think that compels me to exclude approvals that merely enable something to be done (ie, permit a student to take the training provided by the approval holder into account) given the breadth of the words certificates, permissions, permits or licences.
Having concluded a decision in relation to an approval issued under CAR 5.20 appears to fall within the language of s 31, I am untroubled by the fact CAR 297A identifies particular decisions that are reviewable pursuant to CAR 297A. I do not think creating a right to appeal a particular decision under CAR 297A should exclude review of a different decision under s 31 if the different decision qualifies as a certificate, permission, permit or licence.
should orders under s 41(2) of the aat act be made in this case?
Mr Logan noted the applicants had already filed material in support of the original application for a stay. He said the applicants continued to rely on that material. He said there had been no change save that the financial position of the corporate applicant’s business had been hurt by the ongoing cloud over its reputation and by the delay in bringing the application to a hearing because of the respondent’s tardiness in filing the T documents.
The respondent was afforded the opportunity to comment on any matters that I needed to take into account. I am particularly interested in any safety concerns that have arisen after the original stay was granted. The respondent did not bring any issues of this nature to my attention.
The original stay decision is set out in AMT Helicopters Pty Ltd and Civil Aviation Safety Authority [2006] AATA 314. Given it appears nothing of substance has changed since the date of that decision, I am content to adopt the reasoning and extend the stay orders that have already been made until such time as the Tribunal can hear and determine the matters in dispute. I also order that the approval referred to in Instrument Number CASA 334/04 be extended and remain in effect until the Tribunal hears and determines the matters in dispute.
I made an order on 30 June 2006 giving effect to these reasons. After taking into account the comments of the parties made in relation to the order I have decided to issue an amended order.
I certify that the 24 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member B J McCabe.
Signed: .....................................................................................
Associate Adam Ryan
Date of Hearing 30 June 2006
Date of Order 30 June 2006
Date of Amended Order 4 July 2006
Date of Written Reasons 4 July 2006
The applicant was represented by Mr Logan, Senior Counsel.The respondent was represented by Mr Harvey, of Counsel.
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