Tomkins v CASA

[2006] FCA 1253

FEDERAL COURT OF AUSTRALIA

Tomkins v CASA [2006] FCA 1253

ADMINISTRATIVE LAW – review of decision to revoke delegation of CASA function – decision not reviewable in the AAT – delegation used in conjunction with authorisations in aviation business – decisions concerning the delegate’s aviation authorisations subject to stay order by the AAT – whether AAT’s decision a relevant consideration not taken into account – whether declaration to that effect may have utility where delegation expired

Administrative Appeals Act 1975 (Cth), s 41
Civil Aviation Act 1988 (Cth), ss 9(1), 30DA, 30DE, 31, 31A, 98(3B)

Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199 Cited
Bartlett v Weir (1994) 72 A Crim R 511 Cited
Crouch v The Commonwealth (1948) 77 CLR 339 Cited
Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 Cited
Minister for Immigration and Multicultural Affairs v Ozmanian (1996) 71 FCR 1 Cited
Soper v Australian Securities and Investments Commission (2004) 207 ALR 509 Considered
The Church of Scientology v Woodward (1982) 154 CLR 25 Cited

ANTHONY MYLES TOMKINS v CIVIL AVIATION SAFETY AUTHORITY
QUD 278 OF 2006

KIEFEL J
21 SEPTEMBER 2006
BRISBANE

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	QUD 278 OF 2006

BETWEEN:	ANTHONY MYLES TOMKINS Applicant
AND:	CIVIL AVIATION SAFETY AUTHORITY Respondent

JUDGE:	KIEFEL J
DATE OF ORDER:	21 SEPTEMBER 2006
WHERE MADE:	BRISBANE

THE COURT ORDERS THAT:

1.The application is dismissed.

2.The applicant pay the respondent’s costs of the proceedings.

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	QUD 278 OF 2006

BETWEEN:	ANTHONY MYLES TOMKINS Applicant
AND:	CIVIL AVIATION SAFETY AUTHORITY Respondent

JUDGE:	KIEFEL J
DATE:	21 SEPTEMBER 2006
PLACE:	BRISBANE

REASONS FOR JUDGMENT

1. The applicant, Mr Tomkins, is the Chief Pilot and Managing Director of AMT Helicopters Pty Ltd.  The aviation business it carries on includes the provision of helicopter training at all levels.  Prior to 24 March 2006 Mr Tomkins held approvals and ratings from the respondent, the Civil Aviation Safety Authority (‘CASA’) which enabled him to conduct the business.  AMT held an air operators certificate.  In addition, Mr Tomkins held a delegation from the Director of Aviation Safety dated 25 June 2004 (instrument number CASA334/04) made under the regulations to the Civil Aviation Act 1988 (Cth). It is not necessary to refer to the document in detail or to the functions delegated under it. It enabled Mr Tomkins to conduct flight tests at the conclusion of a student’s training. It was expressed to cease having effect at the end of June 2006

2. By letter dated 24 March 2006, signed by Mr Cook, the Manager Operations, General Aviation Operations Groups, CASA notified Mr Tomkins that the approvals and ratings held by him and the certificate held by AMT had been cancelled. The letter, some 59 pages in length, followed a process whereby Mr Tomkins and AMT were asked to show cause why certain of their authorisations should not be cancelled. It also contained a reference to the instrument of delegation and recommended that it be revoked. Mr Tomkins applied to the Administrative Appeals Tribunal to review the cancellation decisions. Some of the decisions were the subject of an automatic stay pursuant to s 31A of the Civil Aviation Act, to which I shall refer.  Those which were not, or in respect of which it was unclear whether they were subject to the provision, operated, were the subject of an application to the Tribunal for a ‘stay’ of the cancellation under s 41 of the Administrative Appeals Act 1975 (Cth).  The Tribunal granted a stay of all but one of the decisions on 31 March 2006 and later ordered a stay with respect to the remaining matter.  The hearing of the application for review is scheduled to be heard by the Tribunal at the end of this year.

3. By letter dated 28 April 2006, the Director of Aviation Safety notified Mr Tomkins that the instrument of delegation was revoked.  It appears this followed upon an initial notice to show cause why the instrument should not be revoked, given on 23 September 2005, and a supplementary show cause notice of 20 December 2005, to which Mr Tomkins’ solicitors responded.

4. The Administrative Appeals Tribunal does not have jurisdiction under the terms of the Civil Aviation Act (s 31) to review a decision to revoke a delegation and consequently no application to stay that decision was sought from it.  The delegation came to an end on 30 June 2006, according to its terms. 

5. Mr Tomkins applies to this Court for the review of the decision to revoke the delegation on the basis that there had been a failure to take into account three relevant considerations:

   ‘(a)      that the findings of fact upon which the revocation decision was made were the subject of then pending administrative review proceedings brought in the Administrative Appeals Tribunal by the Applicant and AMT;
   (b)      that the operation of the decisions the subject of those review applications were the subject of stay orders made by the Administrative Appeals Tribunal;
   (c)       that the delegation the subject of this proceeding and the licences or authorities the subject of the proceedings in the Administrative Appeals Tribunal formed an integrated whole pursuant to which AMT had hitherto and might reasonably in the future be expected to carry on its business;’

6. It is now conceded that no remitter could be ordered if Mr Tomkins made out his grounds for review, but a declaration is sought in terms of these grounds. It is put against Mr Tomkins, by CASA, that the declaration has no utility. At the commencement of the hearing of this application Mr Tomkins applied for an amendment to his application to seek review of a further decision, alleged to have been made by the Director, not to issue a further delegation at least until the outcome of proceedings in the Tribunal. That application was refused for the reason that the evidence upon which it was based was inadmissible, as relating to settlement negotiations between the parties, and s 131 of the Evidence Act 1995 (Cth) did not apply to it.

   The Statutory Provisions

7. Section 31 of the Civil Aviation Act provides for review of a reviewable decision by the Tribunal. A reviewable decision is defined by the section and includes the cancellation of permits, licences and authorisations. Section 31A was included by the Civil Aviation Amendment Bill 2003, and provides for an automatic stay of certain reviewable decisions. It applies where CASA is obliged to give a show cause notice to the holder of the civil aviation authorisation in question prior to making the decision (subs (1)). The stay is of a short duration, in which time the holder must apply to the Tribunal if the stay is to continue in effect for the period mentioned in s 31A(5) (see subs (4)). Prior to the end of that period the holder may apply to the Tribunal for an order for a stay under s 41(2) of the Administrative Appeals Tribunal Act (subs (7)).  That subsection  provides that the Tribunal may:

   ‘…make such order or orders staying or otherwise affecting the operation or implementation of the decision to which the relevant proceeding relates or a part of that decision as the Tribunal considers appropriate for the purpose of securing the effectiveness of the hearing and determination of the application for review.’

8. In submissions for Mr Tomkins reference was made to the provisions of Div 3A of the Civil Aviation Act, which were also the subject of the 2003 amending Act. They were said to be relevant because they were not employed in the present case. Section 30DC provides that an aviation authorisation may be suspended where CASA has reason to believe that the holder has engaged in, is engaged in, or is likely to engage in, conduct that constitutes, contributes to, or results, in a serious and imminent risk to air safety. When CASA does so it is obliged, within the periods specified by s 30DE, to apply to this Court for an order prohibiting the holder of the authorisation from doing anything that is authorised by it.

9. The submissions for Mr Tomkins also relied upon statements in the Explanatory Memorandum with respect to the 2003 Bill concerning the changes to CASA’s enforcement regime.  The automatic stay provision was said to be intended to balance ‘enhanced fairness with maintaining a high standard of aviation safety’.  This new approach to enforcement would ensure that resources were not wasted on purely technical contraventions that did not significantly affect safety.  The right to seek a merits review from an impartial decision-maker was a primary consideration in the enforcement process, except where there was an immediate serious threat to passengers, it was said.  There was a need for prompt and independent reviews.  It was observed that delays in review might cause financial problems because of the authorisation holder’s inability to conduct their business.  The automatic stay provisions would enable their business to continue.  A reduction in the unilateral nature of the exercise of cancellation powers by CASA was thought to be necessary.

10. CASA’s functions under s 9(1) of the Civil Aviation Act include the conduct of the safety regulation of civil air operations in Australia. They include the issuing of certificates, licence and permits. Section 98(3B) provides that nothing prevents the making of regulations for the delegation of those functions to a person other than a member or officer of CASA. Regulation 7 of the Civil Aviation Regulations provides that the Director may delegate CASA’s powers and functions to a person and that a delegation may be made subject to conditions that are necessary in the interests of the safety of air navigation.

    The Tribunal’s Decision on the Stay

11. The Tribunal considered three matters as relevant to the question whether a stay ought to be ordered of each of the decisions in question:

    ·           The prospects of success of the applications for review of the decisions;

    ·The hardship to the applicant and other parties affected by the decision if the stay orders are not made;

    ·           Whether public safety is likely to be imperilled if the stay orders are made.

12. The Tribunal observed, with respect to the first of those matters, that it was not necessary to conduct a mini-trial of the issues, which was just as well because the evidence was still being collated and there were said to be factual disputes between the parties.  The Tribunal considered that the refusal of a stay would have a serious impact upon the business, Mr Tomkins, employees and customers.  The third concern, that of public safety, was regarded by the Tribunal as most important.  The Tribunal was however satisfied that public safety would not be imperilled if the applicants were allowed to continue flying operations.  Whilst the Tribunal member had some hesitation in permitting Mr Tomkins to continue instructing student pilots while the review proceeded it found that he would not endanger students.  For those reasons a stay of the decisions was ordered.

    The decision to revoke the delegation

13. The recommendation of Mr Cook, to cancel the delegations, has already been mentioned.  It was contained in the same letter, dated 24 March 2006, which advised Mr Tomkins of the cancellation of the other approvals, ratings and certificate.  It appears to have arisen out of the same maters listed in the letter as relevant to the cancellation decisions.  On 3 April 2006 Mr Cook wrote to Mr Ilyk, General Counsel of CASA, in connexion with the instrument of delegation.  He referred to the cancellation of Mr Tomkin’s approvals and AMT’s air operator’s certificate and the fact that the Tribunal had stayed the decisions, other than those automatically stayed, for a period to coincide with the automatic stays.  By way of ‘background’ he said:

    ‘The company, AMT Helicopters Pty Ltd came to CASA’s attention as a result of a complaint by the New South Wales Environmental Protection Authority in June 2004 that the AOC was being used by Rawley Helicopters Pty Ltd under the control of Justin Rawley to carry out unauthorised commercial operations. Initial investigations disclosed that Justin Rawley did not have a class 1 medical certificate after September 2003 but continued to fly commercial operations from 16 September 2003 to 2 August 2004. The investigators also received complaints in relation to unrecorded time and services on maintenance releases for the company’s helicopters used in the mosquito spraying for local Caboolture, Redcliffe and Pine Rivers Shires (NEMMO contract).’

    Under ‘reasons for recommendation’ he said that:

    ‘The allegations against AMT and Myles Tomkins are particularly serious in terms of aviation safety in that AMT is responsible for engendering a culture of non-compliance and ‘short cutting’ on flying training amongst a number of young pilots, students and employees.’

    He was satisfied there was adequate evidence available to support the recommendation.  This recommendation was further supported by the Group General Manager in a note to Mr Byron.  Mr Byron is both the Director of Aviation Safety and Chief Executive Officer of CASA.  The note was in these terms:

    ‘…I note that the matters given rise to the administrative actions are now subject to AAT review. I have read the attached documents and formed the view that at best, CASA has lost confidence in Mr Tomkins’ ability to conduct the delegated powers to our satisfaction. Delegation to industry is worthy and proper if it is managed in a way to insist on the highest, ethical, technical and administrated standards. In my view Mr Tomkins alleged conduct does not meet these standards and therefore I support the recommendation.’

14. In the memo to the Chief Executive Officer from Mr Ilyk which contained that note reference was made to the effect of the AAT stay order, noting that there was no AAT review of decisions to revoke the appointment of a CASA delegate.  No reference is made to the reasons for the stay decision.

15. The Director provided a statement of reasons for the decision of revocation by letter dated 16 June 2006.  In that part of the reasons under the heading ‘findings on material questions of fact’ he said that he had adopted the findings of fact set out in the decision by Mr Cook, in the letter dated 24 March 2006.  The ‘evidence or other material on which these findings were based’ included Mr Cook’s decision and the minute of Mr Ilyk of General Counsel.  The ‘reasons for decision’ were in the following terms:

    ‘12.Under CAR7, I delegated to Anthony Myles Tomkins CASA’s powers as set out in instrument CASA 334/04. A delegate exercises CASA powers and functions and is a representative of CASA in the aviation industry. CASA may also be legally responsible for the actions of its delegates when exercising their functions and powers on behalf of CASA.

    13.As a delegate of CASA, and the holder of a Commercial Pilot (Helicopter) licence and a Grade 1 agricultural pilot (helicopter) rating; Anthony Myles Tomkins was required to comply with all applicable provisions of the Civil Aviation Act 1988, Civil Aviation Safety Regulations 1988 and the Civil Aviation Orders.

    14.On the basis of the findings concerning Anthony Myles Tomkins by Mr Cook which I adopted, I was satisfied that:

    (i)Mr Tomkins had not complied with provisions of the CAR, namely that:

    (a)contrary to CAR 43B as pilot-in-command he had failed to record total time-in-service on aircraft maintenance releases for aircraft operated by AMT Helicopters Pty Ld and had commenced flights on the following dates without maintenance, namely daily inspections, being certified in accordance with CAR 42ZE, in contravention of CAR 133(1)(d):

    30.10.03     27.11.03      22.1.04     27.1.04        10.2.04
    24.11.03     7.12.03        23.1.04     4.2.04
    26.11.03     20.1.04        24.1.04     9.2.04

    (b)contrary to CAR 5.52. Mr Tomkins failed to record flight time in his personal logbook on 4/3/03; 22, 23, 24 and 27/1/04; 4, 9 and 10/2/04; 23/6/04 and 23/7/04;

    (ii)Mr Tomkins orchestrated a policy whereby five pilots employed by AMT Helicopters Pty Ltd systematically breached CAR 43B by under-recording time-in-service on maintenance releases of helicopters operated by AMT Helicopters Pty Ltd engaged in NEMMO mosquito spraying contracts thereby putting at risk the airworthiness of the aircraft concerned and the safety of persons engaged in subsequently operating or being carried on such aircraft;

    (iii)Mr Tomkins was either a party to unauthorised flying training provided to student pilots, namely Matthew Erceg, John Wotherspoon, Andrew Kerr, Peter Underhill and Hamish Judson, or failed to supervise the Instructors employed by AMT Helicopters Pty Ltd, all of whom were under his control and supervision;

    (iv)Mr Tomkins will not comply with, and conduct flying training and tests to the standards required of, the Civil Aviation Regulations and Orders;

    (v)It was in the interests of aviation safety that section 2 of Instrument 334/04 be revoked.

    15.      Accordingly I revoked section 2 of instrument CASA 334/04.

    The Application

16. Each of the three stated grounds relies upon the ground for review that the decision-maker, here the Director of Aviation Safety, has failed to take into account a relevant consideration.  That consideration is said to be the Tribunal’s decision to stay the cancellation decisions and the reasons for that decision.  In Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 39 – 40 (‘Peko-Wallsend’), Mason J considered this ground.  As Hely J observed in Soper v Australian Securities and Investments Commission (2004) 207 ALR 509 at [33], by reference to Peko-Wallsend, the ground is only made out if it is shown that the decision-maker has failed to take into account a consideration which he or she is bound to take into account in order to validly exercise the power given.  What is a mandatory relevant consideration is determined by the construction of the statute in question.  Where a power is cast in very general terms, it is usually left to the decision-maker to decide what is relevant and what is not. 

17. It is not conceded by CASA that the Director did not take the decision of the Tribunal and its reasons into account.  A distinction must be drawn between an apparent awareness of a factor and the use of it in the use of the decision-maker’s reasoning process.  It is the latter with which the ground for review is concerned.  Here it formed no part of the Director’s reasoning, even if the papers before him contained reference to the fact of the decision as part of their background information.  The Director’s decision was based upon the events narrated by Mr Cook and what was to be drawn from them in connexion with the subject matter of the delegations. 

18. The question whether the Director was bound by the Civil Aviation Act  and the regulations to take into account the Tribunal’s determination on the stay may be approached by reference to the roles each is given by the Act and the purpose of the stay in connexion with the matter before the Tribunal.  It is submitted for Mr Tomkins that there is a necessary intersection between the stay provisions and the Director’s task, or the delegation with which the Director was concerned.  It is also argued that the Tribunal forms part of a continuum of administrative decision-making under the Civil Aviation Act and that it has a position such that regard must necessarily be had by the Director to its decisions. 

19. The submissions concerning the place of the Tribunal in the decision-making hierarchy set up by the Civil Aviation Act ignores the fact that the Tribunal has no role in connexion with the revocation of a delegation.  The two areas for decision-making are separate and distinct from each other.  It is those decisions made by CASA which are subject to review by the Tribunal which are subject to the exercise of its further powers to stay the effect of them.  Where a stay is granted that will have obvious implications with any further dealings by CASA with those matters.  In that circumstance it may be expected that CASA will not act in such a way which would subvert the effect of that order.  The revocation of a delegation is not subject to review by the Tribunal and its powers to grant stays cannot be applied to it.  It is difficult therefore to infer that the Director ought to have regard to the decision and findings made by the Tribunal on the grant of a stay.  If any obligation arises it must be because the matters with which the Tribunal is concerned are made relevant by the Civil Aviation Act to the delegation and its revocation by the Director. 

1. In submissions for Mr Tomkins it was sought to treat the delegation as inextricably linked with the other authorisations.  This is however to approach the matter from Mr Tomkin’s perspective, by what he considers is necessary for his business.  The Civil Aviation Act does not connect them.  They are different in nature.  Aviation authorisations, such as approvals, licences and rating, are something to which a person or company may be entitled if they qualify for them and maintain certain standards.  They are in the nature of the right and may be used in connexion with the business.  The Civil Aviation Act recognises this in its provisions for stays of decisions cancelling them.  A delegation, on the other hand, is of particular functions of CASA itself.  It is considerations of safety and as to how the functions of the subject of the delegation have been carried out that are to guide the Director’s discretion.  It cannot be said that the effect of revocation of the delegation upon a person’s business is relevant those questions.  It cannot therefore be inferred that the statute requires it to be addressed. 

2. In other parts of the submissions reliance was placed upon the fact that the Director drew from the same body of evidence as was relevant to the aviation authorisations  The submission might assume more importance if a ground for review was unreasonableness.  It was pointed out that the Tribunal had found that safety would not be put at risk by staying the effect of the decisions cancelling the authorisations.  It could not however be suggested that the Director was bound to take the Tribunal’s opinion into account.  To the contrary the Director was obliged to answer the questions arising in connexion with the delegation for himself.

3. In my view the Director was not obliged to take the Tribunal’s decision into account in deciding whether the delegation should be revoked.  The ground for review fails.

4. The question of the utility of the declaration sought has become hypothetical and relevant only to a foreshadowed application for indemnity costs.  The question was raised early in the proceedings because the delegation revoked would have expired in any event before the proceedings were brought.  The Director could have not been required to consider the matter had Mr Tomkins established that he had failed to take into account a relevant consideration.  The question would not have arisen again for the Director unless and until Mr Tomkins was successful in the proceedings before the Tribunal, I was informed.  It was only at that point that he would seek a new delegation.

5. The justification for the declaration was put on two bases.  It was said that it would address an apparent misconception, on the part of CASA and the Director, about their statutory function.  Alternatively it might address any adverse impact upon Mr Tomkin’s reputation by reason of the decision.  In relation to the former I was referred to decisions such as TheChurch of Scientology v Woodward (1982) 154 CLR 25 at 71 and Crouch v The Commonwealth (1948) 77 CLR 339 at 359 and a decision in which they are discussed, Bartlett v Weir (1994) 72 A Crim R 511 at 525. Declarations have been made where there is no alternative remedy and a person’s reputation has been adversely affected by the unlawful conduct in question. I have previously considered these authorities in Minister for Immigration and Multicultural Affairs v Ozmanian (1996) 71 FCR 1 at 31 – 33 (and see also Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199 at 288, at [223] per Callinan J).

6. It is not apparent to me that the cases have in mind the making of a declaration of the kind here in question, identifying an error on the part of a decision-maker.  This is especially so if the basis for it, in connexion with proper administration, is said to be one concerning the wider public interest.  So far as concerns the parties themselves, a declaration might identify a course of conduct for the Director with respect to a future application.  If that were a sufficient basis for a declaration, a matter about which I have some doubt, it is not certain that that application will be made or that the consideration said to be relevant would arise in the same setting.  If there be an impact upon Mr Tomkin’s reputation in the aviation industry I would not think it likely to have been caused by the error forming the ground for review and therefore unlikely to be vindicated by a declaration as to it.  I will hear the parties shortly upon the matter if the foreshadowed application is made. 

7. The application will be dismissed with costs.

I certify that the preceding twenty-six (26) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Kiefel.

Associate:

Dated:        21 September 2006

Counsel for the Applicant:	Mr J A Logan
Solicitor for the Applicant:	Cooper Grace Ward Lawyers
Counsel for the Respondent:	Mr I Harvey
Solicitor for the Respondent:	Civil Aviation Safety Authority
Date of Hearing:	12 September 2006
Date of Judgment:	21 September 2006