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

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
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…

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 Tomkins v CASA

Details

AGLC: Tomkins v CASA [2006] FCA 1253
Case: [2006] FCA 1253
Decision Date: 21 SEPTEMBER 2006

CaseChat Overview and Summary

The matter before the Tribunal involved Mr Tomkins and the Civil Aviation Safety Authority (CASA). The dispute centred around the revocation of Mr Tomkins' delegations and the cancellation of his approvals, ratings, and certificates. Mr Tomkins sought a stay of CASA's decisions pending a review by the Administrative Appeals Tribunal (AAT). The Tribunal was tasked with determining whether to grant a stay of the revocation and cancellation decisions and whether public safety would be endangered if the stay was granted.

The primary legal issues the Tribunal had to address were whether the grant of a stay would have a serious impact on Mr Tomkins' business, employees, and customers, and whether public safety would be compromised if the stay was granted. The Tribunal also had to consider whether Mr Tomkins would endanger students if he continued instructing them during the review process. The evidence presented indicated ongoing disputes between the parties and concerns about non-compliance and safety issues.

The Tribunal found that while the refusal of a stay would significantly impact Mr Tomkins' business, employees, and customers, the most critical concern was public safety. The Tribunal concluded that public safety would not be imperilled if Mr Tomkins continued his flying operations. Additionally, the Tribunal determined that Mr Tomkins would not endanger students if he continued instructing them. Therefore, the Tribunal ordered a stay of the revocation and cancellation decisions, except those automatically stayed, to coincide with the automatic stays.

No further orders were made by the Tribunal beyond the stay of CASA's decisions. The application to dismiss the matter was ultimately dismissed, and Mr Tomkins was ordered to pay CASA's costs of the proceedings.

Orders

Orders of the court

1. The application is dismissed.

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

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

KIEFEL J

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 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.’

Ratio Decidendi

Legal Principle Established

Established by: KIEFEL J

Full text does not contain this section.

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

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

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