Yu and Civil Aviation Safety Authority

[2004] AATA 664

Administrative

Appeals

Tribunal

 

`

INTERLOCUTORY DECISION AND REASONS FOR DECISION [2004] AATA 664

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N2003/543

GENERAL ADMINISTRATIVE DIVISION	)
Re	ALBERT HO FEI YU

Applicant

And CIVIL AVIATION SAFETY AUTHORITY

Respondent

INTERLOCUTORY DECISION

Tribunal Justice Garry Downes, President

Date22 June 2004

PlaceSydney

Decision The matter is listed for hearing before Member Fice, commencing 12 July 2004.

……(sgd Garry Downes)……

President

CATCHWORDS

ADMINISTRATIVE APPEALS TRIBUNAL – constitution of Tribunal – matter part-heard –member’s appointment concludes – request for extension of term of member – Tribunal reconstituted by different member – Administrative Appeals Tribunal Act 1975 ss 20, 21 and 21A

Administrative Appeals Tribunal Act 1975 (Cth) ss 20, 21 and 21A

REASONS FOR DECISION

22 June 2004 Justice Garry Downes, President

1.      This matter is part heard before Deputy President Handley in the Tribunal.  It is an aviation matter of some complexity.  The hearing has already taken place over some five days and a further two weeks has been set aside for the hearing, beginning on 12 July.  The appointment of Deputy President Handley to the Tribunal comes to an end on or about 31 July this year.  The Governor-General in Council has already made decisions relating to appointments to the Tribunal from that date and as at, I think, 2 August 2004 another person has been appointed as the full time Deputy President attached to the Sydney Registry of the Tribunal.  It accordingly follows that from 31 July Deputy President Handley will no longer be a member of the Tribunal.

2.      Because of the complexity of this case it is not possible for Deputy President Handley to be able to give a decision before his term as Deputy President comes to an end and there is of course a risk that the matter will not conclude prior to 31 July given that the current hearing dates set aside for it continue until practically that day.  In these circumstances, it is neither constitutionally nor practically possible for Deputy President Handley to hear this case to a conclusion and determine it.  The applicant has raised the possibility that Deputy President Handley’s term might be extended.  However, I am not aware of any process that is in train at the moment which would lead to its extension.  I accept that the applicant is free to make representations to the government about an extension, but I think that the proper course for me is to proceed on the facts as they are at present.

3.      It seems to me that there is no practical possibility that Deputy President Handley will be able to continue this case.  I might have waited until after 31 July at which time necessity would certainly have required the reconstitution of the Tribunal to re-hear the matter but if I were to take that course the two weeks that have been set aside for the further hearing of the matter would be lost.  In these circumstances I have made inquiries as to whether there is another member of the Tribunal who might be able to hear the matter and I have been informed that Member Egon Fice is available to hear the matter.  Member Fice, in addition to being a lawyer, is also a former RAAF jet pilot and a commercial pilot.  He is accordingly well placed to hear the matter and he is available to hear it on the days that have been set aside in July. It accordingly seems to me that the practical and sensible resolution of a problem which is not the doing of the Tribunal is for Member Egon Fice to be appointed to continue to hear the matter. 

4. A question arises, however, as to whether it is competent for me now to reconstitute the Tribunal. It seems to me that having regard to the necessity of the circumstances, having regard to my general power to constitute the Tribunal under s 20 and s 21 of the Act and having regard to my powers to reconstitute the Tribunal set out in s 21A of the Act that I do have power to reconstitute the Tribunal in the present case. I note for example, although I recognise it is not the primary moving factor in the present case, that the matter does contain elements of public importance, to use the phrase contained in subs 21A(3) of the Act, because one of the issues in the case relates to public safety relating to the over flying of parts of Sydney by the applicant’s aircraft and I take that into account in making my decision.

5.      I also note that there is in place a stay of the original decision of CASA and although that stay has been in place for a substantial period of time it does seem to me that it is appropriate that the matter should be concluded as soon as possible.  It has been submitted to me that CASA made an application to delay the matter recently when hearing dates in the beginning of June were vacated in favour of hearing dates in the second half of July.  Although I take this into account it does not seem to me that a delay of something of the order of five or six weeks or so is particularly significant.  It may be that if the matter is now adjourned it will not be able to be heard again for a number of months. 

6. Accordingly, and in all the circumstances, I think that the proper course is for me to reconstitute the Tribunal and I do so by appointing Member Egon Fice to hear the matter commencing on 12 July. It will be a matter for Member Fice to determine to what extent material already in evidence should stand without further addition or elucidation and to make such decisions in accordance with the provisions of the Act. I note that under subs 21A(6) the Tribunal may have regard to the record of proceedings already existing.

I certify that the 6 preceding paragraphs are a true copy of the reasons for the decision herein of Justice Garry Downes, President

Signed:  ……(sgd Shamus Toomey)……
  Associate

Date of Hearing  16 June 2004
Date of Decision  22 June 2004
Counsel for the Applicant         G Flick SC
Solicitor for the Applicant          Kemp Strang Lawyers
Counsel for the Respondent     Adam Anastasi

Solicitor for the Respondent     Office of Legal Counsel, Civil Aviation Safety Authority