Anderson v Civil Aviation Safety Authority

Federal Court of Australia|2013-12-17|Before: Jagot J

questionS OF LAW 1 The applicant, John Anderson, contends that three questions of law arise in respect of a decision of the Administrative Appeals Tribunal (the Tribunal) affirming a decision of the Civil Aviation Safety Authority (CASA) to cancel Mr Anderson's commercial pilot (helicopter) licence. 2 The three questions of law are: 1. Whether the Tribunal was empowered to affirm the decision of CASA made under regulation 269(1)(a) of the Civil Aviation Regulations 1988 and/or whether CASA was empowered to make the decision made under regulation 269(1)(a) of the Civil Aviation Regulations 1988 to cancel the air crew licences held by the appellant in circumstances where the appellant has not been convicted by a Court of a breach of either the Civil Aviation Act 1988 or the Civil Aviation Regulations 1988). 2. Whether the Tribunal erred in law in that it took into account an irrelevant consideration namely whether or not the appellant had provided untruthful information to the Department of Veterans Affairs as set out in paragraphs [72] - [76] of the reasons for its decision. 3. Whether the Tribunal erred in law in that it failed to take into account a relevant consideration namely the hardship that the appellant would endure in the event of the cancellation of his licence.

QUESTION 2 (IRRELEVANT CONSIDERATION) 10 The Tribunal explained precisely why it considered this matter to be relevant to the decision whether Mr Anderson was a fit and proper person. As the Tribunal explained: • "The regulation of aviation in Australia rests heavily on a system of self-reporting by those conferred with the privilege of holding a licence under the Act. The need for candour in such a system is self-evident" (at [115]). • The inescapable fact is that Mr Anderson told the Department of Veterans Affairs that he ceased full time employment in December 2005 and was then being paid nothing. In fact, he was working in New Guinea and the company of which he was the sole director was being paid for his work. Mr Anderson, the Tribunal inferred, provided false information to the Department for his personal gain (at [72] to [76]). • This finding, accordingly, became relevant to the Tribunal's assessment of the answer to the "more difficult question…whether there is a sound basis to be confident that in his future dealings with CASA and/or DAMEs [Designated Aviation Medical Examiner], Mr Anderson will disclose all relevant information especially where he perceives that to do so might be contrary to his interests" (at [115]). 11 There is no basis for concluding that the issue of false information to the Department was an irrelevant consideration to the question under reg 269(1)(d). The fact, if it be the fact, that the Department has not complained about the information, is immaterial. The Tribunal was entitled, indeed bound, to decide the matter on the material available to it. That material persuaded the Tribunal that Mr Anderson had provided false information to the Department to advance his own interests. That, along with other conduct of Mr Anderson in not having disclosed his medical conditions, which the Tribunal also found was done to protect his own interests, was directly relevant to the question of Mr Anderson's fitness to hold a licence. 12 Question 2 thus must be answered "No".

QUESTION 3 (HARDSHIP) 13 Mr Anderson adduced evidence that he would suffer hardship if his licence were cancelled. It was contended on his behalf that this was a consideration the Tribunal was bound to take into account, not in deciding whether Mr Anderson was a fit and proper person, but in deciding to cancel his licence rather than, for example, varying or suspending his licence. 14 CASA contended that far from being a relevant consideration, hardship to the licence holder was an irrelevant consideration which the Tribunal was precluded from taking into account. 15 I do not accept either position. I do not consider that any aspect of the statutory scheme indicates that hardship to a licence holder is a matter that must or must not be taken into account. What is clear by s 9A of the Act is that "[i]n exercising its powers and performing its functions, CASA must regard the safety of air navigation as the most important consideration" and thus so too must the Tribunal. Any deviation from that statutory direction, whether by reference to hardship or otherwise, would be an error of law. Beyond that it is for the Tribunal to decide, having regard to the cases put before it, any matter rationally connected to the questions it has to answer. In the context of deciding whether Mr Anderson was a fit and proper person, consistent with Civil Aviation Safety Authority v Central Aviation Pty Ltd (2009) 253 ALR 263; [2009] FCA 49 at [42] and [43], I doubt hardship could ever be said to be rationally connected to that question. In the context of deciding whether the licence of a person who has been found not to be a fit and proper person should be cancelled, varied or suspended, I do not consider hardship to be either a relevant or irrelevant consideration. The Tribunal could take that factor into account in framing its decision but, in my view, is not bound to do so. That is sufficient to undermine the case for Mr Anderson in this regard. If not a consideration the Tribunal was bound to consider, then the Tribunal did not err in not considering it. 16 It follows that question 3 must be answered "No".

CONCLUSIONs 17 For the reasons given the appeal should be dismissed with costs. I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jagot.

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