the hearing of the application
11 On the hearing of the application, I put to the applicant that the twenty-eight day period provided under Reg 268 having expired, the matters in issue were moot and that no order of the Court would affect in any way the second respondent's rights in respect of his pilot's licences. CASA, by its counsel, responded :
"MR HARVEY: Absolutely no. In that sense, absolutely, your Honour. Your Honour is quite correct that there is in that sense no consequence that befalls the second respondent. The consequence that the Civil Aviation Safety Authority seeks, of course, is a pronouncement upon the decision of the Tribunal, a pronouncement that that decision was erroneous in law and should either be set aside, in accordance with section 16 of the Administrative Decisions Judicial Review Act, or quashed; or alternatively, that a declaration of this court be given that it is a nullity. It is of no effect. Now, that doesn't have any practical consequence upon the second respondent.
We accept that, your Honour, that there is no - nothing that flows from that. If he's been flying, for example, in the time between the date of the Tribunal's decision and the date of expiration by effluxion of time of the suspension period, it doesn't mean that he's committed an offence, or some such matter such as that. In that sense, your Honour, the prime target, if I can put it that way, of course, is the decision of the Tribunal and the need to have a definitive pronouncement, for the first time I might say. There's no case that deals with the operation, for example, of the fundamental regulation which we agitate: CAR 268, that's regulation 268 of the Civil Aviation Regulations."
12 Should the Court entertain the application of CASA on the basis it seeks, and, on the basis that there is a live issue between CASA and the respondents as to costs in these proceedings, notwithstanding that the twenty-eight day period under Reg 268 expired before the first return date of the proceedings on 7 July 2000?
13 CASA submits that this Court has jurisdiction to hear and determine the application made by it under s 39B(1)A(c) of the Judiciary Act to seek an order under s 16 of that Act against the AAT to set aside or quash its order, or, pursuant to s 21 of the Federal Court of Australia Act 1976 (Cth), to make a declaration of right binding the AAT. CASA submits that this follows from the decisions of a Full Court of this Court in Yolbir v Administrative Appeals Tribunal (1994) 48 FCR 246, a decision of Drummond J in Foster v Minister for Customs and Justice (1999) 164 ALR 357 (on appeal (2000) 200 CLR 442), and, a decision of Burchett J in Secretary, Department of Employment, Education, Training and Youth Affairs v Allen & Anor (1998) 26 AAR 420 at 421 - 422.
14 In my view, the issue is not one of jurisdiction to entertain the application, it is a question of whether as a matter of discretion the jurisdiction will be exercised to grant the relief sought in the circumstances which now exist. In Lamb v Moss and Brown (1983) 76 FLR 296 a Full Court of this Court (Bowen CJ, Sheppard and Fitzgerald JJ) were concerned, inter alia, with the granting of relief of the type now sought under s 16 of the Judiciary Act upon an application for an order for review under that Act. The Court said in a joint judgment, after ascertaining the relevant principles discernible from the authorities (at 312 - 313) :
"The application of these principles to the Act leaves no doubt but that, once the jurisdiction of the court is properly enlivened by a sufficient application, there is an obligation on the court to entertain that application: cf R v Commonwealth Court of Conciliation and Arbitration; Ex parte Ozone Theatres (Aust) Ltd (1949) 78 CLR 389 at 398. However, as had been noted, the existence of that obligation is not inconsistent with a power in the court to refuse relief notwithstanding that the statutory preconditions to a grant of relief are satisfied. In our opinion, such a discretion does exist under the Act, but that conclusion is not solely dependent upon the language in which the court is given power in s 16.
Each of subs (1), (2) and (3) of s 16 must be read subject to the implicit proviso that the specified relief may be granted only if a basis for relief under the Act is established. Subject to that, the narrower view of those subsections would limit the discretion to the selection of the appropriate form of order from the designated categories. However, the natural meaning of the language used is apt to confer upon the court a discretion both as to whether or not to grant relief, provided that a basis for relief is established, and, if relief is to be granted, as to the form of relief; cf Evans v Friemann (1981) 53 FLR 229 at 237, per Fox J; Cox v Lightly (unreported, Neaves J, 1 July 1983). The words 'in its discretion', are emphatic of the discretionary nature of the court's power.
There are broader indications arising from a consideration of the Act as a whole which confirm us in the view that the court has such a power. We instance, firstly, the nature of the rights given by the Act and the class of persons to whom they are given. Of greater significance are the powers conferred on the court when considered in conjunction with the grounds upon which it may give relief. Notwithstanding the particularity with which those grounds are stated, no narrow or restricted view of the operation of the Act is warranted. Its broad purpose was to invest this Court with jurisdiction to supervise administrative action in the Commonwealth sphere in all its aspects. The Act came into force at a time when courts, both in Australia and elsewhere, were in the process of expanding common law and equitable remedies with a view to ensuring, more so than was the case in the past, that the administration acted according to law. Those remedies were (and are) the prerogative writs (or orders in the nature thereof), the declaration of right and the injunction. Each of them is a discretionary remedy. The relief for which s 16 of the Act provides includes an order quashing or setting aside a decision, an order declaring the rights of the parties and an order directing any of the parties to do, or to refrain from doing, any act or thing. Each of these remedies has its parallel in the common law or equitable remedies previously available in the Supreme Courts of the States and still available in the High Court; cf s 9 of the Act. It would be strange indeed if this Court, in administering an Act plainly intended to provide comprehensively for an improved system for judicial review of administrative action, were not to have the same wide discretion to grant or refuse relief as do courts dealing with applications for the traditional common law or equitable remedies."
15 In the present case, the effect of the stay of the AAT is spent. The setting aside or quashing of the order of the AAT would have no practical application or effect in the administration of the Act or the Regulations by CASA with respect to the second respondent arising out of the circumstances which gave rise to the suspension of his pilot's licences. In those circumstances the Court should not, as a matter of discretion, grant the relief sought even if the relief may at an earlier time have been maintainable and justified where the passage of time has rendered the application of no practical application: Yolbir at 248 D-E; Gerrard v Mayne Nickless Ltd [1997] FCA 1439 at p 7.
16 In Mayne Nickless Ltd v Transport Workers Union of Australia [1998] FCA 984, a Full Court of this Court (Black CJ, von Doussa and Carr JJ) said (at pp3 - 4) :
"The courts have an obligation to conduct their proceedings, and to deal with an ever-increasing workload, with as much expedition as the overriding demands of justice permit. No encouragement should be given, therefore, to the use of scarce judicial time to decide appeals that are essentially moot. There are other litigants with cases pending before the Court for hearing or delivery of judgment and their claims involve the determination of substantial legal rights of practical importance. This is not the situation in this appeal (see and compare Beitseen)."
Examples of the Court exercising a discretion not to act where events have overtaken the proceedings so as to render the issue moot may be found in Beitseen v Johnson (1989) 29 IR 336 (FC) at 337 - 338; Dudzinski v Rossington [2000] FCA 1659 at pars [9] and [10]; Ibarcena v Secretary, Department of Family and Community Services [2001] 33 AAR 76 at 80.
17 What CASA seeks in par 2 of the relief sought is in the nature of an advisory opinion or a direction to the AAT as to how it shall, by its members in all future matters, exercise the discretion under s 41(2) of the AAT Act in a particular way in respect of any reviewable decision under the Act. As between CASA and the AAT, the declaration sought involves no declaration of a legal right in actual controversy which the declaration would confirm or modify and which remains capable in a real and genuine sense to be enjoyed: Beitseen at 337 - 338. It is insufficient that CASA has a genuine interest in having the legal issues resolved for the benefit of its administration of the Act in future cases which may arise. Those issues will, in an appropriate case, be resolved in litigation where they are real and will have a practical effect in respect of a controversy.
18 The fact that there may be an issue as to costs does not mean that there is a requirement to determine the issue for the purpose of determining that cost issue. The decision in Yolbir is not authority for the proposition that where there remains an issue as to the costs of the proceedings, it is necessary for the Court to determine issues on the basis of what the position would have been if it had been necessary to litigate the issue to a final conclusion. The decision stands for no more than the proposition that it may not be inappropriate in a particular case for something to be said about the issue which brought the parties before the Court: 48 FCR 246 at 248 E-F.
19 In my view, it is inappropriate to proceed to a determination of the substantive legal issues on the question of costs merely to obtain an advisory opinion where the question of costs can be determined having regard to the conduct of the parties in bringing or maintaining the proceedings. The position of an action where the determination of the issues becomes moot is analogous to the situation where the parties resolve the matters in issue save as to costs. In that case the relevant matters which may affect the exercise of discretion are considered in Australian Securities Commission v Aust-Home Investments Limited (1993) 44 FCR 194; Australian Securities Commission v Berona Investments Pty Ltd (1995) 18 ACSR 772; Golden City Car & Truck Centre Pty Ltd v Deputy Commissioner of Taxation (2000) 46 ATR 51. I have adopted a similar approach to the question of costs in this case.
20 In the present case, the maintenance of the proceedings after the expiration of the twenty-eight day period from which the second respondent's pilot licences were suspended by CASA was unnecessary and unreasonable. The proceedings were maintained thereafter in order to obtain as against the AAT some form of relief which would direct the AAT to exercise its discretion in the future in a way contended for by CASA. The second respondent should not have been put to the costs and expenses occasioned to him by the continuation of the proceedings. However, the second respondent raised a number of grounds which were on analysis not relevant or not pressed. This has led to unnecessary additional costs.
21 The justice of the case requires that CASA pay two-thirds of the second respondent's costs for maintaining the proceeding unnecessarily and unreasonably against him from 5 July 2000. The AAT has not sought costs against CASA.
22 The application should be dismissed with an order that CASA pay the second respondent's costs of and incidental to the proceeding, including reserved costs, to be taxed if not agreed.
I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Cooper.