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[2012] FCA 575
Federal Court of Australia
2012-06-01
Murphy J
Original judgment source is linked above.
REASONS FOR JUDGMENT 1 On 18 May 2012 I handed down an urgent order effectively prohibiting Alligator Airways Ltd from continuing to operate until 5 pm on 4 June 2012, and gave short ex tempore reasons. My detailed reasons for those orders are shortly to be published. In the interim I have received submissions as to costs and urgent submissions as to amendment. I now make further orders as to these matters and provide my reasons.
Costs 2 The parties have made written submissions as to costs. Having been successful in its application for a prohibition order CASA sought an order that Alligator pay the costs of and incidental to this proceeding, including costs reserved on 9 May 2012 together with non-common costs in proceeding VID 348 of 2012. 3 Alligator did not resist the order sought in relation to non-common costs in proceeding VID 348 of 2012. It resisted the order in VID 350 of 2012 on the basis that the Court could only make a prohibition order if satisfied that there were reasonable grounds to believe that Alligator's conduct contravened s 30DB of the Civil Aviation Act 1988 (Cth) ("the Act"), and this required a hearing even if Alligator had not resisted the application. It contended that Alligator should not be ordered to pay the CASA's costs of the first day to day and a half of the hearing as these costs would have been spent regardless of Alligator's position. 4 I do not accept this submission. First, it is common ground that, as a general rule, costs follow the event. The successful party should receive its costs in the absence of special circumstances justifying some other order: Ruddock v Vardalis (No 2) (2002) 115 FCR 229 at 235; Seven Network Ltd v News Ltd [2009] FCAFC 166 at [1100] to [1101]; Hughes v Western Australian Cricket Association (Inc) (1986) ATPR 48,134 at 48,136. Alligator has not advanced any special circumstances which would justify a departure from the usual rule. 5 Second, CASA was exercising its statutory duty in bringing the application. It did so in circumstances where I have found that there are reasonable grounds to believe that Alligator has engaged in, is engaging in, or is likely to engage in conduct that constitutes, contributes to or results in a serious and imminent risk to air safety. This too militates against departure from the usual rule. 6 Third, the evidence in support of CASA's application was strong. Had the application not been contested by Alligator it is possible that the Court would have been in a position to determine the application on the papers. Accordingly, there is no justification for apportioning costs so that CASA meets its own costs for the first day or day and a half of the hearing. 7 I will make the costs orders sought by CASA.
The application to amend 8 During the hearing of the application for the prohibition order CASA issued 15 Aircraft Survey Reports ("ASRs") under r 38 of the Civil Aviation Regulations 1988. The ASRs require that Alligator carry out in respect of each of its aircraft: A compliance check on all the relevant airworthiness directives, and all manufacturer's mandatory services bulletins, and all special inspection requirements as per the aircraft maintenance schedule. Further the Notices require a Report to be provided to CASA by no later than 25 May 2012. Because the ASRs are classified as "Code A", Alligator cannot fly its aircraft until their requirements are met. 9 Alligator contends that the ASRs are unwarranted, excessively onerous, and vexatious. It says that it would take a week to ten days to complete each one in respect of a new aircraft, and much longer to complete in relation to older aircraft. The majority of Alligator's aircraft are more than ten years old. Further, it argues that the ASRs cannot be complied with at present because, by operation of the s 30DC suspension notice and the prohibition order, Alligator is prohibited from carrying out any maintenance work under its COA until 4 June 2012. In effect it argues that the issue of the ASRs and the short time for compliance provided amounts to a failure by CASA to properly exercise its statutory powers. 10 Alligator seeks to be heard in CASA's application VID 350 of 2012 as to whether the ASRs should be set aside or varied. This is effectively an application to reopen the hearing. It is also an attempt to reopen the hearing to deal with an issue that was not even before the Court. CASA sought orders pursuant to s 30DE of the Act and those orders have been made. Except in exceptional circumstances the Court should not reopen a proceeding to enable further evidence to be adduced, new arguments to be advanced or the issues to be re-agitated: Autodesk Inc v Dyason (No 2) (1993) 176 CLR 300 at 302 to 303 per Mason CJ. No such circumstances have been identified. 11 In the alternative, Alligator seeks leave to amend its application in proceeding VID 348 of 2012 so as to seek judicial review pursuant to the Administrative Decision (Judicial Review) Act 1997 ("ADJR Act") in relation to the issue of the ASRs. CASA opposed this application on the basis that the proceeding in VID 348 of 2012 is defective in form and the relief sought is not capable of being sought in an application under the ADJR Act. It argued that proceeding VID 348 of 2012 was effectively abandoned by Alligator at the first directions hearing, that the foreshadowed amendment is a new and discrete matter, and that Alligator has not identified any statutory grounds of review that properly invoke the Court's jurisdiction to review administrative action. It sought an order that application VID 348 of 2012 be dismissed. 12 I do not accept CASA's submission that Alligator abandoned its proceeding in VID 348 of 2012. Counsel for Alligator specifically declined to do so at the first directions hearing. While some of CASA's other objections have some substance, it is of no real significance that the dispute surrounding the issue of the ASRs is a new matter. There is a significant saving of Court fees for Alligator in amending its existing application rather than being required to commence a fresh one. I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Murphy.
Civil Aviation Safety Authority
Alligator Airways Pty Limited