Civil Aviation Safety Authority v Boatman

The Statutory and Factual Setting of this Appeal 6 The main object of the CA Act stated in s 3A is to establish a regulatory framework that focussed upon securing the safety of civil aviation and, in particular, "on preventing aviation accidents and incidents". This focus is re-emphasised in s 9A of the Act which requires CASA in exercising its powers and performing its functions "[to] regard the safety of air navigation as the most important consideration". 7 Division 3A of the Act, headed "Serious and imminent risks to air safety", was inserted in the Act by amending legislation in 2003. Section 30DB prohibits the holder of a civil aviation authorisation granted under the Act from engaging in conduct "that constitutes, contributes to or results in a serious and imminent risk to air safety". Where CASA has reasonable grounds to believe that an authorisation holder has engaged, or is engaging, or is likely to engage, in such conduct, it may suspend that person's authorisation by giving him or her written notice: s 30DC(1). 8 We would interpolate that on 13 May 2004, CASA gave such written notices to Mr Boatman and Ms Kennedy suspending authorisations held by each which permitted them to fly aircraft. 9 Under the Act CASA's s 30DC suspension ends at the end of the fifth business day after the day on which the holder was notified of it, "unless before that time CASA makes an application to the Federal Court under section 30DE": s 30DC(3). Again we would note that, within the required time, CASA applied to this Court for an order under s 30DE for an order prohibiting the respondents for a period of 25 days from doing anything that would otherwise be authorised by their suspended authorisations. The present status of this application is at the centre of this appeal. 10 It is necessary to set out the provisions of s 30DE in full. They state: "(1) If CASA suspends a civil aviation authorisation under section 30DC, CASA may, before the end of the fifth business day after the day on which the holder of the authorisation was notified of the suspension, apply to the Federal Court for an order under this section. (2) If the Federal Court is satisfied that there are reasonable grounds to believe that the holder has engaged in, is engaging in, or is likely to engage in, conduct that contravenes section 30DB, the Court must make an order that prohibits the holder from doing anything that is authorised by the authorisation but that, without the authorisation, would be unlawful. (3) In deciding under subsection (2), the Federal Court must have regard to section 3A and subsection 9A(1). (4) Subject to section 30DF, an order continues in force for the period determined by the Federal Court when making the order, being the period (not more than 40 days) that the Court considers reasonable to allow CASA to complete an investigation into the circumstances that gave rise to CASA's decision to suspend the authorisation." 11 We would emphasise the mandatory terms in which subsection (2) is cast: "If the Federal Court is satisfied [etc] … the Court must make an order …". As we have already noted, when Stone J made the 10 June consent orders, material was not then provided to her from which her Honour could achieve the required "satisfaction" which, as she indicated at the 25 June directions hearing, was the jurisdictional pre-condition to the making of an order under s 30DE. We would also note that, subject to a maximum period of 40 days, and to the provisions of s 30DF which are not presently relevant, s 30DE(4) requires the Court to determine the period for which its order is to continue. The relevant period is that which the Court considers reasonable to allow CASA to complete its investigation. The issue that arises in this appeal is whether an order "must" be made under s 30DE notwithstanding that, at the time of hearing of the s 30DE application, CASA had actually completed its investigation. 12 It is the making of an order under s 30DE which permits CASA to undertake further action under Division 3A. This, as we will later indicate, is of fundamental importance in this appeal. Section 30DG provides: "If the Federal Court makes an order under section 30DE in relation to a civil aviation authorisation, CASA must, by the end of the period that the order is in force, complete an investigation into the circumstances that gave rise to CASA's decision to suspend the authorisation under section 30DC." The completion of the s 30DG investigation can in turn lead under s 30DH to CASA's serving a notice on the relevant authorisation holder to show cause within a specified period why his or her authorisation should not be varied, suspended or cancelled. Within 5 business days after the end of the show cause period, CASA can vary, suspend or cancel the authorisation in question: s 30DI. We note in passing that, if Stone J's orders had been made under s 30DE, 25 June 2004 would have been the last day on which CASA could have issued a show cause notice under s 30DH. It was on that day that Her Honour indicated that the order was not a s 30DE order. 13 An important feature of Division 3A is that the scheme contemplates a process under which a suspension initiated by CASA under s 30DC remains operative if the conditions of the Division are satisfied, until CASA varies, suspends or cancels the relevant authorisation under s 30DI. 14 Division 3A, though specific in its focus on serious and imminent risks to air safety, does not provide the only source of power enabling CASA to suspend or cancel licences, etc. granted under the CA Act and Civil Aviation Regulations (1988) (Cth). Regulation 269 provides a more wide ranging power to suspend or cancel than that given under Division 3A, but unlike with the latter power, a decision under Reg 269 is a "reviewable decision" under Division 4 of the Act with the consequence that that decision is subject to the automatic stay provisions of s 31A. The practical significance of this is that, if CASA's decision is appealed to the Administrative Appeals Tribunal, a Reg 269 suspension is stayed for up to 90 days. Importantly a decision to suspend under s 30DC is not a "reviewable decision" under Division 4. As the second reading speech to the 2003 amendment Bill makes clear, the choice to exempt cases of serious and imminent risk to air safety from those where the stay provisions would apply was a designed one. The Minister noted of the exemption (Hansard, House of Representatives, 27 March 2003, p 13753): "It is important that CASA has sufficient power to act quickly in such cases, and the community would expect nothing less."

THE DECISION UNDER APPEAL 15 Consequent upon Stone J's indication that the consent orders were not made under s 30DE, the respondents filed a notice of motion seeking an order that the s 30DE application be dismissed. CASA in turn sought an order setting aside the consent orders made by Stone J. Both motions were heard by Gyles J on 9 July. Judgment was delivered on 13 July 2004. Gyles J ordered that the s 30DE application be dismissed and that CASA pay the respondent's costs incurred after 25 June 2004. 16 In taking the course he did, Gyles J appears to have acted on the assumption that Stone J's consent orders were not made under s 30DE with the consequence that CASA's s 30DE application remained on foot. As we have foreshadowed, his Honour was correct in this assumption. However, it was clear on the evidence before Gyles J that CASA's investigation into the circumstances giving rise to its s 30DC suspension decisions had been completed by 18 June 2004. This pre-dated the motions before his Honour. In these circumstances Gyles J dismissed the s 30DE application. 17 His Honour considered (at [22]) that the provisions of s 30DE(4) and s 30DG: "… make it apparent that the purpose underlying an order pursuant to s 30DE is to confirm suspension during the period that is necessary to enable completion of an investigation into the circumstances that gave rise to the decision to suspend. It is clear enough that the role of the Court is to provide an independent determination as to the decision to suspend pending investigation. This is confirmed by reference to the Second Reading Speech. It is also apparent that that understanding of the legislation lay behind CASA's agreement to the consent orders. It follows that the occasion for an order pursuant to s 30DE has passed and that the substantive application must be dismissed." 18 Additionally, Gyles J held that scheme of Division 3A was such as to preclude reliance by CASA on the provisions of s 33(1) of the Acts Interpretation Act 1901 (Cth).

CONCLUSION 19 The central issue in the appeal is whether Gyles J erred in dismissing the application for the reasons he gave. We consider he did err by making an order for summary dismissal of the proceeding. Section 30DE occupies a crucial position in the scheme of the Division. First, it provides an independent determination by the Court of the question whether "there are reasonable grounds to believe that the holder [of the authorisation] has engaged in, [etc] … conduct that contravenes s 30DB". In doing this the Court performs the function envisaged for it in the second reading speech of "adjudicating the suspension": Hansard at 13752. Secondly, it obliges the Court to make an order if it is satisfied in accordance with subs (2) of s 30DE. This order serves a twofold purpose. The first is instrumental. It permits CASA to complete its investigation within such time as the Court considers reasonable. The second purpose is that of a condition precedent. Unless a s 30DE(2) order is made, the provisions of subdivision D (i.e. s 30DG - s 30DJ) that can lead ultimately to the variation, suspension or cancellation of an authorisation under s 30DI cannot be engaged. In our view, while Gyles J correctly emphasised the first of s 30DE's purposes, His Honour overlooked the second and important purpose of the section. In so doing he proceeded on a mistaken view of the operation of Division 3A. 20 Strictly speaking, CASA cannot complete an investigation under s 30DG until the Court has made an order under s 30DE. There may be many reasons why CASA might in fact complete an investigation before the Court finally gets to hear and determine a s 30DE application. The investigation may be into conduct requiring little by way of investigation; it may be completed because court delay provides CASA with the time it requires; it may even be completed in a clear and patent case before the application is made to the Court. That it is complete in fact before the application is determined does not, though, relieve the Court of its adjudicative function under s 30DE(2). Nonetheless it has an obvious bearing on the period to be allowed to complete an investigation under s 30DE(4). In such a case the order made would ordinarily be of a most formal character having no duration beyond the hearing (e.g. an order until the rising of the court). Such an order is not for that reason futile. The structure of Division 3A is such that its making is necessary to trigger the succeeding provisions of the Act. The error made by His Honour was to overlook this important function of the s 30DE order. 21 The view we take of s 30DE in its setting is consistent with the purpose of the Division itself. Its focus is on providing special and exceptional measures for cases involving serious and imminent risks to air safety. It would defeat the purpose of the Division if CASA was to lose access to the s 30DE trigger because of its diligence in completing its investigation before the Court heard its application under the section. 22 It is no answer to say that CASA could still resort to its powers under Reg 269 of the Civil Aviation Regulations. As we have indicated, the effect of the automatic stay of a decision under that regulation may be to exaggerate the very risk that Division 3A was designed to avoid. There is no reason compelling us to give s 30DE a construction which would promote such obviously unintended consequences. Regulation 269 provides for the usual case; Division 3A for the exceptional. CASA has acted on the belief that this is an exceptional case. It is entitled to have the Court's determination of this question. 23 There is one additional matter with which we must deal. The respondents have contended that CASA is estopped now from seeking an order under s 30DE, having consented to such an order being made by Stone J. There is a variety of responses that properly can be made to this contention. CASA did indicate to the respondents that the consent order to which it would agree was to be made under s 30DE. CASA acted consistently with this and had until 25 June 2004 to give a show cause notice under s 30DH. It was on that day that Stone J indicated that the consent orders were not made under s 30DE. A s 30DH notice could not in consequence be given though one was in preparation. Both CASA and the respondents erred in assuming the provenance of the consent orders. Their mutual error, on which each relied, cannot rob CASA of the capacity to proceed under s 30DE of the Act as it indicated it intended to in agreeing to the consent orders. Neither could their relied upon error found an estoppel in such circumstances. 24 We will allow the appeal and will order that (i) the matter be remitted to a judge of the Court to hear the appellant's application for an order under s 30DE of the Civil Aviation Act 1988 (Cth); and (ii) the respondents pay the costs of the appeal and of their motion before Gyles J. The respondents also cross-appealed seeking to have the costs ordered in their favour by Gyles J paid on an indemnity basis. Since that costs order has not been sustained, their cross-appeal will be dismissed with costs. I certify that the preceding twenty-four (24) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Whitlam, Finn and Conti.

Counsel for the Appellant: P L G Brereton SC with I L Harvey

Counsel for the Respondent: P G Cawthorn with R H M Attiwill

Solicitor for the Respondent: Grundy Maitland & Co