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[2012] FCA 1305
Federal Court of Australia
2012-11-21
Murphy J
Original judgment source is linked above.
REASONS FOR JUDGMENT 1 On 2 November 2012 I handed down reasons for judgment in this proceeding. In its Notice of Appeal and its submissions CASA sought that the matter be remitted to the Administrative Appeals Tribunal ("Tribunal") to be determined according to law, which is the usual course. However, given my reasons I considered there was a real question as to whether the matter should be remitted or whether the Court should substitute its decision. I sought further submissions in relation to: (a) whether the matter ought be remitted to the Tribunal to be determined according to law or whether the Court should substitute its decision; and (b) costs. 2 I now publish my reasons in relation to those two issues.
Remitter 3 In this matter there was little factual dispute before the Tribunal. The central issue for determination by the Court was the correct construction of the relevant provisions of the Civil Aviation Regulations 1988 ("the Regulations") as applied to the facts found by the Tribunal. I held that the Tribunal wrongly construed the Regulations in arriving at the result that the Caper air operation (as described in my earlier reasons) constituted a "closed charter" rather than "regular public transport" ("RPT") as defined in the Regulations. I considered that the facts found by the Tribunal admitted no conclusion other than that Caper was engaged in regular public transport. In the circumstances, the Tribunal was wrong to set aside CASA's decision and the appeal was allowed. 4 As to the form of orders to be made, s 44(4) of the Administrative Appeals Tribunal Act 1975 (Cth) ("AAT Act") empowers the Court to "make such order as it thinks appropriate by reason of its decision." 5 Section 44(5) of the AAT Act provides: Without limiting by implication the generality of subsection (4), the orders that may be made by the Federal Court of Australia on an appeal include an order affirming or setting aside the decision of the Tribunal and an order remitting the case to be heard and decided again, either with or without the hearing of further evidence, by the Tribunal in accordance with the directions of the Court. 6 It is common ground between the parties that, given my construction of the Regulations, there is no utility to remitting this matter to the Tribunal to be heard again according to law. Caper does not point to any further evidence that it wishes to have the opportunity to place before the Tribunal and accepts that, apart from one limited reason, the decision under review should not be affirmed. 7 It is established that where only one result consistent with the Court's decision is possible, the Court may make a decision in substitution for that under review, thereby relieving both the Tribunal and the parties of the burden of a further hearing: Harradine v Secretary, Department of Social Security (1989) 25 FCR 35 per Wilcox, French and von Doussa JJ; Secretary, Department of Community Services and Health v Theologidis (1991) 33 FCR 186 per Gummow, Einfeld and Heerey JJ. In my view only one result is appropriate in the present matter and I have ordered that the decision of the Tribunal be set aside, and I affirm the primary decision under review. 8 Caper argues, and I accept, that there is no warrant for imposing a restriction on Caper from undertaking charter flights to Bathurst Island pursuant to different arrangements to those considered by the Tribunal and the Court. That is, while the arrangement entered into between Caper and AAT Kings resulted in Caper carrying out an RPT operation rather than a closed charter, that does not mean that Caper ought be restricted from carrying out charter operations to Bathurst Island that meet the definition of charter operation under reg 206. For example, there should be no reason why - if Caper was now approached by a group of tourists that requested Caper to undertake an charter flight to Bathurst Island that fell within the definition of an "open charter" in reg 206(1)(b)(i) - that Caper should be prohibited from doing so. However, in the decision under review of 7 September 2010 CASA modified Caper's Air Operator's Certificate ("AOC") by cancelling its authorisation to operate charter flights between Darwin and Bathurst Island. 9 Although it accepts there is no utility to the Court remitting this matter to the Tribunal, Caper argues that the Court should set aside CASA's decision to modify its AOC because to allow the decision to stand means that Caper can no longer undertake any charter flights to Bathurst Island, even those that are consistent with its former AOC. I will not make this order as it is not appropriate for the Court to seek to interpose itself between CASA and Caper in the regulation of its air operations. My jurisdiction is limited to dealing with the questions of law raised in the Notice of Appeal, and I have heard no evidence or submissions as to CASA's intentions with regard to Caper's AOC. For example, I do not know whether CASA seeks to maintain the modification of Caper's AOC, whether it will now reinstate the AOC without condition, or whether it will reinstate the AOC subject to some condition. 10 In the alternative, Caper seeks that the matter should be remitted to the Tribunal constituted by the same Member for the limited purpose of ascertaining whether the original CASA decision should stand or some alternative decision ought be made. Leaving aside the issue about direction by the Court as to the constitution of the Tribunal, in my view it is inappropriate to make any order remitting the matter to the Tribunal at present. Primarily this is because there may be no dispute between CASA and Caper. 11 In order to deal with Caper's concern that it is effectively injuncted from conducting charter flights to Bathurst Island at present, in the exercise of my power to make orders under s 44(4) of the AAT Act I will direct that within 21 days CASA make a decision as to Caper's authorisation to conduct charter flights to Bathurst Island. If Caper is dissatisfied with that decision it may apply to the Tribunal for review and one might expect that it may be heard speedily because any dispute would be of very limited compass. 12 It is unnecessary to again order that the Tribunal's decision of 21 March 2011 be set aside, but I will now also order that CASA's decision of 7 September 2010 be affirmed.
Costs 13 Caper accepts that while the usual order is that costs follow the event, no order for costs should be made in the circumstances of this appeal. It argues that the proceeding was a test case providing for the interpretation of a difficult regulation which has an impact upon the whole aviation community. It contends there was nothing wrong with the way in which Caper had been undertaking its flights to Bathurst Island, which it says was consistent with the approach taken by other aviation companies to the interpretation of the Regulations. In that regard Caper paints its conduct as not involving any want of care or safety in the carriage of passengers, but rather so as to seek a determination as to whether a charter operation with AAT Kings as an interposed third party nonetheless constituted RPT. 14 I do not agree. I accept CASA's submission that Caper's application to the Tribunal for review was not motivated by "public interest". In my view the present case can be distinguished from cases such as Oshlack v Richmond River Council (1998) 193 CLR 72 where a majority of the High Court held that a trial judge's discretion had not miscarried by taking into account such matters as the unsuccessful party's lack of personal interest in the outcome of the proceedings, his motivation to ensure obedience to environmental law and the fact that a significant number of members of the public shared that concern. 15 In the present case Caper had a clear personal interest in the outcome of the review, as it enjoyed the benefit of a commercial relationship with AAT Kings. I am not persuaded that Caper's motivation was to assist the aviation community generally, and there is no evidence upon which I could be satisfied that its operation was consistent with the practice in the industry. In fact, the CASA regulatory policy of July 2009 indicates CASA's view that an interposed third party entity should not be treated as altering the effect of the Regulations on an air operation. As limited as this evidence is, it tends to indicate that the Caper air operation was inconsistent with industry practice. 16 While I accept that the decision in this proceeding may be of benefit to CASA and aviation businesses generally in clarifying a difficult area in the Regulations, it was not set up by either party as a "test case". In May 2010 CASA put Caper on notice by way of a show cause notice that it considered that the Caper air operation was outside Caper's AOC. CASA did not single out Caper in an effort to resolve a question of interpretation of the Regulations, instead giving an opportunity to accept CASA's approach as outlined in its regulatory policy. Caper determined to continue conducting the operation, and challenged the reviewable decision when it was made in September 2010. Caper took the costs risk inherent in the litigation and an order that it pay CASA's costs is appropriate. 17 In the alternative, Caper seeks a costs certificate pursuant to s 6(1) of the Federal Proceedings (Costs) Act 1981 (Cth) in relation to its own costs and those costs which it is required to pay to CASA. It is clear that CASA's appeal is a "federal appeal" within this section and the Court therefore has a discretion to grant the respondent a costs certificate. 18 The appeal involved a real question of law. The proper construction of the relevant Regulations is not clear, a fact which CASA averted to in its regulatory policy. It is plainly important that CASA and those aviation businesses that are bound by the Regulations can properly understand their operation, and in my view there is likely to be a public benefit in settling their proper construction. I also do not consider there is anything in the behaviour of Caper in the proceedings that operates against the exercise of my discretion under s 6: see Commonwealth v Twyman (1985) 8 ALD 554. In the circumstances of this case I am satisfied that it is appropriate for the taxpayer to bear a proportion of the actual costs of the proceeding by the grant of a certificate under that section. I note also that CASA does not oppose the grant. I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Murphy.
Civil Aviation Safety Authority
Caper Pty Ltd
[2011] AATA 181
(1989) 25 FCR 35
(1998) 193 CLR 72
(1991) 33 FCR 186