Civil Aviation Safety Authority v Hotop, Deputy President Administrative Appeals Tribunal

29 Section 43(1) of the AAT Act provides: 'For the purpose of reviewing a decision, the Tribunal may exercise all the powers and discretions that are conferred by any relevant enactment on the person who made the decision and shall make a decision in writing: (a) affirming the decision under review; (b) varying the decision under review; or (c) setting aside the decision under review and: (i) making a decision in substitution for the decision so set aside; or (ii) remitting the matter for reconsideration in accordance with any directions or recommendations of the Tribunal.' 30 Section 43(6) of the AAT Act provides: 'A decision of a person as varied by the Tribunal, or a decision made by the Tribunal in substitution for the decision of a person, shall, for all purposes…be deemed to be a decision of that person and, upon the coming into operation of the decision of the Tribunal, unless the Tribunal otherwise orders, has effect, or shall be deemed to have had effect, on and from the day on which the decision under review has or had effect.' The decision of the Tribunal made on 11 February 2005. 31 On 11 February 2005 the first respondent heard an application by the second respondent for orders under s 41(2) of the AAT Act. The application was brought pursuant to each of the applications for review made in applications Nos W2005/24 and W2005/52. 32 On 11 February 2005 the Tribunal made the following order: 'Pursuant to s 41(2) of the Administrative Appeals Tribunal Act 1975, the Tribunal orders that the decision of a delegate of the respondent, dated 14 January 2005 to cancel the applicant's Air Operator's Certificate W073061 ("the AOC") be stayed and that the AOC be extended until the decision of the Tribunal on the ultimate hearing of the application for review.' 33 In his reasons, the first respondent stated that provided the Tribunal had jurisdiction to make the order under s 41(2) of the AAT Act extending the term of the AOC, he had 'no doubt that on the merits of the matter' the Tribunal should make such an order. The first respondent said that it seemed to him that there were 'no overriding public safety considerations in this case'. 34 As to the question of jurisdiction, the first respondent said that he preferred to rely upon the application reviewing the applicant's decision of 14 January 2005 - which he referred to as the 'cancellation decision' - as the basis for the power to grant the order under s 41(2) of the AAT Act. The Tribunal accordingly made the orders staying the decision and extending the term of the AOC in application No W2005/24. In his reasons the first respondent said: 'The power conferred by s 41(2) has been described most recently by the Federal Court in Shi's Case as being framed in broad general terms, which should be given a liberal interpretation, a broad interpretation. In my opinion, the power conferred on the Tribunal by s 41(2) of the AAT Act is broad enough to encompass an order of the kind that I have in mind - that's to say, an order staying the cancellation of the AOC and at the same time extending the operation of that AOC until such time as the Tribunal makes it's ultimate decision in relation to the application for review, that being application W2005/24. Can I conclude by saying that, in my opinion, if the Tribunal in the present case did not have such a power, that would mean that the operation of s 41(2) of the AAT Act, which is clearly designed to preserve an applicant's position as at the time of making the reviewable decision and of course pending the ultimate decision of the Tribunal, would be seriously deficient. It's clear that the Federal Court is of the view that that power is extremely broad and can operate with sufficient flexibility to achieve the object for which it was conferred. As I say, unless that power could be effectively invoked in this case it would be seriously deficient and in the applicant's case would, I think, lead to a situation of its suffering serious, possibly irreparable, commercial hardship, pending the review by the Tribunal and that's a consequence that in my opinion would be contrary to the spirit of administrative review.' The parties' submissions 35 Senior Counsel for the applicant argued that there was no power in the Tribunal to make an order staying the cancellation decision and extending the AOC under s 41(2) of the AAT Act because that power can only be exercised in support of an application for review where at the hearing of that application, the Tribunal can make a decision which can have practical effect. Accordingly, it was argued, that by the time the application for an order under s 41(2) of the AAT Act was heard, the AOC had already expired by effluxion of time, with the consequence that any order at the hearing reversing the cancellation decision of 14 January 2005, would be of no practical benefit. The impugned decision of 14 January 2005, was for all intents and purposes a non operative decision by that time. Senior Counsel for the applicant relied on the dictum of the Full Court of this Court in the case of Yolbir v Administrative Appeals Tribunal (1994) 48 FCR 246 at 249 ('Yolbir') that 'a stay of a non operative decision would plainly have nothing to do with securing the effectiveness of the hearing or the Tribunal's determination'. 36 Senior Counsel for the applicant relied upon the cases of Re Gowing and Civil Aviation Authority (1990) 11 AAR 411 and Reddish and Civil Aviation Safety Authority [1999] AATA 721 as instances where the Tribunal had refused to grant relief where the relief would be of no practical benefit to the applicant for that relief. 37 Senior Counsel for the applicant also argued that an order under s 41(2) of the AAT Act could only be made within power if it was an order 'otherwise affecting the operation or implementation of the decision to which the relevant proceeding relates'. Senior Counsel argued that 'relevant proceeding' in this case was the application No W2005/24 and that the decision the subject of that application for review was the cancellation decision of 14 January 2005. It was argued that the Tribunal only had power to do something that affected the operation and implementation of that decision, not something which affected the term or scope of the operation of the AOC itself. Thus it was said that there was no scope under s 41(2) of the AAT Act to make an order extending the term of an already expired AOC as that was not an order affecting the operation or implementation of the cancellation decision of 14 January 2005, but rather an order affecting the operation of a much earlier decision, namely, the decision fixing the term of the AOC to expire on 31 January 2005, which was not a decision the subject of any application to the Tribunal. 38 Senior Counsel for the applicant argued that, in any event, s 41(2) of the AAT Act did not permit the Tribunal to make an order that was positive in effect. It was argued that s 28 of the CA Act laid down very specific requirements for the grant of an AOC, and that by extending the AOC until the hearing of the application for review, the Tribunal had in effect granted an AOC without any regard being had to the requirement of s 28 of the CA Act. Senior Counsel relied on the following dictum of Deputy President B J McMahon in the case of Alexander and Migration Agents Registration Board (1995) 40 ALD 99 at 103 ('Alexander'): 'Section 41(2) is not positive in its effects but merely negative. The content of the power is limited by its legislative intendment. It is intended to preserve the situation obtaining prior to the reviewable decision. It is not intended to change the situation entirely and put the applicant in a different position from what he would have been in prior to the reviewable decision.' 39 Senior Counsel for the second respondent argued that the Tribunal would not be precluded from making effective review orders on the hearing of the application for review. He argued that the cancellation decision made by the applicant on 14 January 2005 also in effect amounted to a decision refusing to grant the second respondent's application for an issue of an AOC that had been made in May 2004 and that it would be open for the Tribunal to make effective orders on the hearing of the review application setting aside the cancellation and overturning the refusal to issue the AOC. Senior Counsel for the second respondent also argued that s 41(2) of the AAT Act does not preclude the Tribunal from making orders in positive terms continuing an existing statutory benefit, provided that the orders were made for the purpose of securing an effective hearing and determination of the application for review. Reasoning 40 I deal firstly with the argument in relation to the limits on the power of the Tribunal to make orders under s 41(2) of the AAT Act. The powers conferred on the Tribunal by s 41(2) of the AAT Act are to be exercised for the purpose of securing the effective hearing and determination of the review application. This is apparent from the terms of the section itself; and, further, in the Yolbir case the Full Court said at 250: 'In the present case, the relevant decision was the decision that Mr Yolbir's pension be cancelled. That decision, that Mr Yolbir's pension be cancelled, was "the decision as affirmed" for the purposes of s 1283(2) of the Social Security Act. It follows that on the application made by Mr Yolbir, the Administrative Appeals Tribunal had power to restore the pension under s 41 of the AAT Act, if this were appropriate for the purpose of securing the effectiveness of the hearing and the determination of the application for review.' 41 It follows that I accept the applicant's argument that the Tribunal's power to make orders under s 41(2) of the AAT Act depends on the Tribunal being able to grant effective relief in relation to the impugned decision at the ultimate hearing of the review application. It will be a question in each case, therefore, whether the decision the subject of the review application is a decision in respect of which the Tribunal may be able to grant effective relief at the ultimate hearing, having regard to its statutory function as a body empowered to conduct a merits review of the impugned decision. In this regard it is significant that s 43 of the AAT Act provides that the Tribunal has the power to substitute its decision for the decision of the decision‑maker under review; and for the Tribunal's decision to be deemed to take effect at the time of the decision under review. 42 I will deal with the question whether the impugned decision in this case, namely the applicant's decision of 14 January 2005, is a decision in respect of which the Tribunal may be able to grant effective relief at the ultimate hearing of the review application later in these reasons. 43 I now deal with the question of whether the terms of s 41(2) of the AAT Act preclude the Tribunal from making an order which is 'positive' in effect, in the sense of making an order that, pending the hearing of the application, a review applicant may continue to enjoy a statutory benefit, which the impugned decision would otherwise have denied. I reject the submission of Senior Counsel for the applicant that s 41(2) of the AAT Act is to be construed so as to preclude the Tribunal from making orders that have a positive effect. I do so for a number of reasons. 44 First, there is authority to the effect that s 41(2) of the AAT Act must be given a broad interpretation (Yolbir at 249 and Shi v Migration Institute of Australia Ltd (2003) 134 FCR 326 at 332 ('Shi')). 45 Second, there is nothing in the language of the section that precludes the Tribunal from making an order in positive terms. In fact, the language used is of wide ambit permitting the Tribunal to make 'such order or orders staying or otherwise affecting the operation or implementation of the decision…as [it] considers appropriate' to achieve the specified purpose. In the context of a refusal to issue a statutory licence to an existing statutory licence holder, in a case where effective relief can be granted at the hearing, this language is wide enough to include an order permitting the review applicant to continue in business until the hearing of the application. This is because the Tribunal's order in those terms would 'affect the operation' of the impugned decision, which would otherwise operate to preclude the review applicant from continuing to carry on its existing business. In other words, the order of the Tribunal affects the operation of the impugned decision because it neutralises its adverse effect and anticipates that a favourable decision with retrospective effect may replace the impugned decision. 46 Third, the argument advanced by Senior Counsel for the applicant, would substantially undermine the Tribunal's capability to provide effective relief in cases where the operation of the impugned decision would result in the applicant for review having to cease carrying on an existing business pending the hearing of the application for review. The difficulties facing a review applicant that is not allowed to continue in business pending the hearing of an application were described by Tamberlin J in Shi. He said at 333: 'It is evident that if a decision favourable to an applicant is made by the AAT in relation to the application to renew, then the agent in this case will have been wrongfully deprived of the opportunity to earn his livelihood from that time up to the time of the favourable determination. There may also be damage to his practice and reputation. There is no provision for the recovery of this loss or for any disruption to the practice, or loss of reputation or goodwill. A favourable decision to the applicant by the AAT would also mean that the applicant had been wrongfully refused registration and these are important considerations; see the remarks of Davies J in Dekanic v Tax Agents' Board (NSW) (1982) 6 ALD 240 at 242‑243. These observations were applied in Re Nelson and Tax Agents' Board (Qld) (1993) 30 ALD 317. If the applicant in the present case is not granted a stay, the effectiveness of the hearing and determination of the application for review will be diminished.' 47 Similar sentiments were expressed by the first respondent in his reasons for decision to which I have referred above, and by Deputy President Handley in the case of Re Medtest Pty Ltd and Minister for Health and Ageing [2002] AATA 317 where he said: 'I am concerned…that unless a stay order is granted, the utility of the hearing will be significantly undermined if there is a possibility of the Applicant being put out of business.' 48 Section 15AA of the Acts Interpretation Act 1901 (Cth)provides that: '(1) In the interpretation of a provision of an Act, a construction that would promote the purpose or object underlying the Act (whether that purpose or object is expressly stated in the Act or not) shall be preferred to a construction that would not promote that purpose or object.' 49 The purpose of the AAT Act is to afford a review applicant an effective means of obtaining a merits review of an administrative decision (Collector of Customs (New South Wales) v Brian Lawlor Automotive Pty Ltd [1979] 41 FLR 338 at 367‑368). I agree with the tenor of the dicta of Tamberlin J, Deputy President Handley and the first respondent referred to above. I am of the view that a construction which would afford the Tribunal the power to make orders under s 41(2) of the AAT Act to positive effect in the sense referred to above, would be a construction which promotes the purpose of the AAT Act, and is to be preferred over a construction which would deny the Tribunal such a power. 50 Fourth, in the Yolbir case the Full Court of this Court expressly recognised that orders under s 41(2) of the AAT Act could be made in positive terms. At 250 the Full Court said: 'The s 41 power of "staying or otherwise affecting the operation or implementation of the decision", empowered the making of a stay decision expressed either as a suspension of the operative decision, or in the positive terms used by Bowen CJ in Director‑General of Social Services v Chaney (unreported, 4 June 1980), which is referred to in the reasons of Deane J in Director‑General of Social Services v Chaney (1980) 47 FLR 80 at 98, those terms being: "to direct payment of the pension to [the respondent] as from today (a pension day) until the hearing of the appeal or further order". That order was made in pursuance of s 44A(2) of the AAT Act, a section which confers upon the Federal Court powers to make interim orders in terms generally similar to those conferred upon the Administrative Appeals Tribunal by s 41 of the AAT Act.' 51 In my view the Alexander case, relied upon by the applicant, is not an authority for the proposition that as a matter of constructions 41(2) of the AAT Act precludes the Tribunal from making orders that would have a positive effect. In the course of his reasons Deputy President B J McMahon referred to the Yolbir case and the cases of Re Dekanic and Tax Agents' Board of New South Wales (1982) 6 ALD 240 and Re Nelson and Tax Agents' Board Queensland (1993) 30 ALD 317 ‑ which were cases in which 'positive' orders were endorsed or made. Further, Deputy President B J McMahon specifically recognised that in cases where a review applicant had been carrying on business prior to the making of the impugned decision, an order under s 41(2) of the AAT Act could be made in positive terms permitting the review applicant to continue operating the business pending the hearing of the application for review. The basis of the Alexander decision is not that, on the proper construction of the section, the Tribunal is precluded from making an order to positive effect, but that in circumstances of that case, the making of such an order was not necessary to secure the effective hearing and determination of the application for review. 52 I now deal with the question of whether the applicant's decision, the subject of the second respondent's application for review, namely, its decision of 14 January 2005, is a decision in respect of which the Tribunal is capable of giving effective relief at the ultimate hearing of the application for review. As mentioned above, Senior Counsel for the applicant argued that the impugned decision was a decision to cancel an AOC which had already expired by the effluxion of time on 31 January 2005. Therefore, it was argued, no effective relief could be given at the ultimate hearing - there being no utility to the second respondent in having the AOC restored in respect of a period which had already expired. 53 I do not accept the argument of Senior Counsel for the applicant. In my view, the impugned decision of 14 January 2005 is of such a character as to afford the Tribunal the power to make an effective order at the ultimate hearing of the application. This is because, on the evidence before me, although the decision was referred to in the applicant's letter only as a decision cancelling the AOC, the effect of the decision was also to refuse the second respondent's application for the issue of a long term replacement AOC which the second respondent had made in May 2004. The evidence shows that the decision, communicated by the applicant's letter of 14 January 2005, was made primarily by reference to the 'Show Cause' Notice of 16 July 2004, which was a show cause notice, not in relation to a proposal to cancel the AOC, but, as set out in the applicant's letters of 20 July 2004 and 30 September 2004, a notice to show cause why the applicant 'should not refuse the Company's application for an AOC covering the period post 31 July 2004'. Further, the 14 January 2005 decision was made at the end of a process which, according to the applicant's letters of 20 July 2004 and 30 September 2004, was implemented for the purpose of preserving in tact the second respondent's AOC until a decision was made on the second respondent's application for the issue of a long term replacement AOC to take effect on the expiry of its current AOC. In my view, the evidence supports the conclusion that the applicant granted a series of short term extensions of the existing AOC under s 27(7) of the CA Act, for the purpose of facilitating the consideration of the second respondent's application for the issue of a long term replacement AOC to take effect on the expiry of the current AOC; and that in reaching its decision on 14 January 2005 the applicant relied on a 'Show Cause' process that had been commenced for the purpose of considering the second respondent's application for an issue of a replacement AOC. I am of the view, therefore, that the effect of the decision that the applicant made on 14 January 2005 was not only to cancel the AOC but also to refuse the second respondent's application made in May 2004 for the issue of a long term replacement AOC (in this regard, I note that in the unsuccessful negotiations which subsequently took place, the applicant offered the second respondent an AOC for 3 years). I express no view on whether the 'Show Cause' process in which the applicant engaged prior to making the 14 January 2005 decision was sufficient to comply with s 28BA(4) of the CA Act in respect of a decision to cancel the AOC, as opposed to a decision refusing the second respondent's application for the issue of a replacement AOC. 54 It follows, therefore, that I find that the decision of 14 January 2005 is an operative reviewable decision in respect of which the Tribunal is capable of granting effective relief in substitution for the decision of the applicant which was, in effect, to refuse the second respondent's application for a long term replacement AOC. It follows, also, that I am of the view that the Tribunal did not commit any jurisdictional error in making the orders that it did on 11 February 2005. I, therefore, dismiss the application with costs. I certify that the preceding fifty‑four (54) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Siopis.

Associate: Dated: 27 July 2005 Counsel for the Applicant: Mr P Brereton SC and Mr I Harvey

Solicitor for the Applicant: Civil Aviation Safety Authority

Counsel for the Second Respondent: Mr J Langmead SC and Mr R Attiwill

Solicitor for the Second Respondent: Grundy Maitland & Co