Administrative Appeals Tribunal Act 1975 - s.42B(1)(a)

Re Seaview Lord Howe Pty Limited and Civil Aviation Authority (1995) 21 AAR 506

Re Surf Air and Civil Aviation Authority [1991] AATA 50; (1991) 22 ALD 118

Duncan v Defence Force Retirement and Death Benefits Authority [1980] FCA 58; (1980) 3 ALD 113

Director-General of Social Services v Hales [1983] FCA 81; (1983) 47 ALR 281

Attorney-General (Commonwealth) v State of Queensland (1990) 94 ALR 515

Secretary, Department of Social Security v Salvona (1989) 18 ALD 289

Re Vanderlouw and Civil Aviation Authority (Unreported AAT Decision 5591, 20 December 1989)

Re Gowing and Civil Aviation Authority [1990] AATA 56; (1990) 11 AAR 411

Re Williams and Australian Electoral Commission [1995] AATA 160; (1995) 38 ALD 366

Lees v Comcare [1999] FCA 753

Attorney-General of the Duchy of Lancaster v London and North Western Railway [1892] 3 Ch. 274.

23 September 1999 Deputy President A M Blow OAM, QC.,

1. The applicant has applied to this Tribunal for the review of three decisions made by delegates of the respondent. The first was a decision on 11 August 1997 to cancel his Chief Pilot approval. The second was a decision on the same day to revoke his chief flying instructor's approval. The third was a decision on 10 September 1997 to suspend his flight instructor ratings and require him to undertake an examination. Counsel for the respondent has submitted that, for reasons which I will explain, the applicant is not in a position to obtain a decision from this Tribunal which will have any practical effect, and that the Tribunal should therefore dismiss the applicant's three applications pursuant to s.42B(1)(a) of the Administrative Appeals Tribunal Act 1975.

2. During 1997 the applicant was working for a company named Air Pacific Services Pty Limited which traded as Skytech Aviation Services and as Skytech International Flying School. I will refer to the company as "Skytech".

3. On 27 June 1996 pursuant to s.27(1) of the Civil Aviation Act 1988 ("the Act"), the respondent issued an air operator's certificate to Skytech. The certificate stated that it expired at the end of 31 October 1997.

4. Under s.98(4A) of the Act, the respondent is empowered to issue written instruments called Civil Aviation Orders. Pursuant to that provision it issued Part 82 of the Civil Aviation Orders on 3 October 1990. Part 82 provides for the holder of an air operator's certificate to appoint a Chief Pilot. Under Clause 1.1 of Appendix 1 to Part 82, a person must not be appointed as a Chief Pilot unless the person's appointment has been approved in writing by the respondent. Under Clause 6.1 of the same schedule, "an approval may be cancelled or suspended at any time if, in the opinion of the Authority [i.e. the respondent_] the performance of the Chief Pilot is no longer of an acceptable standard."_ Prior to 11 August 1997, the applicant was appointed as Skytech's Chief Pilot. On that day a delegate of the respondent formed the opinion that the applicant's performance was no longer of an acceptable standard, and cancelled his approval as a Chief Pilot pursuant to Clause 6.1.

5. The respondent accepts that the applicant was entitled to apply to this Tribunal for the review of that decision pursuant to s.31(2) of the Act. Matthews J, as President of this Tribunal, held in Re Seaview Lord Howe Pty Limited and Civil Aviation Authority (1995) 21 AAR 506 that s.31(2) confers jurisdiction on this Tribunal in respect of a decision to suspend Chief Pilot approval. I have some doubts as to the correctness of that decision, particularly in the light of comments made by O'Connor J in Re Surf Air and Civil Aviation Authority [1991] AATA 50; (1991) 22 ALD 118 at 112. However, for the purposes of the respondent's application for the dismissal of the applications before the Tribunal, I will assume that all three applications are within the jurisdiction of the Tribunal.

6. The relevant provisions of s.31 of the Act read as follows:-

decision has the same meaning as in the Administrative Appeals Tribunal Act 1975,

(a) a refusal to grant or issue, or a cancellation, suspension or variation of, a certificate, permission, permit or licence granted or issued under this Act or the regulations; or

(b) the imposition or variation of a condition, or the cancellation, suspension or variation of an authorisation contained in such a certificate, permission, permit or licence.

(2) Application may be made to the Administrative Appeals Tribunal for review of a reviewable decision."

7. Skytech has not held an air operator's certificate since 31 October 1997. The respondent contends that, as a result, whatever the Tribunal might decide if it proceeds to review the decision to cancel the applicant's Chief Pilot approval, it will not be able to do anything that would be of any advantage to the applicant.

8. Skytech conducted a flying school. The appointment of the applicant to be the chief flying instructor of that flying school had been approved by the respondent under reg 5.58(1) of the Civil Aviation Regulations 1988 ("the regulations"). The second decision under review was a decision made on 11 August 1997 revoking that approval pursuant to reg 5.58(5).

9. The relevant provisions in reg 5.58 read as follows:-

"(1) CASA may approve the appointment of a person who holds approved qualifications to be the chief flying instructor of a flying school.

(5) CASA may, in writing, revoke a person's approval if:

(a) the person ceases to hold the approved qualifications; or

(b) there are reasonable grounds for believing that the person has contravened a condition to which his or her approval is subject; or

(c) it is necessary to do so in the interests of the safety of air navigation."

10. A decision by the respondent under reg 5.58(5) to revoke an approval of a person's appointment as a chief flying instructor constitutes a "reviewable decision" by virtue of paragraph (q) of the definition of that term in reg 297A(1). An application may be made to this Tribunal for the review of such a decision pursuant to reg 297A(2) of the regulations.

11. Skytech no longer operates a flying school. The respondent contends that, whatever the Tribunal might decide if it proceeds to review the decision to revoke the applicant's approval as a chief flying instructor, it will therefore not be able to make a decision that will be of any use to him.

12. Prior to the making of the third decision under review on 10 September 1997, the applicant held flying instructor ratings for aeroplanes and helicopters. Provisions are made as to the duration of such ratings in reg 5.17(1) of the regulations, which reads as follows:-

"A flight crew rating, or grade of flight crew rating, remains in force from the day on which it is issued, or renewed, until:

(a) the end of the period set out in the Civil Aviation Orders as the period for which a rating, or grade of rating, of the kind concerned remains in force; or

(b) the end of the period set out by CASA in a person's personal log book as the period for which the rating, or grade of rating, remains in force; or

13. The applicant's instructor rating for aeroplanes was to expire on 30 November 1997. His rating for helicopters was to expire on 11 March 1998. On 10 September 1997 a delegate of the respondent did two things. Pursuant to 5.38(1) of regulations, he required the applicant to undertake examinations for the issue a Grade 1 flight instructor rating (aeroplane) and a Grade 1 flight instructor rating (helicopter) to be held at Hervey Bay Airport on 23 and 24 September 1997. Secondly, he suspended the applicant's flight instructor ratings (aeroplane and helicopter) pursuant to reg.265(1) of the regulations. The relevant provisions in that sub-regulation read as follows:-

(b) a senior flying operations inspector requires the holder of a licence to undergo an examination under regulation 5.38; or

CASA may suspend the licence or authority by giving the holder of the licence or authority written notice of the suspension."

14. Because the applicant's flight instructor ratings would by now have expired in any event, the respondent contends that, whatever the Tribunal might decide if it proceeds to review the decision to suspend those ratings, it would not be able to make a decision that would be of any value to the applicant.

15. A decision by the respondent under reg 265(1) to suspend a flight crew rating falls within paragraph (b) of the definition of "reviewable decision" in reg 297A(1) of the regulations. An application for the review of such a decision can be made to this Tribunal pursuant to reg 297A(2).

16. Counsel for the applicant submitted that the findings of fact made by the respondent, on which the three decisions under review were based, are themselves reviewable by this Tribunal. For example, he contended that the Tribunal could review findings made on behalf of the respondent that the applicant was not a fit and proper person to hold Chief Pilot approval or to hold chief flying instructor approval. He submitted that such findings were reviewable even though they did not decide matters in a practical sense. He relied on four reported cases.

17. The first of these cases was Duncan v Defence Force Retirement and Death Benefits Authority [1980] FCA 58; (1980) 3 ALD 113, a decision of the Full Court of the Federal Court of Australia. The applicant in that case had retired from the Royal Australian Navy when he held the substantive rank of Commander, but the acting rank of Captain. The respondent in that case had made a decision which would have resulted in him receiving the superannuation payable to a retired Commander. This Tribunal, differently constituted, affirmed that decision. On appeal, it was argued that this Tribunal had no jurisdiction, but the Full Court held that it did. The right to apply to this Tribunal was conferred by s.99(2) of the Defence Force Retirement and Death Benefits Act 1973. That sub-section conferred a general right to apply on "A person who is affected by a decision of Authority and is dissatisfied with the decision". In s.99(1) of that Act, it was provided that the word "decision" had the same meaning as in the Administrative Appeals Tribunal Act 1975 ("the AAT Act"). The meaning of the word "decision" is dealt with in s.3(3) of the AAT Act, which provides as follows:-

"(3) A reference in this Act to a decision includes a reference to:

(a) making, suspending, revoking or refusing to make an order or determination;

(b) giving, suspending, revoking or refusing to give a certificate, direction, approval, consent or permission;

(c) issuing, suspending, revoking or refusing to issue a licence, authority or other instrument;

(f) retaining, or refusing to deliver up, an article; or

(g) doing or refusing to do any other act or thing."

18. The second case relied upon by counsel for the applicant was Director-General of Social Services v Hales [1983] FCA 81; (1983) 47 ALR 281, another Full Court decision. The respondent in that case had been overpaid by the Department of Social Security. The Director-General decided to seek recovery of the overpayment pursuant to s.140(1) of the Social Security Act 1947. The right to apply to this Tribunal was conferred by s.15A of the 1947 Act which provided as follows:

"(1) Where the Director-General has, on or after 9 September 1980 in pursuance of section 14 or 15, made a decision affirming, varying or annulling a determination, direction, decision or approval of an officer, being a determination, direction, decision or approval that has been reviewed by a Social Security Appeals Tribunal, then, subject to section 29 to the Administrative Appeals Tribunal Act 1975, an application may be made to the Administrative Appeals Tribunal for review of the decision of the Director-General."

19. The Full Court held that the decision to recover the overpayment constituted a decision that could be reviewed pursuant to s.15A.

20. The third case relied upon by counsel for the applicant was Attorney-General (Commonwealth) v State of Queensland (1990) 94 ALR 515. It was also a decision of the Full Court of the Federal Court of Australia. A Royal Commissioner was inquiring into the deaths of certain Aboriginals and Torres Strait Islanders in custody. He ruled that a particular man who died in custody was an Aboriginal whose death was within his terms of reference. The Full Court had to decide whether the Royal Commissioner's decision was reviewable under the Administrative Decisions (Judicial Review ) Act 1977. Their Honours held that it was. The meaning of the word "decision" is dealt with in s.3(2) of that Act, which is in substantially the same terms as s.3(3) of the AAT Act, which I have quoted above.

21. The fourth case relied on by counsel for the applicant was Secretary, Department of Social Security v Salvona (1989) 18 ALD 289, a decision of Lee J. The case concerned a decision made by a delegate of the Secretary to raise and recover an overpayment in respect of unemployment benefits overpaid to Mr. Salvona. At 299 Lee J suggested that, in reviewing the decision to raise and recover an overpayment, it might have been wrong for this Tribunal to consider exercising a discretion to waive such an overpayment. However, his Honour did not decide that point, and nothing else in his judgment concerns the scope of the jurisdiction of this Tribunal.

22. The first three cases relied upon by counsel for the applicant must all be distinguished from the present case because they all concern legislative provisions concerning general rights to apply to this Tribunal for the review of decisions of particular decision-makers, whereas the Act and regulations confer rights to apply for the review only of specific classes of decisions. I have already set out s.31(1) and (2) of the Act. The right to apply for review conferred by s.31(2) is concerned only with certificates, permissions, permits and licences. The right to apply that is conferred by reg. 297A(2) of the regulations relates to reviewable decisions as defined in reg 297A(1). The definition of "reviewable decision" in that regulation is long and detailed. Unless a particular decision falls within one of the 34 paragraphs of that definition, it is not a reviewable decision for the purposes of that regulation.

23. Unlike certain other Acts which give this Tribunal the power to review all decisions made by particular decision-makers, the scheme of the Act and regulations is such that only certain specific classes of decisions are reviewable by this Tribunal. I therefore reject the argument that some or all of the findings made on behalf of the respondent, on which the three decisions under review were based, are themselves decisions reviewable by this Tribunal.

24. Counsel for the respondent submitted that these proceedings can have a practical application, in that their outcome will affect the reputation, standing and employability of applicant. As I understand it, he contends that, whatever practical limitations there might be on the scope of the possible decisions that the Tribunal can make under s.43 of the AAT Act, it would be appropriate for the Tribunal to review the decisions under review and to make findings of fact as to such matters as the fitness of the applicant to hold Chief Pilot approval or chief flying instructor approval. However, for reasons which I will explain, I have come to the view that these proceedings can and should be dismissed if this Tribunal is unable to make a decision favourable to the applicant that has some practical effect, as distinct from a mere vindication of the applicant.

25. Counsel for the respondent relied upon a series of decisions as authority for the proposition that the Tribunal should dismiss any application before it when it would futile to proceed to review the relevant decision. The earliest of those cases was Re Vanderlouw and Civil Aviation Authority (Unreported AAT Decision 5591, 20 December 1989). The Tribunal on that occasion was constituted by Purvis and Moss JJ and Dr. D J Howell. The applicant sought an extension of time to apply for the review of a decision suspending his rating as an "air traffic controller aerodrome duties control". Had the rating in question not been suspended it would have lapsed prior to the matter coming before the Tribunal. The Tribunal concluded that for all practical purposes there was no decision that could be substituted for the one under review, and therefore dismissed the application for an extension of time.

26. In Re Gowing and Civil Aviation Authority [1990] AATA 56; (1990) 11 AAR 411, the applicant applied for the review of a decision to cancel his approval as an approved test officer, and of a decision to cancel his appointment as a chief flying instructor. The approval as an approved test officer, if it had not been cancelled, would have expired prior to the date when the matter came before the Tribunal. The office of chief flying instructor had been abolished by legislative amendment. Deputy President McMahon dismissed the application on the basis that there could not be any other or different decision substituted for the ones under review.

27. In Re Surf Air and Civil Aviation Authority [1991] AATA 50; (1991) 22 ALD 118, the applicant sought review of a decision purporting to cancel the approval of its Chief Pilot. This Tribunal, constituted by O'ConnorJ, took the view that it had no jurisdiction, for reasons that I need not go into. Her Honour went on to explain that, even if the Tribunal had jurisdiction to review the decision, it should not do so because new legislation made no provision for the appointment of a Chief Pilot, and therefore no sensible decision could be substituted for that under review.

28. In Re Williams and Australian Electoral Commission [1995] AATA 160; (1995) 38 ALD 366, an application to this Tribunal was dismissed pursuant to s.42B of the AAT Act by Mathews, Beaumont and Hill JJ. The decision under review was a decision to enter the name of a particular individual as the registered officer of a political party in the register kept under the Commonwealth Electoral Act 1918. The challenge related to the validity of the appointment of the individual as registered officer in respect of a period which expired on 22 December 1992. When the proceedings came before the Tribunal in 1995, their Honours held (at 374) that "the outcome of the proceedings, whether successful to the applicant or otherwise will be devoid of any practical effect."

29. The sorts of decision this Tribunal can make are listed in s.43(1) of the AAT Act, which provides as follows:-

"(1) 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:

(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. A decision under s.43(1)(a) of the AAT Act affirming any of the decisions under review would be of no benefit to the applicant. There is no scope for varying any of the decisions under review since each of them is, by its very nature, what one might call an all-or-nothing decision. If they were set aside, what could this Tribunal do? It would be futile to make a substituted decision reinstating the applicant's approval as a Chief Pilot for the period from 11 August 1997 to 31 October 1997. It would be futile to make a substituted decision restoring his approval as Skytech's chief flying instructor when Skytech no longer conducts a flying school. It would be futile to make a substituted decision restoring the applicant's flying instructor rating for aeroplanes for the period 10 September 1997 to 30 November 1997, or his flying instructor rating for helicopters for the period from 10 September 1997 to 11 March 1998. It would be futile for the Tribunal to remit any of the matters before it to the respondent for reconsideration when the most favourable result the applicant could achieve would be to obtain such decisions from the respondent rather than this Tribunal.

31. It is true that s.43(1) provides that "the Tribunal may exercise all the powers and discretions that are conferred any relevant enactment on the person who made the decision [i.e. the decision under review]". However the powers so conferred are not powers that this Tribunal may exercise at large, but are powers which may be exercised only for the purpose of reviewing the decision under review. The Full Court of the Federal Court of Australia stressed this point in Lees v Comcare [1999] FCA 753 at [39] and [50]. It follows that this Tribunal is unable to make any decision that would be of any practical benefit to the applicant.

32. The Tribunal has a discretion to dismiss the applicant's three applications by virtue of s.42B(1)(a) of the AAT Act which reads as follows:

"Where an application is made to the Tribunal for the review of a decision, the Tribunal may, at any stage of the proceeding, if it is satisfied that the application is frivolous or vexatious:

33. In this context, "frivolous" means "obviously unsustainable": Attorney-General of the Duchy of Lancaster v London and North Western Railway [1892] 3 Ch. 274. The cases of Gowing, Surf Air and Williams are all authority for the proposition that an application to this Tribunal may be dismissed on the ground that it is frivolous if the Tribunal is unable to make a decision that would be of any practical benefit to the applicant. Plainly this Tribunal will not be able to make a decision that will be of any practical benefit to the applicant, and it would be a waste of everyone's time and money for any of these three applications to be allowed to remain on foot. I have therefore decided to dismiss them all pursuant to s.42B(1)(a) of the AAT Act.

I certify that the 33 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President A M Blow OAM, QC.,

Signed: .....................................................................................

Solicitor for the Respondent Mr A Anastisi (Civil Aviation Safety Authority)