McWilliam v Civil Aviation Safety Authority

Specification - parachute operations in the vicinity of Barwon Heads aerodrome

Instrument CASA 36/04 is revoked. Note Instrument CASA 64/04, which purported to revoke Instrument CASA 36/04, was held by the Federal Court on 22 December 2004 to be invalid. 2 Application

This instrument applies to a person who is: (a) a member of the Australian Parachute Federation Inc or the Australian Skydiving Association; and (b) authorised to make a parachute descent by an authorisation in force under regulation 152 of CAR 1988. 3 Specification

A parachute descent may not be made within 4.8 kilometres of Barwon Heads aerodrome, Victoria (location indicator YBRS, reference point South 38° 15.5', East 144° 26.0').' 3 The substantive application which has been filed in this Court on 3 November 2006 seeks, as well as review under ss 5 and 6 of the AD(JR) Act, judicial review pursuant to s 39B(1)(A)(c) of the Judiciary Act 1903 (Cth) and s 23 of the Federal Court of Australia Act 1976 (Cth) which provides; 'The Court has power, in relation to matters in which it has jurisdiction, to make orders of such kinds, including interlocutory orders, and to issue, or direct the issue of, writs of such kinds, as the Court thinks appropriate.' 4 The evidence reveals a tortuous history of successive endeavours by CASA to promulgate instruments regulating or prohibiting descents by parachute in the vicinity of the Barwon Heads aerodrome. The matter has been complicated by the fact that the proceedings initiated by the present applicants in the Administrative Appeals Tribunal ("the AAT") have been impeded by a decision by Forgie DP of that Tribunal to the effect that decisions to make Instrument 130/05 and a predecessor instrument were not reviewable by the AAT. Accordingly, because Instrument 131/05 (which the learned Deputy President considered to be reviewable by the AAT) has the same operative effect as Instrument 130/05, she held that there is no utility in affording a review of the merits of the decision to issue the former instrument while Instrument 130/05 remains extant.

Submissions in support of the application 5 The applicants submitted that, pursuant to s 11(1)(c) of the AD(JR) Act, this Court has a general discretion to allow an application like the present to be brought after the expiration of the relevant time limit imposed by the AD(JR) Act. The applicants relied upon the principles set out by Wilcox J in Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344, as applicable to the Court's discretion to extend time.

Delay 6 The applicants contend that there is an acceptable explanation for their delay in bringing this application, arguing that a party who, by non-curial means, has continued to make the decision-maker aware that the propriety of the decision is in dispute, has a stronger claim to an extension of time than a party who has allowed the decision-maker to believe that the decision would no longer be called into question. Counsel for the applicants contend that they cannot be taken to have acquiesced in the validity of the decision to issue Instruments 130/05 and 131/05. In a related way, it has been argued that the applicants' attacks on the decisions to issue those Instruments turn solely on questions of interpretation of the Instruments themselves, the Civil Aviation Act 1988 (Cth), the Regulations, and the Air Safety Act 1995 (Cth).

Prejudice 7 The applicants submit that CASA would not suffer, and has not claimed that it would suffer, any prejudice if an extension of time were granted. Nor, they submit, has it been shown that such an extension would occasion actual or potential prejudice to any other persons, including those conducting aircraft operations at the Barwon Heads aerodrome.

Public interest 8 The applicants claim that this application affects only themselves and CASA, and raises no wider considerations of public interest. The two Instruments are said to be directed only at the applicants who are the only persons interested in conducting parachute descents at the Barwon Heads aerodrome. Although there are other operators of aircraft at the aerodrome, they are not within the class of "immediate parties", referred to by Wilcox J in Hunter Valley at 349, and are not part of the public at large in respect of whom a general public interest can be invoked.

Merits of the substantive application 9 The notice of motion was accompanied by the substantive application, which, according to the applicants, has strong prospects of success. They contend that the regulation of parachuting in this country has been entrusted to Air Services Australia, under the Air Services Act 1995 (Cth) and the Air Services Regulations. That legislation, they claim, confers authority on Air Services Australia, exclusively of CASA, to issue directions to parachutists and to regulate pilots in command of aircraft engaged in parachuting operations; see Aeronautical Information Publication ENR 5.5-4, par 2. However, they acknowledge that CASA has power, conferred by reg 152 of the Regulations, to issue directions that pertain to parachutists. That power has been exercised by the issue of Instrument 131/05, and by CASA's entry into a deed of agreement with the Australian Parachute Federation. 10 By contrast, the applicants claim, the express terms and statutory context of reg 92 support a narrow construction, and its application is limited to aerodromes, rather than airspace. "Aerodrome" is defined in the Civil Aviation Act as; '…an area of land or water (including any buildings, installations and equipment), the use of which as an aerodrome is authorised under the regulations, being such an area intended for use wholly or partly for the arrival, departure or movement of aircraft.' 11 The applicants contend that this narrow application is supported by the existence of other parts of the Regulations which deal specifically with airspace and collision avoidance. Accordingly, they contend that the decision to issue Instrument 130/05 should be struck down as exceeding the power conferred by reg 92 pursuant to which it was purportedly made. 12 The applicants further invoke, in support of the merits of their application, the fact that the AAT has decided on two occasions that the decision to make Instrument 130/05 is not reviewable under the Administrative Appeals Tribunal Act 1975 (Cth) ("the AAT Act") because it prohibited the making of parachute descents within 4.8 kilometres of the Barwon Heads aerodrome, and was not a decision; '(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;' or otherwise within s 3(3) of the AAT Act. 13 The applicants claim that they will sustain substantial losses if they are precluded, by a refusal of an extension of time, from obtaining a review on the merits by the AAT of CASA's operative decision to prohibit parachute descents at the Barwon Heads aerodrome.

Conduct of CASA 14 The applicants allege that, for a lengthy period, CASA has so conducted itself as to "excite some optimism" that, subject to certain conditions, parachuting operations could resume in the vicinity of the Barwon Heads aerodrome. That conduct is advanced as explaining the delay of the applicants in bringing this application. They also claim that, at all material times, CASA has been aware that the applicants have disputed CASA's power to issue Instrument 130/05. 15 Under cover of a letter dated 6 June 2005, CASA sent to the applicants for their consideration draft Instruments which would have enabled the resumption, subject to conditions, of parachute descents at the Barwon Heads aerodrome. Further, at a directions hearing in the AAT in August 2006, CASA advised that it required six weeks to seek instructions as to whether Instrument 130/05 could be withdrawn to allow the merits review of the decision in relation to Instrument 131/05 to proceed in the AAT. On 28 September 2006, CASA advised the applicants that it would not revoke either Instrument 130/05 or 131/05, whereafter the applicants deferred their AAT proceedings pending an application to this Court in relation to Instrument 130/05 which, it was hoped, would resolve the impasse. To this point, according to the applicants, they had continued to believe that a resolution might be achieved which would allow the resumption of parachute descents at the Barwon Heads aerodrome. 16 On the question of costs, the applicants referred to Wedesweiller v Coles (1983) 47 ALR 528, and said that the similarity of the issues in the present case justified an order that the costs of the application for extension of time be reserved, rather than the more normal order that the respondent's costs be paid by the applicants.

CASA's submissions 17 CASA opposed each of the orders sought by the applicants in their notice of motion.

Issues pertaining to the relief sought 18 Counsel for CASA first contended that the substantive application did not disclose on its face how the applicants claimed to be entitled to relief under s 39B of the Judiciary Act, and did not clearly identify a "matter" in the constitutional sense, discussed by Branson J in Mirvac Homes (NSW) Pty Limited v Air Services Australia (No 1) [2004] FCA 109. Accordingly, CASA contended, although the applicants may be affected by the Instruments in question, they were not persons who were bound to observe the directions of Instrument 130/05, and therefore could point to no immediate right or liability which would be established by their application to this Court.

Delay 19 CASA next submitted that the applicants had been guilty of undue delay in bringing their application under the AD(JR) Act and their proferred explanation for the delay was not persuasive. The period of delay, so this argument went, was 18 months, being the period between 6 April 2005 when the decision to issue Instrument 130/05 had been made and 3 November 2006 when application was made to this Court. Before and during that period, the applicants had applied to the AAT on two occasions, the first being in relation to the previous instruments issued by CASA, and the second application being directed to Instruments 130/05 and 131/05 currently under challenge. On each occasion, the applicants had been unsuccessful, and the last ruling of the AAT was delivered on 11 November 2005. In CASA's submission, the applicants should have been aware, before their second application to the AAT, that the outcome was likely to be similar to the first. By electing to traverse the same ground, the applicants had caused unnecessary delay. 20 Although it acknowledged that the applicants may have hoped that they would receive a favourable exercise by CASA of its power to revoke Instrument 130/05, their election to attempt to resolve the dispute by non-curial means assimilated them to persons who seek a favourable exercise of the Minister's power under s 417 or s 351 of the Migration Act 1958 (Cth), rather than seeking judicial review of the decision of the relevant Tribunal; see Applicant A2 of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 576, per von Doussa J; Batuwantudawa, in the matter of an application for Writs of Certiorari and Prohibition against Ruddock [2003] FCA 684, per Gray J.

Utility 21 CASA next contended that the present application may have no utility if other litigation in this Court between the applicants and a part owner of the Barwon Heads aerodrome ["Begg"] were resolved in a certain way. In this context, reference was made to par 69 of an affidavit sworn in support of the present application by the applicants' solicitor where it is deposed; 'If McWilliam was unsuccessful in the Begg proceeding he would have no contractual right to operate his business at BHA. The questions surrounding the validity of the instruments with CASA would then become purely academic. Both CASA legal counsel and myself were conscious of the large amount of costs incurred by the parties to date in the various disputes pertaining to the instruments. Whilst there was no specific agreement between myself and CASA legal counsel as such, the AAT proceedings were effectively put on hold pending a possible resolution of the Begg proceeding. I had undertaken to keep CASA legal counsel apprised of any developments or progress in the Begg proceeding which might have assisted CASA and myself in resolving the issue of the CASA instruments.' (emphasis added)

Prejudice 22 CASA claims that it would suffer prejudice if the orderly basis upon which it had promulgated the Instruments were disrupted. It also contends that other users of Barwon Heads aerodrome have continued to rely on the protection afforded by Instrument 130/05, and this is a further factor to be considered by the Court in the exercise of its discretion.

Anshun estoppel 23 In relation to the substantive application for judicial review on the ground that Instrument 130/05 was ultra vires, CASA notes that the applicants did not raise this issue when the same parties were in this Court in proceedings heard by Selway J in December 2004. It was said that the general principle recognised in Port of Melbourne Authority v Anshun Proprietary Limited (1981) 147 CLR 589 applies to applications for judicial review, so that the applicants, having had a full opportunity to ventilate before Selway J in 2004 the validity of the predecessor of Instrument 130/05, should now be precluded from litigating that issue.

Administrative character 24 CASA also questioned whether the impugned decision to issue Instrument 130/05 was of an "administrative character", as required by the definition of "decision to which this Act applies" in s 3(1) of the AD(JR) Act. Instrument 130/05, it was noted, has been registered as an Instrument under the Legislative Instruments Act 2003 (Cth).

Costs 25 CASA contends that, consistently with the order of Wilcox J in Hunter Valley (supra), at 353, the applicants should pay CASA's costs of the application for an extension of time in any event.

Reasoning on the application for extension of time 26 A convenient summary of some of the principles which should guide the exercise of the discretion conferred by s 11(1)(c) of the AD(JR) Act is still to be found, as the submissions of the parties in the present proceedings confirm, in the reasons of Wilcox J in Hunter Valley. His Honour there observed, at 348; '1. Although the section does not, in terms, place any onus of proof upon an applicant for extension an application has to be made. Special circumstances need not be shown but the Court will not grant the application unless positively satisfied that it is proper so to do. The "prescribed period" of 28 days is not to be ignored (Ralkon v Aboriginal Development Commission (1982) 43 ALR 535 at 550). Indeed it is the prima facie rule that proceedings commenced outside that period will not be entertained (Lucic v Nolan (1982) 45 ALR 411 at 416). It is a pre-condition to the exercise of discretion in his favour that the applicant for extension show an "acceptable explanation of the delay" and that it is "fair and equitable in the circumstances" to extend time (Duff at 485; Chapman v Reilly, unreported (Federal Court of Australia, Neaves J., 9 December 1983) at 7).

Action taken by the applicant, other than by making an application for review under the Act, is relevant to the consideration of the question whether an acceptable explanation for the delay has been furnished. A distinction is to be made between the case of a person who, by non-curial means, has continued to make the decision maker aware that he contests the finality of the decision (who has not "rested on his rights": per Fisher J in Doyle v Chief of Staff (1982) 42 ALR 283 at 287) and a case where the decision maker was allowed to believe that the matter was finally concluded. Compare Doyle, Chapman, Ralkon and Douglas v Allen (1984) 1 FCR 287 with Lucic at 414-415 and Hickey v Australian Telecommunications Commission (1983) 48 ALR 517 at 519. The reasons for this distinction are not only the "need for finality in disputes" (see Lucic at 410) but also the "fading from memory" problem referred to in Wedesweiller v Cole (1983) 47 ALR 528).

Any prejudice to the respondent including any prejudice in defending the proceedings occasioned by the delay is a material factor militating against the grant of an extension: see Doyle at 287, Duff at 484-485, Hickey at 525-527 and Wedesweiller at 533-534.

However, the mere absence of prejudice is not enough to justify the grant of an extension: Douglas at 18, Lucic at 416, Hickey at 523. In this context, public considerations often intrude (Lucic, Hickey). A delay which may result, if the application is successful, in the unsettling of other people (Ralkon at 550, Becerra at 12-13) or of established practices (Douglas) is likely to prove fatal to the application.

The merits of the substantial application are properly to be taken into account in considering whether an extension of time should be granted: Lucic at 417, Chapman at 6.

Considerations of fairness as between the applicants and other persons otherwise in a like position are relevant to the manner of exercise of the Court's discretion: Wedesweiller at 534-535.

In considering the authorities it is, I believe, important to bear in mind the point made by Sheppard J in Wedesweiller at 531, relating to the diversity of decisions of to which review may be sought under the Act:

". . . there will be some cases which may be decided upon considerations which affect only the immediate parties. It will be appropriate to consider whether the delay which has taken place has been satisfactorily explained, the prejudice which may be caused to an applicant by the refusal of an application, the prejudice which may be suffered by the Government or a particular department if the application is granted and, generally, what the justice of the case requires. In other cases wider considerations will be involved." He went on to mention the reference to public interest made by Fitzgerald J in Lucic at 416.

It is in relation to the former category of cases, ie those "which affect only the immediate parties" that the approach adopted by Bray CJ in Lovatt v LeGall (1975) 10 SASR 479 at 485 in respect of private litigation but adopted in this context in both Doyle at 287 and Duff at 485, is apposite namely:

"If the defendant has suffered no prejudice, as when he was well within the limitation period of the plaintiff's claim, or where the excess period of time is small, or where he cannot show that he has lost anything by reason of the delay, it may well be that the Court will not find it difficult to come to the conclusion that it is fair and equitable in the circumstances to grant extension". By contrast, in cases involving public administration, especially day to day matters such as personnel management, the public interest may well dictate refusal of an extension even after only a short delay.

I now turn to an application of the principles I have summarized to the facts of this case. Mr Bennett argues that the applicants have not made out a case for extension so as to displace the prima facie rule that an application shall be made within twenty-eight days of the relevant decision. Expressed another way, there is no "acceptable explanation" of the delay.'

27 I have taken that distillation of the authorities as a guide, influenced by the caution expressed by Sheppard J in Wedesweiller at 531 in a passage which preceded that quoted by Wilcox J in Hunter Valley at 349. I have also treated Principle 1 in Wilcox J's exposition as modified by the gloss put on it by a Full Court of the Supreme Court of Victoria in Dix v Crimes Compensation Tribunal [1993] 1 VR 297. That gloss was to the effect that it is not a pre-condition to the exercise of discretion that an applicant show an "acceptable explanation of the delay." 28 Although eighteen months have elapsed between CASA's decision to issue Instruments 130/05 and 131/05 and the making of the present application, the delay has been attributable, in part, to initiatives taken by CASA in an entirely understandable attempt to achieve a regime for the conduct of parachute descents at Barwon Heads aerodrome which had the assent of all interested parties. Part of that initiative was to propose the draft Instruments to which the letter of 6 June 2005, noted at [15] of these reasons, was related. It may be conceded that the applicants' somewhat leisurely prosecution of their proceedings in the AAT contributed to the lapse of over twelve months before CASA requested, in August 2006, a period of six weeks in which to obtain instructions as to whether it would revoke Instrument 130/05. After CASA's unequivocal intimation, on 28 September 2006, that both Instruments 130/05 and 131/05 would remain in force, the applicants proceeded with reasonable expedition to prepare their substantive application in this Court and seek an extension of time within which to lodge it. 29 I do not regard the present case as on all fours with Applicant A2 of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 576 where von Doussa J observed, at [9]; ' … … I do not think the delay is satisfactorily explained by the fact that the applicant hoped during that time to get a favourable exercise of the Minister's power under s 417. The application under s 417 indicates an acceptance of the decision of the Tribunal, and a decision on the part of the applicant to take another course. Having taken that other course, in my opinion he must live with the consequence of the delay that occurred.' See also Batuwantudawa, in the matter of an application for Writs of Certiorari and Prohibition against Ruddock (supra) per Gray J, at [9]. 30 In the present case, as the history makes clear, the applicants have consistently intended to procure a review by the AAT of the merits of the decision to issue either or both Instruments 130/05 and 131/05. The only time at which they could be taken to have resiled from that intention was while there was a prospect of those Instruments being replaced by versions more favourable to the applicants which had been forwarded under cover of CASA's letter of 6 June 2005. By contrast with Applicant A2 of 2002 and Batuwantudawa, there was no acceptance by the applicants of the validity of the decision to issue either Instrument 130/05 or 131/05. 31 I have also been influenced, in considering the effect of delay on the exercise of the Court's discretion, by the absence of any suggested prejudice flowing from the delay to CASA's ability to defend, under the AD(JR) Act, the decision to issue Instrument 130/05. As I understand it, the challenge to that decision turns entirely on the interpretation of legislative provisions relied on as the source of power to make the Instrument. CASA's case by way of upholding the validity of the Instrument will, therefore, not call in aid any exercise of discretion or other matter on which the recollection of a decision-maker or the existence of contemporaneous records could bear. Consequently, CASA is in as good a position now to resist the substantive application as it would have been had the application been lodged in May 2005. 32 I have not been persuaded that what Wilcox J, in discussing the Principle 4 identified in Hunter Valley, called "public considerations" ought to be allowed much weight in balancing the factors tending for and against an extension of time. It is true that other users of the aerodrome, including Begg, have had the advantage, since April 2005 of the effective prohibition on parachuting brought about by Instruments 130/05 and 131/05. However, there is no evidence that those other users have substantially altered their practices in reliance on the absence of a challenge to either Instrument. The inference which I prefer is that those other users have been aware of the applicants' concern to challenge, in the AAT and elsewhere, the validity of the decision to issue the Instruments and have not been lulled into a false sense of security by the applicants' failure before now to lodge an application under the AD(JR) Act. Moreover, even if the substantive challenge to Instrument 130/05 were to succeed, other users of the aerodrome would largely be protected by the continuance in effect of Instrument 131/05. If that protection were, for some reason, perceived to be inadequate, an appropriate stay or other interim order by this Court, when finally determining the challenge to Instrument 130/05, could remedy the deficiency. 33 I have not been influenced by the partly parallel proceeding between the applicants and Begg which is pending in this Court; see [21] above. That action is listed for trial in December 2006 and will almost certainly be determined, at least at first instance, before the present substantive application against CASA comes on for hearing. Accordingly, if, as has been contended it may, the judgment in the Begg litigation renders academic the issues between the applicants and CASA, account can be taken of that effect without irremediable prejudice to either party. 34 It is inappropriate, I consider, to conduct, at this stage, a detailed examination of the applicants' prospects of success on the substantive application. Such an examination would include an assessment of CASA's invocation of the principles of Anshun estoppel. Whether that principle is available to bar the applicants from relief under the AD(JR) Act or s 39B of the Judiciary Act will depend on a detailed scrutiny of the claims advanced in the applications heard by Selway J, the conduct of the parties to those proceedings and how his Honour chose to resolve the issues which were raised for determination. Similar considerations apply to the contention that the decision to issue Instrument 130/05 was not "a decision of an administrative character" within the meaning of s 3(1) of the AD(JR) Act. On its face it was a decision by a Commonwealth authority under "an enactment" as defined in par (a) or (c) of the definition of that expression in s 3(1) of the AD(JR) Act. 35 It is sufficient, in my view, for the purposes of exercising the present discretion, that the applicants have a reasonable prospect, if the extension be granted, of obtaining the relief which they seek under the AD(JR) Act. The weight to be given to that factor is, if anything, enhanced by the consideration raised by CASA that, absent the claim for relief under the AD(JR) Act, this Court may lack jurisdiction to entertain the applicants' substantive claim because it does not raise a "matter … arising under any laws made by the Parliament" within s 39B(1)(A) of the Judiciary Act. The complexities which may attend the resolution of that issue have been clearly signalled by Branson J in Mirvac Homes (NSW) Pty Limited v Airservices Australia (No 1) [2004] FCA 109. It is sufficient for present purposes to observe that a discretionary extension of time should not be withheld, in the absence of other factors militating against an extension, if an applicant will thereby be put at risk of a complete denial of a resolution on the merits of a controversy which he or she seeks to raise. That is particularly so where, as here, the controversy is as to a question of public law as fundamental as whether an instrument promulgated by a statutory authority like CASA is ultra vires. The weight to be attached to this consideration which has proved decisive in my exercise of the discretion, has been increased by the recollection that, in the events which have happened, a failure by the applicants to obtain a resolution of the question just identified in relation to Instrument 130/05 will indefinitely shut them out from merits review by the AAT of the decision to issue Instrument 131/05.

Conclusion 36 For the reasons outlined above, the applicant should have an extension of time within which to make application under the AD(JR) Act. I shall, therefore, order that the time for lodging the substantive application be extended to 3 November 2006 and that the application filed on that date be deemed to have been lodged pursuant to that extension of time. I have not acceded to the submission of Counsel for the applicants that the costs of the motion for extension of time should be reserved. That is because the Court will be in no better position at any time in the future than it is now to exercise its discretion as to those costs. Consistently with the approach taken by Wilcox J in Hunter Valley, (supra) at 353, I consider that the applicants should pay CASA's costs of that motion. I certify that the preceding thirty-six (36) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Ryan.

Counsel for the Applicants: Mr J Langmead SC with M J Ribbands

Solicitor for the Respondent: Adam Anastasi, Civil Aviation Safety Authority