Repacholi Aviation Pty Ltd v Civil Aviation Safety Authority [2011] FCAFC 122 | Case summary

REASONS FOR JUDGMENT GRAY J: 1 I agree with the orders proposed by Justice Rares and with his Honour's reasons. I add only that this appeal was brought from the exercise of the discretion of the primary judge in a matter of practice and procedure. By the orders that his Honour made on 11 December 2009, the primary judge exercised his discretion in a way that was favourable to the appellants. Indeed, it is difficult to see how the appellants could have obtained from the Court on appeal any orders more favourable to their interests than those that were made. 2 The Court being unanimously of the view that the appeal should be dismissed with costs, the order of the Court is:

The appeal be dismissed.
The appellants pay the respondents' costs of the appeal. I certify that the preceding two (2) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gray.

The circumstances in which the orders were made 5 The primary judge gave detailed and extensive reasons for coming to the conclusions that he did. In paragraph 167 of his reasons for judgment he said: "167 I accept the respondents' submissions that the pleading of misfeasance and/or lack of good faith should be struck out. The applicants' allegation of misconduct by individual CASA officers who have made administrative decisions or are the signatory of various instruments are totally speculative. They are allegations without foundation. There is no factual basis pleaded for the assertions and the frank concessions made in the course of argument by senior counsel for the applicants makes it clear that the applicants have no material at present on which they can properly bring a claim against officers of CASA for acting in bad faith or, alternatively, acting recklessly. These pleadings are simply accusations made which on their face are vexatious. If the pleading survives and if discovery is given and additional material comes to light, the position may theoretically change. For present purposes, however, there is no basis upon which any of the claims against the individual officers can be maintained. All of the claims against the individuals in this proceeding will be struck out and/or disallowed in terms of any existing application to amend." 6 When senior counsel for the appellant opened the argument, the court enquired how ground 1 of the amended notice of appeal was maintainable having regard to his Honour's orders. He contended that his Honour had effectively made a decision under s 31A of the Federal Court of Australia Act 1976 (Cth) dismissing the claims of misfeasance. That submission was effectively abandoned during the course of argument because his Honour did not give judgment in accordance with s 31A(2) of the Federal Court of Australia Act for the respondents against the appellants in respect of their claims for misfeasance in a public office. Indeed, as his Honour pointed out at [167] of his reasons, it may be possible, if additional material came to light, for the appellants to make a further application to amend in order to raise those claims. The gravamen of what his Honour decided was effectively that the material presently adduced in evidence before him, and the way in which the existing statement of claim and its proposed amendment had been pleaded, did not sufficiently identify the material facts upon which the appellants sought to base their allegations of misfeasance in a public office. 7 The proposed amendment sought to join a further four respondents who were officers of the Authority in addition to the existing second respondent who, himself, was such an officer. It was in the form of a minute or draft of the proposed amended pleading. This was in accordance with what the Court was informed is the practice in Western Australia when parties seek to amend. That is, they provide to the Court a minute or draft of their proposed amendment without necessarily filing a motion in support of such an amendment. Since this matter was fully argued, his Honour was appraised of the fact that he was being asked to join additional respondents and to permit an expansion of the allegations of misfeasance. 8 When pressed to identify the errors that his Honour made which would justify the Full Court concluding that their appeal should be allowed, senior counsel for the appellants pointed to the primary judge's finding that senior counsel had made concessions. He argued that his Honour's identification in [167] of his reasons of the concessions counsel made went wider than in fact those that he had made. 9 Whether or not his Honour's finding of the concessions made was wider than what, in fact, senior counsel had stated, the substantial position at which his Honour arrived was indubitably correct on the material before him. Senior counsel for the appellants was unable to identify any material outside the pleadings and allegations in them on which the claim for misfeasance in a public office, as then pleaded and proposed to be pleaded, could be made. Accordingly, no basis for concluding that his Honour made any material error appears. But, even if he had, this has not been shown to have caused any injustice to the appellants. 10 Secondly, the appellants contended that his Honour erred in taking into account the fact that they had not sought preliminary discovery before bringing proceedings in circumstances where they were commenced just in advance of the expiry of the limitation period for their earlier pleaded causes of action. They contended that his Honour should not have used their failure to seek preliminary discovery as a basis for limiting the scope of their current or proposed pleadings, as he described in [167] of his reasons. 11 No sufficient explanation was advanced before us to justify why the current or proposed pleadings were filed so close to the expiry of the limitation period and why no preliminary discovery had been sought to ascertain whether such a case, as is now sought to be made, of misfeasance in a public office was, in fact, one which could then have been brought. 12 Accordingly, there is no reason to think that his Honour erred in concluding that it was not appropriate to permit the current pleading to stand or the proposed amendment to be made in circumstances where the appellants were unable to identify any substantive material that would support the serious allegations that the respondents and proposed respondent individual officers of the Authority, had engaged in activities amounting to misfeasance of a public office. 13 It is important to bear in mind that in appeals of this kind, appellate courts exercise particular caution in considering whether or not they ought to interfere with discretionary exercises of a trial judge's or docket judge's discretions on matters of practice and procedure. The constraints have been stated by Sir Frederick Jordan CJ in his oft cited reasons in In Re Will of FB Gilbert (Dec'd) (1946) 46 SR (NSW) 318 at 323; in a passage approved by Gibbs CJ, Aickin, Wilson and Brennan JJ, in Adam P Brown Male Fashions Pty Limited v Philip Morris Inc (1981) 148 CLR 170 at 177. Sir Frederick Jordan said: "... I am of opinion that ... there is a material difference between an exercise of discretion on a point of practice or procedure and an exercise of discretion which determines substantive rights. In the former class of case, if a tight rein were not kept upon interference with the orders of Judges of first instance, the result would be disastrous to the proper administration of justice. The disposal of cases could be delayed interminably, and costs heaped up indefinitely, if a litigant with a long purse or a litigious disposition could, at will, in effect transfer all exercises of discretion in interlocutory applications from a Judge in Chambers to a Court of Appeal." 14 In this case, the proposed amendment to the statement of claim was the seventh articulation of the appellants' desire to raise a case of misfeasance in a public office. Indeed, they sought to put before this Full Court what, we were told, was a further, and apparently their twelfth, attempt to plead the matters on which they seek to rely. We refused leave to rely on that last proposed pleading on the basis it had not been before the primary judge and was not relevant for the purposes of demonstrating any error by him in the exercise of his discretion. 15 Having considered carefully both his Honour's reasons and the written and oral submissions of the appellants that seek to identify error by his Honour such as would warrant the intervention of this Court, I am satisfied that his Honour came to a conclusion that was not only open to him but was correct. For these reasons, I would dismiss the appeal and order the appellants to pay the respondents' costs. I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Rares.

Repacholi Aviation Pty Ltd v Civil Aviation Safety Authority

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