Sullivan v Civil Aviation Safety Authority

Reasoning of the Tribunal 4 The Tribunal was bound by the same statutory provisions as CASA (s 43(1) of the Administrative Appeals Tribunal Act 1975 (Cth)). CASA is established by the Civil Aviation Act 1988 (Cth). Section 3A of the Civil Aviation Act provides that: The main object of this Act is to establish a regulatory framework for maintaining, enhancing and promoting the safety of civil aviation, with particular emphasis on preventing aviation accidents and incidents. 5 CASA's functions are set out in s 9 and include "the function of conducting the safety regulation of… civil air operations in Australian territory" by means that include "issuing certificates, licences, registrations and permits" (s 9(1)(e)). By s 9(3)(a) CASA also has the function of "cooperating with the Australian Transport Safety Bureau in relation to investigations under the Transport Safety Investigation Act 2003 that relate to aircraft". 6 Section 9A(1) provides that: In exercising its powers and performing its functions, CASA must regard the safety of air navigation as the most important consideration. 7 Division 3 of Pt III of the Civil Aviation Act deals with general offences relating to aircraft. By s 30A if a person is convicted of an offence against the Act or the Civil Aviation Regulations 1988 (Cth) (the Regulations) and a court of competent jurisdiction considers that it is in the interests of air navigation safety for the person to be excluded from an activity authorised by a civil aviation authorisation, the court may order that the person be excluded from that activity for the period specified in the order (the exclusion period). The exclusion period may be indefinite (s 30A(3) of the Civil Aviation Act). 8 The regulation-making power in s 98(3)(c) of the Civil Aviation Act extends to regulations "requiring persons performing specified functions in relation to the operation or maintenance of aircraft and aerodromes to be the holders of licences, permits or certificates of specified kinds, and providing for the grant, issue, cancellation, suspension or variation of such licences, permits and certificates". 9 Regulation 269 includes the following provisions: (1) Subject to this regulation, CASA may, by notice in writing served on the holder of an approval, authority, certificate or licence (an authorisation), vary, suspend or cancel the authorisation if CASA is satisfied that one or more of the following grounds exists, namely: (a) that the holder of the authorisation has contravened, a provision of the Act or these Regulations, including these regulations as in force by virtue of a law of a State; (b) that the holder of the authorisation fails to satisfy, or to continue to satisfy, any requirement prescribed by, or specified under, these Regulations in relation to the obtaining or holding of such an authorisation; (c) that the holder of the authorisation has failed in his or her duty with respect to any matter affecting the safe navigation or operation of an aircraft; (d) that the holder of the authorisation is not a fit and proper person to have the responsibilities and exercise and perform the functions and duties of a holder of such an authorisation; (e) that the holder of the authorisation has contravened, a direction or instruction with respect to a matter affecting the safe navigation and operation of an aircraft, being a direction or instruction that is contained in Civil Aviation Orders. (1A) CASA must not cancel an authorisation under subregulation (1) because of a contravention mentioned in paragraph (1)(a) unless: (a) the holder of the authorisation has been convicted by a court of an offence against a provision of the Act or these Regulations (including these Regulations as in force by virtue of a law of a State) in respect of the contravention; or (b) the person was charged before a court with an offence against a provision of the Act or these Regulations (including these Regulations as in force by virtue of a law of a State) in respect of the contravention and was found by the court to have committed the offence, but the court did not proceed to convict the person of the offence. (2) A notice under subregulation (1) shall set out the grounds for the decision. (3) Before taking action under this regulation to vary, suspend or cancel an authorisation, CASA must: (a) give notice, in writing, to the holder of the authorisation of the facts and circumstances that, in the opinion of CASA, warrant consideration being given to the variation, suspension or cancellation of the authorisation under this regulation; and (b) allow the holder of the authorisation to show cause, within such time as CASA specifies in that notice, why the authorisation should not be varied, suspended or cancelled under this regulation. 10 On 3 January 2012 a delegate of CASA decided to cancel Mr Sullivan's commercial pilot (helicopter) licence following an investigation into a crash on 30 March 2010 of a helicopter VH-HCQ (HCQ) when Mr Sullivan was the pilot carrying two passengers, Leslie Smale and Alan Mole, both officers of the Roper Gulf Shire Council. Mr Sullivan applied to the Tribunal for a review of the cancellation decision. 11 After identifying the relevant statutory provisions, the Tribunal explained in its reasons for decision (Sullivan and Civil Aviation Safety Authority [2013] AATA 425) that the Council officers were trying to get from Katherine to Numbulwar, a remote community in the Northern Territory, with equipment, to assist in reconstruction plans for that area after a cyclone (at [8]). The Tribunal continued as follows: 9. Mr Sullivan was, either directly or through a corporate entity, the proprietor of Flying Fox and of the helicopter HCQ. Flying Fox was on the Roper Highway roughly halfway between Katherine and Numbulwar and a little to the south of a direct line between those towns. It is relevant to note that to the north east of Flying Fox, on route to Numbulwar, is the township of Roper Bar. Some idea of the distances involved can be gained by reference to the flying times between the four centres in an R-44 which has a normal cruising speed of 100 knots. A trip from Katherine to Flying Fox would take 63 minutes, from Flying Fox to Roper Bar 19 minutes and from Roper Bar to Numbulwar 45 minutes. … 11. …The Council wanted Mr Smale and Mr Mole, together with an 8kVA portable generator, two chainsaws and associated equipment and the personal effects of Mr Smale and Mr Mole, taken from Katherine to Numbulwar. Mr Sullivan agreed to do so, using HCQ… 12. Mr Sullivan says, but it is put in issue by CASA, that having agreed to undertake the flight to Numbulwar he telephoned his personal assistant at Flying Fox, Ms Anna Parsissons, and asked her to arrange for another employee Brad (his surname did not emerge during the hearing) to drive with two large drums of aviation fuel to Roper Bar against what was then the possibility that it might be necessary to first fly the two men and equipment from Flying Fox to Roper Bar and then re-assess the weather and other conditions and if necessary, refuel HCQ at Roper Bar. Ms Parsissons says that she arranged for Brad to do that and that he left Flying Fox with the fuel prior to the arrival of Mr Sullivan and the return of HCQ. As will appear, there is a contest on the evidence whether Brad was present at Flying Fox when HCQ returned from Katherine and was being prepared for the next flight… 14. There is considerable controversy about the events thereafter however it seems to be uncontroversial that Mr Sullivan fitted two cargo pods to brackets attached to the skids on HCQ, that some, at least, of the Council's equipment was stowed on board or in the cargo pods and that two 20 litre jerry cans, empty on Mr Sullivan's case but likely full on CASA's case, were loaded in to the cargo pods. The generator, which it is common ground weighed 80 kilograms, was placed in the rear starboard side passenger's seat immediately behind the pilot's seat. It was secured by a seat belt. Mr Sullivan says that it was secured, as well, by another strap attached to the seat. For reasons explained below I do not accept that to be the case. 15. Mr Smale sat in the front passenger seat and Mr Mole in the rear portside seat. On arrival from Katherine HCQ had been positioned in front of, and with its nose towards, a hangar. From that position the wind was coming from behind Mr Sullivan's right shoulder, around his 5 o'clock position. HCQ, piloted now by Mr Sullivan, performed some manoeuvres which resulted in HCQ moving away from the hangar and facing into the wind for take-off. It is now common ground that HCQ had a take-off weight in excess of the manufacturer's maximum take-off weight of 1089 kilograms. Mr Sullivan says that he was not aware of that at the time having, he says, calculated, and recorded, a take-off weight of 1060 kilograms. 16. HCQ took off into the wind and according to Mr Sullivan, gained "translational lift" after 20 or 30 metres. Translational lift is the consequence of air moving across the disc once forward speed is achieved. It has the effect of reducing induced flow and thus increasing rotor thrust. Mr Sullivan then says that at around 15 feet HCQ was hit from behind by a very strong gust of wind which reduced the airspeed and caused the helicopter to sink. He says that he lost translational lift as a result and that he then looked for a place to run HCQ onto the ground, that is, to slide to a standstill on its skids. He succeeded in doing so but the starboard skid clipped a fence post and HCQ turned over. In that process Mr Smale was struck from behind by the generator and blacked out briefly. On impact the generator crashed down on top of Mr Mole. It landed hard on his throat such that he had to force his arm from under it to hold it up so that he could breathe. Fuel from the generator's tank leaked into his eyes and mouth and soaked his clothing. Mr Smale re-entered HCQ to assist Mr Mole by unclipping his seatbelt. 12 At [19] the Tribunal recorded that, on the following day, Mr Sullivan (in accordance with his obligations under s 19 of the Transport Safety Investigation Act 2003 (Cth)) notified the Australian Transportation and Safety Bureau (ATSB) about the accident. The Tribunal said: It is relevant to note that the document described the type of operation as "aerial work" instead of the correct description "charter", it made no reference to the dangerous goods that were being carried, the fuel in the generator and chainsaw, and represented that there had been no injuries to crew or to passengers. 13 The Tribunal recorded at [20] that some months later in August 2010 Mr Smale contacted the ATSB in relation to his own claim for worker's compensation. Mr Smale's version of events differed from Mr Sullivan's notification, causing the ATSB to refer the incident to CASA for investigation. The investigation led to Mr Sullivan being charged with three criminal offences. At [21] to [22] the Tribunal summarised those charges and the penalties imposed consequential upon Mr Sullivan's plea of guilty to each charge as follows: 21. In May 2012 Mr Sullivan pleaded guilty in the Magistrates Court to three offences. The first, under reg 215(9) of the Regulations, was that in the flight of HCQ on the afternoon of 30 March 2010 he failed to comply with the instructions contained in the operations manual of HCQ in the following respects: he loaded, or authorised the loading, of a generator weighing in excess of 77 kilograms (the maximum permissible weight in an unoccupied seat) on an unoccupied seat, that generator being restrained only by a seatbelt (contrary to a prohibition in the operations manual) and not by an approved cargo restraint (as the manual stipulated); he failed to give any or any adequate passenger briefing; he failed to weigh the passengers; he failed to comply with the Dangerous Goods Appendix of the operations manual; he failed to plan the flight in accordance with the weather conditions from an approved source; he failed to offload freight; he undertook maintenance (by fitting cargo pods) without being approved to do so; he permitted cargo (the generator) to encroach onto a passenger seat; and he failed to carry the required fuel. The next charge was that, contrary to s 137.1 of the Criminal Code 1995 (Cth) he gave information (the Aviation Accident or Incident Notification) to the ATSB knowing that the information was false and misleading in the following respects: falsely stating the flight to be aerial work and not charter; omitting all references to the carriage of dangerous goods in a passenger compartment or at all; failing to state that at least one passenger was doused with fuel, that circumstance constituting a minor injury. 22. The final charge alleged a breach of s 29 of the Act, constituted by his actions as pilot in command of HCQ in permitting HCQ to be operated in a way that resulted in it carrying dangerous goods, the generator containing fuel in the passenger cabin with a passenger and a chainsaw containing fuel in an unapproved compartment, otherwise than in accordance with the Regulations or any written permission of CASA. A Statement of Agreed Facts was tendered to the Magistrate on sentence and read into the record. That document became an exhibit in these proceedings. In sentencing Mr Sullivan the Magistrate, in addition to fines and a suspended gaol sentence, imposed an exclusion period on Mr Sullivan of 12 months pursuant to s 30A of the Act. 14 At [23] to [26] the Tribunal set out CASA's case, the essence of which was that "Mr Sullivan had failed in his duty (reg 269(1)(c)) and, or alternatively, was not a fit and proper person (reg 269(1)(d)), and, either or both of those grounds being made out, it was submitted, the circumstances of the crash and its aftermath were such that cancellation of Mr Sullivan's licence was called for" (at [23]). 15 At [27] the Tribunal set out Mr Sullivan's case which focused on the incident being minor in an otherwise unblemished record. 16 At [28] the Tribunal dealt with what it described as a "preliminary issue". The Tribunal said: The argument, as best I can understand it, is that it would be unreasonable in the Wednesbury sense for CASA (and thus, presumably, for the Tribunal) to cancel Mr Sullivan's licence or to impose a period of suspension greater than that imposed in the Magistrate Court in reliance on s 30A of the Act in respect of the matters that underlie those charges. That is so, it is said, because those were matters which the Magistrates Court took into account when imposing an exclusion period of one year in reliance on that section. The submission was made that, The considerations which informed the Court's decision to exclude the applicant would be in all relevant ways identical to the considerations to which the respondent had regard in determining pursuant to r. 269 CAR the applicant's fitness and propriety to hold the licence. Both decisions ultimately depend upon whether, having regard to the interests of air navigation safety, the applicant will be able, at the expiry of the exclusion period, to discharge his responsibilities as a commercial helicopter pilot... 17 The Tribunal concluded in these terms about the preliminary issue: 29. I do not accept the submission. It is the case that the power in s 30A of the Act to make an exclusion order is conditioned upon the Court considering "that it is in the interest of air navigation safety for the person to be excluded" however the submission overlooks the necessary distinction to be drawn between the Court's exercise of the judicial power of the Commonwealth and the Tribunal's exercise of the administrative power of the Commonwealth. The role of the Court in imposing an appropriate punishment, including consideration of an exclusion order, is quite different in both content and constitutional foundation, to the task of the Tribunal. The Tribunal's task, once one or more of the criteria in reg 269(1) is found to exist, is to determine the preferable decision in response to the conduct as found. I am unable to accept the proposition that that conduct is to be limited or defined in the way in which Mr Sullivan submits. 18 When dealing with the "contested conduct" the Tribunal said that: 30. Whilst there are several discrete areas of dispute they all revolve around a single issue - what was the weight of HCQ on take-off. The answer to that question is dependent upon the answer to a number of subsidiary questions, in particular, (a) was HCQ refuelled after returning from Katherine with Mr Smale and Mr Mole, (b) was HCQ carrying full or empty jerry cans on take-off from Flying Fox, (c) was Mr Sullivan intending, on take-off, to fly to Roper Bar. 19 At [32] to [59], before dealing with these issues, the Tribunal made "some general observations" about the reliability of the witnesses. 20 At [33] to [45] the Tribunal explained why it had concluded that Mr Sullivan did not leave "a favourable impression of reliability". In the course of so doing the Tribunal said: 41. Mr Sullivan's evidence in these proceedings was inconsistent with his evidence given in the Magistrates Court. Additionally, it is illogical. If, as Mr Sullivan said, exhibit 3 was written at a time after all the equipment had been laid out on the hangar floor but before any attempt had been made to load it he laid out, it may be wondered why only one chainsaw was recorded. In that circumstance it might have been expected that the list would have referred, at least initially, to two chainsaws. Moreover there is further illogicality in the notion of leaving a 5 kilogram chainsaw behind because of weight considerations. If exhibit 3 was what Mr Sullivan claimed it to be his calculated take-off weight was 1060 kilograms, 19 kilograms below the maximum take-off weight. That displays a concern about weight not otherwise demonstrated by Mr Sullivan whose estimates of the weight of Mr Smale and Mr Mole were out by 12 kilograms. 42. Finally, it seems absurd that Mr Sullivan would make a conscious decision to leave out one of the chainsaws yet not tell either of the passengers that part of the equipment was not to be carried as had been agreed. It is, I consider, more likely that both chainsaws were loaded aboard HCQ. 43. The evidence leaves me not satisfied that Mr Sullivan made any meaningful calculation of the take-off weight. 44. There is a further reason for scepticism about exhibit 3. On 31 March 2010 Mr Sullivan completed an insurance claim. In answer to a question about the take-off weight he wrote "1020 kg". It seems highly improbable that he would have written that figure had he, the previous day, carefully calculated and recorded the take-off weight at 1060 kilograms. 21 At [46] and [47] the Tribunal dealt with Mr Smale's evidence, saying: 47. Mr Sullivan's submissions referred to a passage in the decision of Deputy President Jarvis in Re Johanson & Civil Aviation Safety Authority [[2012] AATA 239] and to the familiar passage from the judgment of Dixon J in Briginshaw v Briginshaw [(1938) 60 CLR 336] that in matters such as the present, 'reasonable satisfaction' should not be produced by inexact proofs, indefinite testimony, or indirect inferences. Conscious of that warning, I see no reason to doubt the general accuracy of Mr Smale's evidence of matters of observable fact and his recollection of the general thrust of conversations. I was impressed by his recollection of events and I propose to generally accept his evidence. I expressly reject the suggestion that his evidence was the product of prompting by Mr Saffery. 22 At [48] and [49] the Tribunal referred to Mr Mole, concluding it had a favourable view of his reliability as a witness. 23 At [50] to [54] the Tribunal explained why it concluded that no reliance could be placed on the evidence of Mr Schloss, a helicopter pilot who worked at Flying Fox. 24 At [55] the Tribunal explained why it did not accept the evidence of another employee of Mr Sullivan's, Ms Parsissons, in these terms: 55. Much of Ms Parsissons' evidence is uncontroversial and much of it is not in issue. She gives two pieces of evidence that Mr Sullivan relies on in particular. First, she gives evidence that, if accepted, would confirm that Brad was not at Flying Fox and thus could not have refuelled HCQ before the departure with Mr Sullivan in command. And her evidence, if accepted, confirms Mr Sullivan's evidence of a change in plan with the new plan to fly to Roper Bar and reassess the position at that point. I am unable to accept that evidence principally because it conflicts with the evidence of Mr Smale and Mr Mole that I do accept. In my judgment, on these aspects, Ms Parsissons' recollection is faulty. 25 At [56] to [59] the Tribunal rejected the challenge by Mr Sullivan to the credit of Mr Saffery based on the (faint) allegation (described by the Tribunal as a "hint") that Mr Saffery had somehow acted in a way that caused the evidence of Mr Smale and Mr Mole to be embellished to the detriment of Mr Sullivan's defence. 26 The Tribunal dealt with the three issues it had identified as "the contested conduct" at [60] to [62]. In respect of the refuelling the Tribunal concluded that HCQ was refuelled at Flying Fox but it was not possible to say whether it was completely refuelled (at [62]). In respect of the jerry cans the Tribunal concluded at [61] they were full although it was not possible to say how much they weighed other than that the weight would have been "not insignificant". In respect of the intended destination the Tribunal concluded at [60] that there was no last minute change of plan to fly to Roper Bar as Mr Sullivan claimed, the intention being to fly to Numbulwar. 27 The Tribunal then dealt with its conclusions about the flight at [63] to [67]. At [63] the Tribunal said: 63. It follows from the discussion above that HCQ was considerably in excess of the maximum take-off weight on departure from Flying Fox. It is common ground that maximum take-off weight was 1089 kilograms. Even on Mr Sullivan's evidence that weight was exceeded. On his case the take-off weight was 1094.1 kilograms…CASA says that that ought be considerably increased. It contends that the weight of fuel was likely to have been 136.8 kilograms rather than 30 kilograms [Mr Sullivan's estimate] and that the full jerry cans were 35 kilograms not 5 kilograms [[Mr Sullivan's estimate]. Given that I am unable to know whether it was fully fuelled I am not in a position to determine the take-off weight. And, as I have said, I do not regard the evidence of the weight of the two jerry cans as satisfactory. It is though likely that HCQ exceeded the maximum permissible weight by a considerable margin if, as I conclude, fuel was added to it and it was carrying two full jerry cans. 28 At [68] and [69] the Tribunal dealt with the question "Did Mr Sullivan fail in his duty". It noted that Mr Sullivan through his counsel "accepted that [he] had failed in his duty such that the discretion in reg 269(1) of the Regulations was enlivened" and said this concession was "undoubtedly correct" with the consequence that it was "clear that Mr Sullivan failed in his duty with respect to matters affecting the safe navigation or operation of HCQ". 29 At [70] to [77] the Tribunal explained why it could not accept Mr Sullivan's submission that the events of 30 March 2010 did not demonstrate that he was not a fit and proper person to hold a commercial pilot's licence. The Tribunal, having explained the concept of "a fit and proper person" in orthodox terms at [72] to which no objection is taken in this appeal, said: 74. Mr Sullivan's competence is not open to question but his judgement on 30 March 2010 and thereafter was seriously flawed. The danger of stowing an 80 kilogram generator on a passenger seat was obvious. That it contained fuel merely compounded the danger. Mr Sullivan either did not comprehend the danger or, if he did, he was indifferent to it. He must have known that HCQ was significantly overweight or, if he did not, he was indifferent to it. To attempt a take-off was a further, and dangerous, lapse of judgement. The danger inherent in the attempt was heightened by the prevailing weather conditions that ought to have made Mr Sullivan even more cautious about taking off. Mr Sullivan did not desist from his attempts at take-off when prudence required him to do so. And he was either unaware of the requirements of the operating manual of HCQ or chose to ignore them. Either is concerning. 75. Mr Sullivan then acted dishonestly by lodging a report with the ATSB which he knew to be false in material particulars. I infer that he did so to avoid an investigation and subsequent consideration of his conduct by CASA. I reject his evidence to the contrary. Additionally it cannot have been other than dishonest on his part to tell his insurer, on the day following the incident, that the take-off weight of HCQ was 1020 kilograms. 76. In the hearing he sought to downplay the seriousness of matters and, in my view, did so deliberately. That may be a common enough human reaction but it does display a concerning lack of insight. 77. These matters satisfy me that Mr Sullivan is not a fit and proper person to have the responsibilities and exercise and perform the functions and duties of the holder of a commercial pilot's licence. 30 The Tribunal concluded in these terms at [78]: 78. Having reached the view that Mr Sullivan is not a fit and proper person it seems to me that the only appropriate response, having regard to the primacy of aviation safety, is that Mr Sullivan's licence ought be cancelled. I do not consider that the matter is one that could be dealt with by the imposition of even a lengthy period of suspension. I accept that that decision will create hardship for Mr Sullivan however those matters cannot transcend the primary obligation to regard the safety of air navigation as the most important consideration nor my conclusion that he is not a fit and proper person.

BRIGINSHAW (QUESTIONS 1 aND 2) 31 It is contended for Mr Sullivan that the Tribunal made a series of adverse findings against him in respect of serious matters and, in so doing, failed to apply or identify that it had applied the requirements specified in Briginshaw v Briginshaw (1938) 60 CLR 336 at 361 to 362 that: Except upon criminal issues to be proved by the prosecution, it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved.The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding, are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters "reasonable satisfaction" should not be produced by inexact proofs, indefinite testimony, or indirect inferences. 32 I accept that the Tribunal made findings about serious matters adverse to Mr Sullivan. It did so in numerous respects which disclose that it did not accept Mr Sullivan was a witness of truth and which reflect adversely on his honesty in his dealings with CASA and others including: (i) the inference drawn that Mr Sullivan "consciously sought to avoid an investigation by CASA" by his acknowledged offence of "knowingly provid[ing] false or misleading information to the ATSB following the crash" (at [39]), (ii) the conclusion that Exhibit 3, a document calculating the weight of HCQ Mr Sullivan said he prepared before take-off, should be treated with "scepticism" at [44], the implication being that Mr Sullivan had not been honest about how or when that document came to be prepared, (iii) the conclusion that Mr Sullivan's evidence about a change of plan to fly to Roper Bar rather than Numbulwar should be rejected at [60], (iv) the conclusions about the jerry cans being full not empty as Mr Sullivan claimed at [61], and (v) the conclusion that HCQ was refuelled at Flying Fox contrary to Mr Sullivan's evidence at [62]. In the amended notice of appeal 24 such adverse findings are relied on, mostly overlapping. It is unnecessary to repeat all of these grounds because the point is beyond debate. Where any material matter was in real dispute the Tribunal preferred the evidence of others to Mr Sullivan (and Flying Fox's employees) largely because the Tribunal did not accept Mr Sullivan to be a truthful or reliable witness when his own interests were at stake. 33 The first question is what it means to say, as Mr Sullivan contended, that the Tribunal was bound to take into account the Briginshaw principle in applying the standard of proof in findings on material questions of fact adverse to him. It appears from the submissions for Mr Sullivan that what is meant is that the Tribunal was required to assess the preponderance of the probabilities by reference to the seriousness of the facts in issue and the presumption of innocence so that mere competing conjecture or inexact proofs should have been found to be inadequate. This, it is said, the Tribunal failed to do in respect of all adverse material findings against Mr Sullivan. 34 Expressed in this way, by reference to the preponderance of probabilities, the source of the principle from judicial rather than administrative decision-making is apparent. The Tribunal is not bound by the rules of evidence (s 33(1) of the Administrative Appeals Tribunal Act). Section 140(1) of the Evidence Act 1995 (Cth), expressing the civil standard of proof on the balance of probabilities, does not apply to the Tribunal. Nor does s 140(2) which is a statutory embodiment of the Briginshaw principle. That said, as the submissions for Mr Sullivan pointed out, administrative decision-makers do routinely apply the approach identified in Briginshaw to their fact finding. Common examples in which the principle is applied include disciplinary hearings against professionals. In Minister for Immigration v Pochi (1980) 4 ALD 139 at 157 it was explained that the content of the requirements of natural justice was shaped by "the nature of the decision which the statutory tribunal is authorized to make or review and the effect that that decision may have on the person affected by it" so that deportation was not to be based "on no more than suspicion and speculation", an example of the principle's application. In Re Kirby and Collector of Customs (1989) 20 ALD 369 at 377 the Tribunal applied Briginshaw in the context of a statutory provision which required an applicant to satisfy the Collector of Customs about certain matters, a different context from the present where there is no suggestion of any party being subject to a burden of proof. 35 How should the principle be understood, however, in the present context where neither party was subject to any burden of proof, the Tribunal was not bound by the rules of evidence, but was bound to make the "correct or preferable decision in the case before it according to the material before it" (Bushell v Repatriation Commission (1992) 175 CLR 408 at 425)? In McDonald v Director-General of Social Security (1984) 1 FCR 354 at 356 Woodward J made the important point that "the onus (or burden) of proof is a common law concept" and: [t]he use outside courts of law of the legal rules governing this part of the law of evidence should be approached with great caution. This is particularly true of an administrative tribunal which, by its statute "is not bound by the rules of evidence but may inform itself on any matter in such manner as it thinks appropriate" (AAT Act s 33(1)(c)). Such a tribunal will still have to determine practical problems such as the sequence of receiving evidence and what to do if it is unable to reach a clear conclusion on an issue, but it is more likely to find the answer to such questions in the statutes under which it is operating, or in considerations of natural justice or common sense, than in the technical rules relating to onus of proof developed by the courts. However these may be of assistance in some cases where the legislation is silent. Whether the principles adopted by such a tribunal, arising from these various considerations, are appropriately dealt with under the heading "onus of proof", becomes a matter of choosing labels. It would probably be more convenient to avoid using that expression in cases such as the present. 36 For the same reasons reference to notions of the "preponderance of probabilities" and the need for "exact proofs", "strong" and "cogent" evidence which peppered the submissions of Mr Sullivan are apt to divert attention from the Tribunal's functions as defined by statute. This point was made in the joint judgment of Brennan CJ, Toohey, McHugh and Gummow JJ in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 (Wu Shan Liang ) at 282 when they rejected an argument which drew "too closely upon analogies in the conduct and determination of civil litigation". They said: Where facts are in dispute in civil litigation conducted under common law procedures, the court has to decide where, on the balance of probabilities, the truth lies as between the evidence the parties to the litigation have thought it in their respective interests to adduce at the trial. Administrative decision-making is of a different nature. A whole range of possible approaches to decision-making in the particular circumstances of the case may be correct in the sense that their adoption by a delegate would not be an error of law. The term "balance of probabilities" played a major part in those submissions, presumably as a result of the Full Court's decision. As with the term "evidence" as used to describe the material before the delegates, it seems to be borrowed from the universe of discourse which has civil litigation as its subject. The present context of administrative decision-making is very different and the use of such terms provides little assistance. 37 The principle which Briginshaw embodies, that there is a rational relationship between the seriousness of the fact to be found and the strength of the material sufficient to prove that fact, is a tool available to the Tribunal to assist it in reaching the correct or preferable decision in the context of administrative decision-making. The usefulness of this tool will depend on the nature and the facts of the case. In some cases, use of this tool will be unnecessary. In others, conscious advertence to the principle may assist in ensuring that the process of reasoning used does not suffer from a "want of logic" or "faulty reasoning". These terms, "want of logic" and "faulty reasoning", were considered in Tisdall v Webber (2011) 193 FCR 260; [2011] FCAFC 76 at [125] to [127] referring, in particular, to Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; [2010] HCA 16 at [130] to [131] where it is disclosed that, as Buchanan J put it, "the decisive test is not whether there was an error in logic or reasoning but whether there was no foundation for the conclusion reached". 38 The problem with the submissions for Mr Sullivan is that they seek to elevate what is a mere tool for administrative decision-making into a principle which must not only be applied but also must be identified on the face of the Tribunal's reasons as having been applied. I do not accept either proposition. There are many paths of properly available reasoning which might be used by an administrative decision-maker (Wu Shan Liang at 282). Provided the material findings of fact and the ultimate decision are reasonably open and based on some logically probative material the process of reasoning cannot properly be impugned on the basis that the decision-maker did not apply, or say in some way that it applied, Briginshaw. Mr Sullivan disavowed any challenge to the findings in question on the ground that they were not open (properly, as no such grounds appear in the amended notice of appeal). But what this reveals is the difficulty with the principle sought to be established. It is Mr Sullivan's case that the Tribunal's decision may be impugned not because the conclusion was not reasonably open and not because material factual findings were not based on some logically probative material but as a result of the Tribunal not having reasoned by reference to Briginshaw. Given the statutory context in which the Tribunal operates there is no justification for confining the possible reasoning processes of the Tribunal in this way. To the extent that it is necessary to say so I consider this to be consistent with the conclusions in Civil Aviation Safety Authority v Boatman [2006] FCA 460 at [62]. 39 For these reasons questions 1 and 2 of the amended notice of appeal should both be answered "No". 40 The only other observation that should be made in this context is that it cannot in any event be inferred that the Tribunal failed to appreciate the seriousness of its findings against Mr Sullivan and that this informed the kinds of material the Tribunal considered sufficient to satisfy it that these findings should be made. It may be accepted that the Tribunal did not say as much in terms. But that alone does not lead to an inference that the Tribunal failed to appreciate what it was doing in making the numerous findings against Mr Sullivan. As the respondent submitted, the principles in Briginshaw may be applied implicitly (British American Tobacco Australia Services Limited v Laurie (2011) 242 CLR 283; [2011] HCA 2 at [117]). In the present case, the matters were self-evidently serious. The Tribunal explained at some length why it found Mr Sullivan to lack credit. These were all matters the Tribunal was entitled, indeed bound, to resolve. There is no suggestion the findings were not reasonably open with due regard to the principles in Briginshaw and there was logically probative material, albeit disputed material, to support them. Resolving the disputed questions of fact, however, was the essential function of the Tribunal. I am not prepared to infer that the Tribunal failed to apply the principles in Briginshaw but, more importantly, it did not err in discharging its function even if it did not apply Briginshaw.

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Source

Catchwords

Judgment (6 paragraphs)

Parties

Legislation Cited (5)

Cases Cited (17)