° t > oa Pa 9S " « a cl Administrative law - judicial review - decision not to renew aerial work and charter licence ~- decision made under Part XIII Air Navigation Regulations - whether legislation in terms excludes application of rules of natural justice under this Part - history of dealings between parties prior to decision whereby applicant informed of respondent's dissatisfaction with conduct of applicant's operations - whether applicant given opportunity to deal with all critical matters on which decision turned - evidence of general failure by applicant to observe regulations - whether decision reached without regard or proper regard to the evidence -— whether respondent took into account irrelevant or failed to take into account relevant considerations Air Navigation Act 1920 Air Navigation Regulations Part XTII Administrative Decisions (Judicial Review) Act 1977 3.5 IN THE MATTER of an Application for an order that a decision be reviewed pursuant to the Administrative Decisions (Judicial Review) Act 1977 JAN BEERS AVIATION (a firm) v. PAUL JONES No. WA G8 of 1986 TOOHEY J. PERTH PEON Oo sr OF " i! " arn - Ly "ak 23 JULY 1986 "weve ee wes ae ee ee IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY GENERAL DIVISION No. WA G8 of 1986 IN THE MATTER of an Application for an order that a decision be reviewed pursuant to the Administrative Decisions (Judicial Review) Act 1977 BETWEEN: JAN BEERS AVIATION (a firm) Applicant and PAUL JONES Respondent MINUTE OF ORDER JUDGE MAKING ORDER: TOOHEY J. DATE _OF ORDER: 23 July 1986 WHERE MADE: Perth THE COURT ORDERS. THAT: 1. The application is dismissed. 2. The applicant pay the respondent's costs of the hearing. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. sesy ore IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY GENERAL DIVISION No. WA G8 of 1986 IN THE MATTER of an Application for an order that a decision be reviewed pursuant to the Administrative Decisions (Judicial Review) Act 1977 BETWEEN: JAN BEERS AVIATION (a firm) Applicant and PAUL JONES Respondent CORAM: TOOHEY J. 23 July 1986 REASONS FOR JUDGMENT This is an application under s.5 of the Administrative Decisions (Judicial Review) Act 1977 to review a decision made by the respondent (who is the Regional Director, Department of Aviation, W.A. Region) not to renew the applicant's aerial work and charter licence. In its original form, the application specified a decision made on 30 January 1986. During the hearing the applicant was permitted to amend the application to identify the decision as having been made "between 22 and 30 January 1986 and recorded in a letter dated 30 January 1986". The reason for this amendment will appear in due course. at ae fee el eee The applicant, Jan Beers Aviation, is a firm. The proprietor of the firm is Badasht Enterprises Pty. Ltd. Mr. Beers is the managing director of the company. Mr. Beers swore an affidavit in support of the application. Mr. Jones, the respondent, swore an affidavit in answer thereto. Neither deponent was required to attend for cross-examination; more accurately, Mr. Jones was given short notice to attend but no objection was taken to the use of his affidavit by reason of his non-attendance. Mr. Jones has retired and is living in Melbourne. The applicant called two officers of the Department of Aviation, mainly to produce documents relating to the history of its licence. The respondent also called an officer of the Department. Regulation 198A of the Air Navigation Regulations provides that, subject to the Air Navigation Act 1920 and to the regulations and the other laws of the Commonwealth, an aerial work licence authorizes aerial work operations anda charter licence authorizes charter operations. The licence under consideration in this application is a composite charter and aerial work licence which authorizes charter operations for the carriage of passengers or cargo in particular circumstances and aerial work operations such as aerial survey, aerial spotting, aerial advertising and ambulance functions. The respondent is an authorized delegate of the Secretary of the Department of Aviation, in which capacity he is empowered by reg.200(2) to refuse to renew the licence in Ve ie am at re question, to renew 1t upon conditions or to vary at any time the conditions upon which it has been issued or renewed. Subject to the power of cancellation or suspension vested in the Secretary or his delegate by reg.200A, a licence remains in force for such period not exceeding one year as is specified and may, from time to time, be renewed for a further period not exceeding one year. The applicant has been the holder of a charter and aerial work licence for some fifteen years. At material times the licence related to two Beechcraft Baron model 58 twin engine aircraft, numbered VH-EZD and VH-EZN, together with a Beechcraft model E55 twin engine aircraft, numbered VH-EZF. Because of the years for which it has held a_ licence, the applicant has hada long involvement with the Department of Aviation in Western Australia. At least in recent years, the Department has expressed to the applicant concern about the standard of the records it maintains, about alleged contraventions of air navigation regulations and air navigation orders and about the standard of airworthiness of its aircraft. Since 1984 the respondent has renewed the applicant's licence for short periods only and subject to conditions. The last renewal was from 1 August 1985 to 31 January 1986 and it is the respondent's refusal to renew thereafter that is the subject of this application. The applicant relies upon a number of the grounds specified in s.5 of the Judicial Review Act. In particular, it alleges that a breach of the rules of natural justice occurred in connection with the making of the respondent's decision; that the td decision was not authorized by the Air Navigation Act or the Air Navigation Regulations; that the making of the decision was an improper exercise of power and that the decision was otherwise contrary to law. These matters have been elaborated in extensive further and better particulars of grounds of review and also in a statement of claim filed in the proceeding and verified by the affidavit of Mr. Beers. On 18 January 1986 the applicant sought renewal of the licence due to expire on 31 January. By letter dated 30 January the respondent refused to renew the licence. It is a detailed letter and much of its detail was attacked by the applicant. It is not a letter that can be paraphrased readily. Because of its importance to the application, I see no alternative but to attach it as an appendix to these reasons. Before dealing with the contents of the letter, it is desirable to say something as to when the "decision" was made by the respondent. In para.4 of his affidavit, the respondent deposed: "On 28 January 1986 I decided to refuse to renew charter and aerial work licence No. WA33 issued to Badasht Enterprises Pty. Ltd. trading as Jan Beers Aviation pursuant to Regulation 200(2)(a) of the Regulations. The reasons for my decision are set out in my letter to the Applicant dated 30 January 1986 ...". In the circumstances, that was a logical progression of events. There was a meeting on 28 January between Mr. Beers and Mr. Jones, with Mr. Griffin (an examiner in the Department of Aviation) being present for most of the time. At the meeting the matters causing concern to the Department were discussed. According to para.13 of entaet ore e his affidavit, Mr. Jones then decided to refuse to renew the licence and made Mr. Beers aware of his decision before the meeting ended. In the ordinary course, not a great deal turns on the interval that necessarily elapses between a decision-maker reaching a decision and communicating that decision to the person affected. Something was made of the sequence of events by the applicant, largely because in para.13 of his affidavit the respondent deposed: "On or about the 22nd January 1986 Jan Beers was advised by telephone that the Applicant's licence would not he renewed." The applicant submitted that, a decision having been made on 22 January, the opportunity afforded to Mr. Beers on 28 January to respond to matters of concern, was no opportunity at all for a decision had already been made. I am not persuaded that this is so. The officer who Made the phone call was Mr. Scaife, the Assistant Regional Director. He telephoned Mr. Beers on 23 January. I accept Mr. Scaife's evidence that while he made a decision in the sense of reaching a conclusion that the licence should not he renewed, the fimal decision had to be made by the Regional Director. As to the telephone call, Mr. Scaife's evidence was as follows: "",.. I cannot remember the exact words I used, but [I would have advised Mr. Beers that his air service 6. licence would not be renewed. And if I said that I certainly would have said that the final decision is up to the regional director or I may have said that it was unlikely that it would be renewed. But either way he was advised. And I also advised him, without doing it in detail, that the reasons for the non-renewal were the breaches of the conditions on the licence". As already mentioned, Mr. Beers did not give evidence. But he deposed: "I first learned of the decision to refuse to renew the said licence on 30 January 1986 by a letter bearing that date from the Respondent advising me of the reasons for the decision being made". The affidavit continues that Mr. Beers was not given any opportunity to put the applicant's side of the case "before any forum or tribunal". When affidavits sworn by opposing parties reveal a factual issue between them, the Court is placed in an unhappy position if the deponents give no oral evidence. It is only in a rare case that an issue of credibility can he satisfactorily determined by reference to the affidavits themselves. Here I have an advantage in that I heard from Mr. Griffin and Mr. Scaife. I am not persuaded that Mr. Beers first learned of the decision not to renew the licence when he received the letter of 30 January. 'The applicant bears the onus of proof in that regard. But in any event the totality of written and oral evidence satisfies me that, in his phone call on 23 January, Mr. Scaife gave an indication to the applicant that the licence would not be renewed; that the applicant sought and was given the opportunity to put its case to the respondent; that this was done at the me peree Jee mt ee ee a re ee ee meeting on 28 January; that at the end of the meeting the respondent made a decision not to renew the licence and communicated that decision to the applicant; and that the letter of 30 January communicated the decision in formal terms with detailed reasons as to why it had been made. The respondent arqued that he was under no obligation to accord natural justice to the applicant in reaching a decision not to renew the licence. Whether such an obligation exists is at the outset a question of statutory construction. See Twist v. Randwick Municipal Council (1976) 136 C.L.R. 106; Salemi v. MacKellar (No. 2) (1977) 137 C.L.R. 396; Req. v. MacKellar; Ex parte Ratu (1977) 137 C.L.R. 461; Heatley v. Tasmanian Racing and Gaming Commission (1977) 137 C.L.R. 487; Bread Manufacturers of New South Wales v. Evans (1981) 38 A.L.R. 93; FAI Insurances Ltd. v. Winneke (1982) 151 C.L.R. 342. In light of Kioa v. West (Minister for Immigration and Ethnic Affairs) (1985) 60 A.L.J.R. 113, it is apparent that in the making of an administrative decision which affects rights and interests (as did the decision in the present case) the statute must manifest a clear intention to exclude the rules of natural justice or procedural fairness before they will be excluded. See in particular Mason J. at 127, Brennan J. at 138 and Deane J. at 148. In the respondent's submission, the Air Navigation Requlations manifest a clear intention that rules of natural justice or procedural fairness do not apply to decisions affecting " < veerester ote the licences mentioned in req.198A. The araqument was put this way. Regulation 198A lies within Part XIII - Air Service Operations. The operations with which Part XIII is concerned are private operations, aerial work operations, charter operations and regular public transport operations as those terms are dealt with in req.191. Part XV - Refusal to Grant, and Suspension and Cancellation of, Licences and Certificates deals with licences under certain divisions of certain parts of the regulations, not including Part XIII. Part XV contains provisions controlling the refusal to grant and the suspension and cancellation of licences to which it applies. The Secretary may not refuse to grant such a licence except on specified grounds and, where he so refuses, he must furnish notification in writing, specifying the ground of refusal and the facts or circumstances constituting the ground (reg.255). He may only suspend or cancel such a licence on specified grounds. Before taking any such action, he must give notice in writing to the licence-holder of the facts and circumstances that in his opinion warrant consideration being given to suspension or cancellation and allow the license-holder to show cause why the licence should not be suspended or cancelled (reg.258). A person aggrieved by a refusal to grant or by the suspension or cancellation of such a licence may elect to have the matter submitted for review to a board of review or appeal to a specified court against the decision (reg.259). It was the respondent's submission that because the regulations prescribed review and appeal procedures for certain licences but made no similar provision for licences under Part XIII, it must be inferred that there was an intention to exclude 9. Part XIII licences from review or appeal andan intention to exclude the rules of natural justice. I have no difficulty in accepting the submission to a point; certainly the procedures under Part XV are not available in the case of Part XIII licences. But it does not follow that, in making a decision in regard to a licence under Part XIII, the Secretary or his delegate need pay no heed to the ordinary dictates of procedural fairness. In my view those dictates are not excluded. If anything, the absence of a formal system of review or appeal tends to point up the role that procedural fairness has to play. As Mason J. said in Kioa at 127-128: "The critical question in most cases is not whether the principles of natural justice apply. It is: what does the duty to act fairly require in the circumstances of the particular case?" I am of opinion that before the renewal of a licence under Part XIII may be refused, it is necessary to bring to the attention of the licence-holder "the critical issue or factor on which the administrative decision is likely to turn so that he may have an opportunity of dealing with it" (Mason J. in Kioa at 128-129). This does not mean that the licence-holder seeking a renewal must be given an opportunity to comment on every adverse scrap of information in the possession of the decision-maker. He cannot insist that the decision-maker debate with him the matters that appear to the decision-maker to be relevant. See the comments by Brennan J. in Kioa at 147, concluding with this statement: unis eae 10. "Nevertheless in the ordinarv case where no problem of confidentiality arises an opportunity should be given to deal with adverse information that is credible, relevant and significant to the decision to be made". The opportunity to comment need not be face to face with the decision-maker. Nor need it be given at one meeting where all relevant matters are brought to the attention of the licence-holder or take the form of one letter setting out ail matters the decision-maker proposes to take into account. The question is one of degree and it may be that ina particular case procedural fairness has been observed through a_ series of meetings, exchange of correspondence, dealings between the person affected and the decision-maker, or some combination of these matters. The respondent's letter of 30 January 1986 was of course written to tell the applicant of the refusal to renew its licence and the reasons therefor. If procedural fairness was to he observed (and in my view it was to be observed), the observance must be found in events leading up to the writing of the letter. Until 31 August 1984 the applicant's Licence had been renewed each year for a period of 12 months, apparently without incident. However in August 1984 it was renewed only until 30 November 1984, a period of three months. The applicant was told: "To obtain renewal of your licence beyond that date you will be expected to demonstrate the exercise of more positive control over pilot flight and duty times. In addition, an acceptable system of recording these times must be re-introduced". steamer wee 2 tee Ura + oe te 11. In December 1984 the licence was renewed, again only for a period of three months. The applicant was told: "This will allow you a further opportunity to establish positive control over flight time and duty times". The licence was due for renewal on 1 March 1985. On 7 March the Acting Regional Director wrote a long letter to the applicant in the form of a "show cause" letter, though that was not required by the regulations. The letter alleged that, as the applicant's chief pilot, Mr. Beers failed to ensure the safety of commercial operations being carried out. It referred to operational inspections carried out on 12 July 1982, 14 July 1982, 16 March 1983, 2 November 1983, 16 November 1983, 15 August 1984, 22 November 1984, 22 December 1984 and 19 February 1985. A variety of matters were mentioned as sources of concern arising from these inspections. There was an allegation that Mr. Beers flew as pilot in command between 1 January 1984 and 9 February 1984 and again between 1 January 1985 and 28 February 1985, while holding no valid flight crew licence. Other allegations related to the state of maintenance of three aircraft - VH-FDN, VH-EZD and VH-EZF. 'There was a general complaint of failure to deliver to the Department safety related documents. The letter concluded by offering the applicant the opportunity "to show cause why your licence should not be suspended or cancelled or why renewal should not. be refused". Because the licence was then due for renewal, it was renewed to 29 March 1985 to allow the applicant to deal with the matters raised in the letter. apes see nae wom nen 2 eA rt 12. On 28 March 1985 the respondent replied to the show cause letter with a letter that began "However we would like to explain our side and reasons generally to you". In fact the applicant wrote two letters on 28 March, one in general terms and the other offering a detailed response to the allegations made against it. It is not the province of the Court to determine the justification for the allegations made or the strength of the responses. These matters are mentioned as part of the history of dealings between the applicant and the Department of Aviation. They indicate that the Department's concern with the applicant's operations goes back at least until 1984. It is clear that the Department was not satisfied with the applicant's responses for it renewed the licence only until 30 April 1985 and then subject to conditions. The conditions were: "(A) That Jan Beers Aviation shall receive and act upon all letters dealing with maintenance matters. it is also agreed that letters dealing with maintenance matters shall not he sent from this department to the company using registered mail. (B) That all aircraft defects shall be correctly entered on the maintenance release, and, if appropriate, shall be certified by a licensed aircraft maintenance engineer as having been cleared. (C) That company operations shall be subject to such inspection and supervision by departmental officers as considered necessary for the safety of air navigation." The applicant's licence was renewed from 1 May 1985 to 31 July 1985. Again conditions were attached, in terms similar to tA res 13. those aust mentioned. In renewing the licence the respondent wrote on 30 April 1985 a letter which contained this passage: "Having considered all the evidence available to me I am of the opinion that suspension or cancellation of the air service licence is not warranted. However, I am convinced that repeated breaches of the regulations have occurred over a substantial period in particular with respect to the non entry of aircraft defects on the maintenance release, the continued operation of aircraft with known major defects, and flight and duty time limitations. It is apparent that as chief pilot you have failed ona number of occasions to exercise the degree of supervision and operational control required by Air Navigation Order Part B82. Consequently, I feel bound to advise you that Jan Beers Aviation will be subjected to an increased level of surveillance from both flying operations and airworthiness staff. Any deficiencies found during this surveillance will be assessed in the context of the above stated opinion regarding your operations." The licence was further renewed from 1 August 1985 to 31 January 1986. By letter dated 31 July 1985 the Department continued to express its concern at the applicant's operations, concluding its letter in this way: "As previously advised you will be subject to an increased level of surveillance from both flying operations and airworthiness staff. Your continued operations and renewal of your air service licence beyond 31 January 1986 will be dependant on strict compliance with the general and specific conditions of your licence." Paragraph 12 of the respondent's affidavit contains this sentence: "Prior to the expiry of the licence on 31 January 1986 it was apparent that the Applicant had not complied with the conditions of the previous renewal and I received a recommendation from Departmental officers that the licence not be renewed". "~ tafe eat 14. In the respondent's submission, a great deal of consideration has been given to the applicant since the end of 1984. Renewals of Licence were for less than a year and in some cases for very short periods, but they were effected. At the time of the renewal from 1 August 1985 to 31 January 1986 it was made clear that any further renewal would depend on strict compliance with the conditions of the licence. It is, I think, unnecessary to introduce the concept of legitimate expectation into this area of procedural fairness for the applicant had rights and interests that stood to be affected adversely by non-renewal. Nevertheless the Department's treatment of the applicant since 1984 would have engendered an expectation that, notwithstanding the terms of the letter of 31 July 1985, the applicant would be told of any intention not to renew its licence and be given the opportunity to meet any particular matters that played a part in the formation of that intention. Although the applicant contends in the affidavit sworn by Mr. Beers that it first learned of the decision not to renew when it received the letter of 30 January 1986, I have already noted the conflicting affidavit from the respondent, the oral evidence of Mr. Scaife and the consequent failure of the applicant to make good that proposition. The respondent deposed, in his affidavit, to the fact that at the meeting on 28 January 1986, "J... all matters of concern were put to Mr. Beers for his comment. I took into account all the matters raised by Mr. Beers at the meeting. I also took into 15. account the Applicant's failure to comply with the Regulations and the conditions imposed on the licence. Having regard to the safety, regularity and efficiency of air navigation, I decided to refuse to renew the Applicant's licence. Mr. Beers was aware of my decision prior to the conclusion of the meeting". In para.14 of his affidavit the respondent dealt expressly with the allegation of a breach of natural justice and repeated that at the meeting all matters relating to the refusal to renew the licence were put to Mr. Beers and that he was given every opportunity to deal with these matters and to say why the licence should be renewed. I am quite unable to find that the applicant was denied natural justice and in particular that he was denied procedural fairness in the sense that he was not given an opportunity to deal with the critical matters on which the respondent's decision was likely to turn. It is true that there is a lack of detailed evidence as to what took place at the meeting on 28 January. There is however Mr. Griffin's evidence (which I accept) that he was called into the meeting because of his technical knowledge and that ",.. we went through again some of these operational deficiencies that I had noted. And these operational deficiencies were put to Mr. Beers during the discussion. The Regional Director also discussed Mr. Beers' financial situation and I do not know whether he recommended, but he certainly discussed, the advisability of Mr. Beers seeking some assistance from some independent authority, such as a small-business adviser or one of - an instrumentality like that, to see if his financial problems could be resolved". Mr. Griffin added that there was also discussion about safety standards, arising out of certain deficiencies that he 'i L | ew tre re 16. (Mr. Griffin) had reported, particularly in regard to one of the aircraft - VH-EZF. He also said, in relation to the respondent: ",.. I think he emphasised that point, that Mr. Beers had been given an opportunity over a long period of time to prove that he was able to meet operational standards, safety standards, and before Mr. Beers departed the Regional Director said that he thought he had no option but to refuse the renewal of the licence". Mr. Griffin said that the meeting had been on foot for some ten or fifteen minutes before he was invited to join and that thereafter it lasted over an hour or so. It is the applicant which alleges a breach of natural justice and which must make good that case. It has failed to do so. Such evidence as there is supports the conclusion that the applicant was told of the matters causing departmental concern and was given the opportunity to deal with them. It is significant that the applicant did not specify any particular matter which the respondent failed to put to Mr. Beers. So far as procedural fairness is concerned, there was no greater obligation on the Department than to do what it did. There is a complaint in Mr. Beers' affidavit that he was not given an opportunity to put his case "before any forum or tribunal", But, for reasons already given, there was no forum or tribunal before which he could put his case since the procedures under Part XV of the regulations were not available to the applicant. The respondent constituted the only "forum" before whom the applicant could put its case. Pere tt) ee ed 17. As part of its claim based upon a breach of the rules of natural justice, the applicant contends that the respondent was biased "in that he made the deczson not to renew the licence without regard or proper regard to the evidence". There was no evidence of personal bias on the part of the respondent. As I am not persuaded that the respondent reached a final decision until the end of the meeting on 28 January 1986, a contention that a decision was reached without regard or proper regard to the evidence would, if nothing more appeared, amount to an invitation to the Court to treat the application as an appeal by way of rehearing in the sense in which that expression is usually understood. That is not the nature of a review under the Judicial Review Act. The role of the Court is to review the legality, not the merits, of administrative decisions. In that regard I refer to my comments in Johnson v. Commissioner of Taxation (unreported decision, delivered 24 April 1986). The point is made clear by the grounds of appeal in s.5 of the Judicial Review Act. One of those grounds (para.5(1)(h)) is that there was no evidence or other material to justify the making of the decision. The applicant does not contend that there was no evidence or other material to justify the decision not to renew its licence and, in the circumstances of the present case, the proposition that the decision was made without regard or proper regard to the evidence is not one that can be sustained. On the other hand, the taking of an irrelevant consideration into account or the failure to take a relevant consideration into account in the exercise of a power may constitute an improper exercise of that power within para.(e) of ree ' pn rts ae teens ' "e # | ' eeeproorr ae # 18. sub-s.5(1). The applicant contends that the respondent took into account irrelevant considerations and left out of account relevant considerations. To appreciate the way in which this argument was put, it is necessary to say something more about the Air Navigation Requlations. Regulation 200(3), which empowers the Secretary to refuse to renew a licence under Part XIII Division 1 (including aerial work and charter licences), provides that in exercising his powers the Secretary shall "have regard to matters concerned with the safety, regularity and efficiency of air navigation and to no other matters". This limitation does not apply to a _ licence issued in respect of operations involving certain types of air navigation particularized in reg.6. Relevantly, the limitation does not apply to licences relating to air navigation between states and territories. Regulation 199, which is concerned with the issue of a licence as opposed to its renewal, has a similar provision. If the limitation has any application in the present case, it must be to the licence considered as an intra State Licence. The applicant contends that the respondent took into account matters which were not concerned with the safety, regularity or efficiency of air navigation, hence that he took into account irrelevant considerations. Speaking of reg.199, Barwick C.J. said in Airlines of N.S.W. Pty. Ltd. v. New South Wales (No. 2) (1964-1965) 113 C.L.R. 54 at 90: a aed 19. y ».. in my opinion, the regulation is referring in the expression 'safety, reqularity and efficiency' to air navigation, not to the efficiency and regularity with which an airline operator conducts the commercial aspects of his business qenerally ... But the manner in which the applicant carries out these business operations will in some respects closely effect the efficiency and regularity of air navigation, a word which is not defined but clearly includes commercial air transport. The word 'regularity' has, it seems to me, in this context the sense of 'propriety' - conforming to standards, regular because conforming: such standards including punctuality of operation and the meeting of schedules, an aspect of its meaning which is clearly significant in relation to the safety of air navigation." The irrelevant considerations which, it is said, the respondent took into account are: 1. the applicant's financial standing or difficulties; 2. an allegation that the applicant had failed under reg.255(1)(a) to satisfy three out of four requirements prescribed by or specified under the regulations in relation to the grant of the licence by way of renewal on 30 July 1985; 3. an allegation that the applicant had failed under reg.255(1)(a) to satisfy three requirements prescribed by or specified under the regulations in relation to the grant of the licence by way of renewal on 30 March 1985. The respondent did have some regard to the applicant's financial position but, if the structure of the letter of 30 January 1986 is any guide, the matter was not at the forefront of his decision. As appears from the letter, having dealt in eee eee -~er a ete ee Ie oo 20. considerable detail with facts and circumstances from which it was said that the applicant had not complied with or had not established its capacity to comply with the regulations and air safety orders, the letter noted: "ZT am also concerned that your financial situation evidently does not permit you to materially improve the condition of the aircraft you operate". In the context in which this sentence appears, the applicant's financial situation was not an irrelevant consideration. The letter had dealt at some length with the applicant's alleged failure to improve its standard of safety including the condition of VH-EZD and VH-EZF. If, as the respondent apparently believed, the applicant's financial situation was the reason or part of the reason for the unsatisfactory condition of these aircraft, it seems to me beyond question that it was a matter he could properly take into account. According to Mr. Griffin, at the meeting on 28 January the respondent suggested that the applicant seek advice from a small-business adviser. Mr. Beers' response was that his financial problems had been resolved and he did not see the need for such advice. Mr. Griffin said that before Christmas 1985 Mr. Beers expressed doubts to him about the applicant's financial capacity to continue in business and that at a Christmas function he said he had resolved his financial problems. As to the latter statement Mr. Griffin commented: "This was not evident in the inspection we did in January, and the general condition of the aeroplane did not reflect that." 21. Clearly the respondent did not share Mr. Beers' optimism and that was a view he was entitled to take. The gravamen of the second and third matters, as I understand it, is that the respondent who was faced with an application for renewal in January 1986 should not have held against the applicant any failure to meet requirements at some earlier time, in particular a time preceding the date of the last renewal which was 1 August 1985. If the respondent was content to effect a renewal in August, it was said, he should not have held those matters against the applicant at some later time. But the application for renewal in January 1986 cannot be isolated in this way. The history of applications and renewals makes it clear that the Department expressed a continuous concern with the quality of the applicant's operation, at any rate from the end of 1984. When the licence was renewed on 1 August 1985, conditions were attached including conditions relating to aircraft defects. The letter of 31 July 1985 which accompanied the renewal expressed "serious concern ... about a general lack of operational control particularly in the areas of flight and duty time records, and maintenance standards." The slate was not wiped clean each time there was a renewal of licence; the Department was entitled to take into account the applicant's history though it would have been wrong to refuse renewal on some general ground about which there had been no complaint for some time. But particular matters, relevant to an ongoing concern onthe part of the Department, could properly be taken into account even though they preceded the last renewal. rine pee ee 22. The reference in the further and better particulars of grounds of review to reg.255 is misconceived. That regulation lies within Part XV which, as already noted, is concerned with licences other than aerial work and charter licences. The relevant considerations which, it is said, the respondent failed to take into account are many. I do not propose to deal with them seriatim; for the most part I shall deal with the sort of matters to which they relate. The matters relied upon by the applicant are largely evidentiary and bear upon the weight the respondent should have given to many of the considerations mentioned in his letter of 30 January 1986. Furthermore, the prescription of failure to take a relevant consideration into account in the exercise of a power as an illustration of an improper exercise of that power (Judicial Review Act para.5(2)(b)) does not mean that the applicant may simply list all matters which the respondent might conceivably have regarded as relevant and then attack his decision on the ground that one or more of those matters was not specifically taken into account. "In a case such as the present, where relevant considerations are not specified, it is largely for the decision-maker, in the light of matters placed before him by the parties, to determine which matters he regards as relevant and the comparative importance to be accorded to matters which he so regards. The ground of failure to take into account a_ relevant consideration will only he made good if it is shown that the decision-maker has failed to take into account a consideration it, A Saas bz LS ae tt ol) ey 4. - omen 23. which he was, in the circumstances, bound to take into account for there to be a valid exercise of the power to decide" (Deane J. in Sean Investments Pty. Ltd. v. MacKellar (1981) 38 A.L.R. 363 at 375). In regard to VH-EZF, the applicant says that the respondent did not take into account that the aircraft had not been used since 8 January 1986. But it is clear that the respondent did have this in mind because, in the course of the letter of 30 January 1986, he said: "When, on 16 January 1986, you were advised that the aircraft was overdue for reconditioning of both engines you agreed that the aircraft be grounded at Perth Airport. During discussions in my office on 28 January 1986 you admitted the aircraft had flown beyond the hours specified for engine reconditioning". When departmental officers made an inspection of the applicant's office at Beckenham and of its aircraft at Perth Airport (both inspections on 8 January 1986), it emerged that VH-EZF had been flown to Jandakot and was unavailable for inspection. Two inferences appear to have been drawn by the respondent, one that the aircraft was flown to Jandakot to avoid inspection and the other that the aircraft was flown at a time when it was overdue for reconditioning of both engines. These inferences, which it was fairly open to the respondent to draw, cast doubt upon the safety and efficiency of the applicant's air navigation, a consideration which was inno way answered by the fact that the aircraft was not flown after 8 January. 24. There was a general history, in relation to the three aircraft, of farlure to comply with aircraft survey reports, a general failure to maintain relevant records and, on the part of Mr. Beers, a failure to maintain a personal log. These requirements cannot be dismissed as bureaucratic; the maintenance of proper records is designed to alert pilots to relevant information concerning the aircraft they are about to fly and to provide the Department with the information it needs to satisfy itself about "the safety, requiarity and efficiency of air navigation". I am not persuaded that the respondent failed to take into account any consideration which, in the circumstances, he was bound to take into account. He may not have given a particular consideration the weight the applicant wished it to have. It may be that he did not give a particular consideration the weight it should have had, though I express no view on that matter. But these were matters for the respondent's decision. They are not matters for the decision of the Court unless it appears that there was some matter the respondent was bound to take into account before making a decision on the renewal of the applicant's licence and that in truth he failed to take it into account. There was, for instance, an argument as to whether a defect in the hinge bracket in the left-hand elevator of VH-EZD was reasonably discoverable by the applicant. It was noted by a departmental inspector at an inspection on 23 October 1985. In his affidavit the respondent deposed that the defect "should have been detected at previous daily inspections and entered on the ne na ape ee ee F te ee rear aaa -— BE eT pyc yes tr EO ET TY "as wee owe ene me ee 25. maintenance release". There was evidence to support this contention and it is not for the Court to make a finding on the matter. The respondent took the view that one of the applicant's aircraft had a defect which precluded it from flying, which should have been noticed and which was not noticed. If the respondent took that view, as he was entitled to, it was a relevant consideration in deciding whether the licence should be renewed. Air survey reports dated 24 July 1985 relating to VH-EZF and VH-EZN were still outstanding at the time of the hearing. So too was a report dated 10 January 1986 in relation to VH-EZD. The applicant's case tended to suggest that a failure to furnish air survey reports was justifiable if the work referred to in the reports had been attended to substantially. But it is vital to the operation of the Department that it be kept informed of the condition of aircraft and this in turn involves the safety, regularity and efficiency of air navigation. It is no answer for a licensee to say that he had carried out certain work but had not so informed the Department. As part of its complaint that the respondent failed to take relevant considerations into account, the applicant says that a conditional renewal could have been made, at least in respect of VH-EZN, "to enable the Applicant to earn some income from aerial work or charter operations for some reasonable period of time after midnight on 31 January 1986 when the said licence expired." There may well be some force in that contention. The applicant had been conducting its business for a number of years and a refusal to renew its licence on 30 January 1986 was likely to - 26. cause it financial loss. There was no evidence that the applicant had sought such a conditional renewal (other than ina tletter written by its solicitor on 10 February after the decision had been made) or that the respondent failed to take such a possibility into account. This matter, Like so many of the others just mentioned, points up the limitations of an application under the Judicial Review Act, compared with an application to a board of review or an appeal to a court under Part XV of the regulations. For reasons that were not explained, the regulations do not make either of these courses available to someone in the position of the applicant. I have given careful consideration to the particular matters which it is said the respondent failed to take into account and I am not persuaded that he did fail to take any of them into account, whatever might be said about the weight he attached to them. The third ground of attack on the respondent's decision is that he had "no lawful power, authority or discretion to refuse to renew the Applicant's said licence". This is not the precise language of any of the paragraphs of sub-s.5(1) of the Judicial Review Act. However it is apparent that reliance is placed upon para.(d) of sub-s.5(1) viz. that the decision was not authorized by the enactment in pursuance of which it was purported to be made. In support of this ground, it was said that in so far as the applicant's service was an interstate service under regs.199(2), 200(2) and (3) and 255(1), the respondent wrongfully considered the applicant to have not complied with the provisions ERTS Sr rey gate een wer oe maton 27. of the requilations or of any direction or order given or made thereunder relating to the safety of the operations. As I_ said earlier, reg.255 is not relevant, falling as it does within Part XV of the regulations. Nor was it relied upon by the respondent. Regulation 199(2) provides that, where the proposed service is an interstate service, the Secretary shall issue the appropriate licence unless the applicant has not complied with or has not established that he is capable of complying with the provisions of the regulations or of any direction or order given or made under the regulations relating to the safety of the operations. Sub-regulation (3) provides that, where the proposed service is other than an interstate service, the Secretary may issue the appropriate licence upon such conditions, in addition to compliance with the regulations, as he considers necessary or he may refuse to issue a licence. The last licence issued to the applicant referred to "charter operations within, to or from any of the States of Australia". The service previously conducted by the applicant and that proposed to be conducted was, as I understand it, beth interstate and intrastate. Certainly that was the scope of the licence previously issued. One difference, in terms of reg.199, is that in the case of a service other than an interstate service, the Secretary may impose conditions on the licence beyond those contemplated by the regulations. That distinction is not, I think, important in the present case because no conditional licence issued. Regulation 199 is not directly relevant to this application. It is concerned with the issue of a licence as a ew ne ees ae me ar & 28. opposed to the renewal of a licence provided by reg.200. What the applicant was seeking was in truth a renewal of licence; it is significant that all previous licences issued to the applicant bore the same number WA33. Nevertheless, reg.199 becomes relevant because reg.200(2) attributes to the Secretary, in dealing with a renewal of licence, the powers he has in dealing with an application for the issue of a licence. What is meant when the applicant says that the respondent wrongfully considered the applicant to have not complied with the provisions of the regulations or of any direction or order given or made thereunder relating to the safety of the operations? In so far as the respondent was required to exercise a judgment on those matters, it was for the purpose of deciding whether or not to renew the licence. These are matters particularly within the expertise of the Department of Aviation. That is not to say that the Secretary or his delegate may act in an arbitrary manner; but it is to recognize the particular sensitivity of air safety. The scope provided by s.5 of the Judicial Review Act for attacking a decision in relation to renewal of a licence remains but it does not involve the Court determining whether the respondent was justified in the view he took of the applicant's conduct. Tf he took irrelevant considerations into account, or left relevant considerations out of account, or made a decision which had no evidence or other material to justify it, or exercised a power so unreasonably that no reasonable person could have so exercised it, the Court may and will, in an appropriate case, review the decision and remit the matter to the decision-maker for further consideration. eee nme meen mere nn 29. But these are matters with which I have already dealt and I consider that the ground with which I am presently dealing adds little to what has gone before. The same may be said of the other matter relied upon in regard to this ground viz. that the respondent wrongfully considered the applicant to have failed to establish that he was capable of complying with the provisions of the regulations or of directions or orders given or made thereunder. That is merely the converse of the earlier proposition. Neither proposition was made good. In particular I am not persuaded that the respondent left out of account matters concerned with the safety, regularity and efficiency of air navigation or took into account matters that were not so concerned. The respondent''s letter of 30 January 1986 set out in great detail the considerations that led him to conclude that the applicant had not complied with and had not established that it was capable of complying with the provisions of the regulations or of any direction or order given or made under the regulations. These considerations included the applicant's earlier history, its failure to observe conditions attached to the renewal on 1 August 1985, the flying of VH-EZF beyond hours, the absence of records and the applicant's financial situation in so far as it bore on the condition of the aircraft. On 10 February 1986 the applicant's solicitor wrote to the respondent a letter which dealt at length with the matters mentioned in the letter of 30 January. But the decision not to 30. renew the licence had already been made. If the decision is not otherwise reviewable, it cannot be challenged by reason of the writing of the letter of 10 February 1986. And the letter did not suggest this. It forecast an application to the Federal Court. The broad scope for review and appeal provided by Part XV of the regulations relates to aircraft maintenance engineer licences, the licences of flight crews, ground instructor licences, air traffic controller licences and flight service licences. There is manifest in the regulations an intention that these broad avenues be not available in the case of aerial survey licences, charter licences and the other licences to which reg.199 applies. The scope for challenging a refusal to renew such a licence is therefore more circumscribed though the Judicial Review Act offers substantial provision for attacking the legality of the decision reached. The respondent was entitled to have regard to the Department's dealings with the applicant, the many complaints of failure to comply with the regulations and air navigation orders, the conditions attached to earlier renewals of licence and the warnings given to the applicant when renewals were effected. The respondent was also entitled to take into account the information provided by departmental officers and what was said by the applicant at the meeting on 28 January 1986. It may not have been inappropriate to renew the applicant's licence yet again for a short time or to renew it in respect of one aircraft only or to renew it upon stringent conditions. But these were matters peculiarly for the decision of the respondent and the applicant has failed to show that in reaching a decision the respondent fe ae a See That Nc el de a 31. contravened any of the paragraphs of s.5 of the Judicial Review Act. The application must be dismissed. I certify that this and the preceding thirty pages are a true copy of the reasons for judgment herein of His Honour Mr. Justice Toohey. Associate Dated: 23 July 1986 yt ee eae nee a Oa - epee ws APPENDIX | DEPARTMENT OF pr Aviation Western Australia Region CAGA Centre, 256 Adelaide Tce., Perth Box X2212 GPO Perth, WA 6001 in reply quote. 84/675 Telephone (09) 323 6611 85/141 Telex 93669 85/1078 Mr J Beers Manager dan Beers Aviation 18 Galaxy Street BECKENHAM WA 6107 Dear Mr Beers ¢ I refer to your application dated 18 January 1986 seeking renewal of the Jan Beers Aviation charter and aerial work licence which expires on 31 January 1986. In pursuance of powers vested in me by Sub-Regulation (2)(a) of Regulation 200 of the Air Navigation Regulations I hereby refuse to renew charter and aerial work licence No. WA33 issued to Badasht Enterprises Pty Ltd trading as Jan Beers Aviation. The grounds for refusal are: (a) Those specified in Sub-Regulation (2) of Regulation 200 of the Air Navigation Regulations, namely; that the refusal would be within my powers in dealing with an application for the issue of a charter and aerial work licence, and; (b) Those specified in Sub-Regulations (2) and (3) of Regulation 199 of the Air Navigation Regulations, namely; that the Secretary shall issue the appropriate licence for the operation of the service unless the applicant has not complied with, or has not established that he is capable of complying during the currency of the licence with, the provisions of these Regulations, or any direction or order given or made under those Regulations, relating to the safety of operations. The facts and circumstances which constitute the grounds specified in sub-paragraph (b) above are that: DA 2454 (a) On 7 March 1985 Jan Beers Aviation was offered the opportunity to show cause why the company charter and aerial work licence then due to expire on 29 March 1985 should not be suspended or cancelled or why renewal should not he refused. {b) Written and oral responses to the show cause were received ain this office on 29 March 1985. To allow time for proper consideration of the responses, the Jan Beers Aviation charter and aerial work licence was renewed for a period of one month, until 30 April 1985, subject to three specific conditions which were imposed upon the licence in accordance with authority vested an the delegate by Sub-Regulation (2) of Regulation 200 of the Air Navigation Regulations. The three conditions were specified in a telex to the company on 1 April 1985 and in a letter dated 2 April 1985. (c) On 29 April 1985 the Jan Beers Aviation charter and aerial work licence was renewed for a period of three months, until 31 July 1985, and on 30 Apral a letter was sent to the company imposing the same three specific conditions on the licence. The letter also assessed the company response to the 7 March show cause letter, stated that the company chief p2rlot had failed to exercise the degree of operational control requ2red and warned that the company would be subjected to an increased level of surveillance. (dad) On 22 July 1985 an operational inspection of the company was completed after two previously arranged inspections had been postponed to allow the company time to sort out financial difficulties. As a result of the inspection the Jan Beers Aviation charter and aerial work licence was renewed for a perzod of s2x months, until 31 January 1986, and four Specific conditions were placed upon the licence. 'Three of these conditions were essentially similar to ones placed upon previous company charter and aerial work licences and the fourth related to Air Navagation Order Part 48. At the same time a letter was sent to the company stating a serious concern at the lack of operational control being exercised particularly in regard to flight and duty time records and maintenance , Standards, and again warning that the company should expect to be subjected to an increased level of surveillance. (e) The four specific conditions imposed on the Jan Beers Aviation charter and aerial work licence valid from 1 August 1985 to 31 January 1986 are: wae 1 The Licensee shall receave and act upon all correspondence dealing with flying operational and maintenance matters. 2 All aarcraft defects are to be entered on the maintenance release at the earlyest opportunity and not later than completion of the flight. ' All defects must be either cleared by an appropriately endorsed person prior to flaght or carried through if permissible. This requirement 1s to be specified 1n the company operations manual and the chief pilot must ensure that all pilots are briefed on this requirement. 3 All flights must be conducted within the provisions of ANO Part 48 and the chief pilot is responsible for the maintenance of adequate flight and duty time records. The chief pilot must ensure that all -2- , Se eee at wt oa toe eon ee an ee A pilots are briefed on their responsibilities in this regard and the requirement to conduct operations in accordance with ANO 48 1s to be specified in the company operations manual. 4 The Lacensee shall permit departmental officers to conduct such inspections and supervision as 1s considered necessary for the safety of alr navigation. {£) The following facts relate to condition 1. (2) In relation to VH-EZF ~Form DA2596 issued 24 July 1985 remains with three items outstanding. "Form DA2596 issued 16 January 1986 remains with 11 items outstanding. (a2) (422) -The company was notified by letter dated 13 July 1985 and again by letter on 6 January 1986 that the arrcraft required reweighing. No reweigh data has been received. In relation to VH-EZD ~Form DA2596 assued 10 January 1986 remains with five items outstanding. . . In relation to VH-EZN -Form DA2596 xssved 24 July 1985 remains with four items outstanding. "Form DA2596 issued 10 January 1986 remains with three items outstanding. (g) The following facts relate to condition 2. {i) (ai) An operational anspection completed on VH-EZD at Bunbury on 23 October 1985 revealed that the left hand elevator hinge exhibited up and down play due to elongation of the hinge bracket holes. An inspection of the maintenance release revealed that this defect had not been entered. As a result, the inspecting offacer endorsed the aircraft maintenance release with the defect and rendered the aircraft unaxrworthy by an appropriate entry ain the maintenance release. During an airworthiness survey of VH-EZF an electrical fuel pump was found in the aircraft and it was determined the right hand pump had been replaced. No certification of the replacement had been made in the aircraft log book. The inspecting officer was not able to check if there had been an entry on the maintenance release as the company response was that the document was lost. (1ii)No company operations manual amendment has been received relating to use of the maintenance release, er (h) The following facts relate to condition 3. ~ (2) Despite repeated requests for flight and duty time records relating to yourself acting as pilot in command, no records for the past three months have been made available. (11) breaches of flight and duty time limitations noted during the inspection conducted on 8 January 1986 included: « pilot Bourgiois flying on eight consecutive days between 21 and 28 October 1985 on contravention of ANO 48.1.12. e pilot Fordham completing a tour of duty on an IFR flight in excess of 12 hours on 4 November 1985 21n contravention of ANO 48.1.5. (i) During an operational inspection at your company office and at Perth Airport on 8 January 1986 it was revealed that VH-EZF had been flown to Jandakot and was consequently unavailable for anspection. Evidence available to the anspecting officer at that time suggested that VH-EZF had flown beyond the hours specified in the maintenance release as being the maximum before completion of reconditioning of both engines as a result of them reaching their time between overhaul. When a request was made subsequently for the aircraft maintenance release the company response was that the document was lost. When, on 16 January 1986, you were advised that the aircraft was overdue for reconditioning of both engines you agreed that the aircraft be grounded at Perth Airport. During discussions in my office on 28 January 1986 you admitted the aircraft had flown beyond the hours specified for engine reconditioning. (j) Engine and propellor log books for VH-EZD which have been requested for inspection from the Maintenance Organisation are not available for the right hand engine S/N 571790 and propellor S/N 720599 and propellor S/N 763542. It would appear these are not readily available for A.N.O. 100.5.1 certification and record keeping purposese A Form DA 2596 has now been issued requiring producting of or razsing of these documents. Consequently it has not been possible to determine tame in service for these components. These facts collectively indicate to me that the conditions amposed on your licence since 1 April 1985 have not amproved the standard of safety achieved by your organasation and it 1s a most serious matter that each condition has been breached to a greater or lesser extent. I am also concerned that your financial situation evadently dees not permit you to materrally improve the condition of the aircraft you operate. I am left therefore with no option but to-take this action which as I explained to you on 28 January 1986 1s taken with the greatest regret. Your attention 1s drawn to your right of appeal agaznst this decision. One avenue would appear to be under the provisions of the Administrative Decisions (Judicial Review) Act 1977 (ADJR Act). The decrsion may be subject to review by the Federal Court of Australia on any one or more of the grounds listed under Section 5 of the ADJR Act. Section 11 of the ADJR Act provides that any application to the Federal Court for an order of review shall be made in the ? eee ee ee eee - mor ee epee sanner prescribed by Rules of Court, shall set out the grounds of the application, and shall be made not later than 28 days after your receipt of So re ed a my SRE re ay Sue. ih this notification. a Yours fa2thfully PAUL JONES Bort. @ Regional Director Delegate of the Secretary to the Department of Aviation ~ \