Civil Aviation Safety Authority v Allan [2001] FCA 1064

FEDERAL COURT OF AUSTRALIA

Civil Aviation Safety Authority v Allan [2001] FCA 1064

ADMINISTRATIVE LAW – Administrative Appeals Tribunal – power of Tribunal to set aside a decision and make a decision in substitution for the decision set aside, or remit a matter for reconsideration in accordance with directions or recommendations WORDS AND PHRASES – "decision"

Administrative Appeals Tribunal Act 1975 (Cth) ss 3(3), 43(1)(c) Civil Aviation Act 1988 s 28(1)

Minister for Immigration & Multicultural Affairs v Perth City Mission [2000] FCA 397 referred to Ricegrowers Co-operative Mills Ltd v Bannerman (1981) 38 ALR 535 referred to Attorney-General (Cth) v Queensland (1990) 25 FCR 125 referred to Semunigus v Minister for Immigration & Multicultural Affairs (2000) 96 FCR 533 referred to Glasson v Parkes Rural Distributions Pty Ltd (1984) 155 CLR 234 referred to CIVIL AVIATION SAFETY AUTHORITY v MARK ALLAN N 1201 OF 2000 MOORE J 9 AUGUST 2001 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 1201 OF 2000

BETWEEN: CIVIL AVIATION SAFETY AUTHORITY

APPLICANT

AND: MARK ALLAN

RESPONDENT

JUDGE: MOORE J

DATE OF ORDER: 9 AUGUST 2001

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. The application be dismissed. 2. No order as to costs.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 1201 OF 2000

BETWEEN: CIVIL AVIATION SAFETY AUTHORITY

APPLICANT

AND: MARK ALLAN

RESPONDENT

JUDGE: MOORE J

DATE: 9 AUGUST 2001

PLACE: SYDNEY

REASONS FOR JUDGMENT

Introduction 1 This is an appeal on a question of law by the Civil Aviation Safety Authority ("CASA") against a decision of the Administrative Appeals Tribunal ("the Tribunal") of 25 October 2000. The Tribunal's decision was: "The decision under review is set aside and the matter is remitted to the respondent [CASA] with a direction that an Air Operator's Certificate for relevant purposes be issued to the applicant for a period of six months." 2 The primary decision under review by the Tribunal was a decision of a delegate of CASA not to issue Mr Mark Allan ("the respondent") with an Air Operator's Certificate ("AOC") under s 28(1) of the Civil Aviation Act 1988 (Cth) ("CA Act"). 3 CASA contends in this appeal that the Tribunal erred in law in giving the direction to CASA. CASA relies on two grounds. First, the direction was not one the Tribunal had power to make under s 43(1)(c) of the Administrative Appeals Tribunal Act 1975 (Cth) ("AAT Act"). CASA submits that the Tribunal was empowered to make a decision in substitution for the decision set aside, or to remit the matter to CASA for reconsideration in accordance with directions or recommendations of the Tribunal, but not to direct CASA to issue the respondent with an AOC. Secondly, the direction given by the Tribunal would require CASA to contravene s 28(1) of the CA Act, which obliges CASA to be satisfied of certain matters before issuing an AOC. CASA does not put in issue the decision of the Tribunal in so far as it set aside the decision of the delegate of CASA.