FEDERAL COURT OF AUSTRALIA Civil Aviation Safety Authority v Administrative Appeals Tribunal [2001] FCA 1319 ADMINISTRATIVE APPEALS TRIBUNAL - Appeal - stay of CASA licence suspension - whether the Court, as a matter of discretion, should exercise its jurisdiction to quash the order under review where events have overtaken the proceedings so as to render the issue moot. Civil Aviation Act 1988 (Cth) ss 8, 9, 9A Civil Aviation Regulations 1988 (Cth) Administrative Decisions (Judicial Review) Act 1977 (Cth) s 5 Judiciary Act 1903 (Cth) ss 16, 39B Federal Court of Australia Act 1976 (Cth) s 21 Administrative Appeals Tribunal Act 1976 (Cth) s 41 Yolbir v Administrative Appeals Tribunal (1994) 48 FCR 246 Cited Foster v Minister for Customs and Justice (1999) 164 ALR 357 Cited Secretary, Department of Employment, Education, Training and Youth Affairs v Allen & Anor (1998) 26 AAR 420 Cited Lamb v Moss and Brown (1983) 76 FLR 296 Applied Gerrard v Mayne Nickless Ltd [1997] FCA 1439 Cited Mayne Nickless Ltd v Transport Workers Union of Australia [1998] FCA 984 Applied Beitseen v Johnson (1989) 29 IR 336 Cited Dudzinski v Rossington [2000] FCA 1659 Cited Ibarcena v Secretary, Department of Family and Community Services [2001] 33 AAR 76 Cited Australian Securities Commission v Aust-Home Investments Limited (1993) 44 FCR 194 Cited Australian Securities Commission v Berona Investments Pty Ltd (1995) 18 ACSR 772 Cited Golden City Car & Truck Centre Pty Ltd v Deputy Commissioner of Taxation (2000) 46 ATR 51 Cited CIVIL AVIATION SAFETY AUTHORITY v ADMINISTRATIVE APPEALS TRIBUNAL AND PAULI SAARIO A44 OF 2000 COOPER J BRISBANE 14 SEPTEMBER 2001 IN THE FEDERAL COURT OF AUSTRALIA QUEENSLAND DISTRICT REGISTRY A44 OF 2000 BETWEEN: CIVIL AVIATION SAFETY AUTHORITY APPLICANT AND: ADMINISTRATIVE APPEALS TRIBUNAL FIRST RESPONDENT PAULI SAARIO SECOND RESPONDENT JUDGE: COOPER J DATE OF ORDER: 14 SEPTEMBER 2001 WHERE MADE: BRISBANE THE COURT ORDERS THAT: 1. The application filed 30 June 2000 be dismissed. 2. The applicant pay the second respondent two-thirds of his costs of and incidental to the proceedings from 5 July 2000, including reserved costs, to be taxed if not agreed. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA QUEENSLAND DISTRICT REGISTRY A44 OF 2000 BETWEEN: CIVIL AVIATION SAFETY AUTHORITY APPLICANT AND: ADMINISTRATIVE APPEALS TRIBUNAL FIRST RESPONDENT PAULI SAARIO SECOND RESPONDENT JUDGE: COOPER J DATE: 14 SEPTEMBER 2001 PLACE: BRISBANE REASONS FOR JUDGMENT background 1 The Civil Aviation Safety Authority ("CASA") is a body corporate established under s 8 of the Civil Aviation Act 1988 (Cth) ("the Act"). CASA has the function of conducting the safety regulation of civil air operations in Australian territory and the operation of Australian aircraft outside Australian territory in accordance with the Act and the Civil Aviation Regulations 1988 (Cth) ("the Regulations") made under the Act: s 9(1). In exercising its powers and in performing its functions, CASA is required to regard the safety of air navigation as the most important consideration: s 9A. 2 CASA is empowered by Reg 5.09 of the Regulations to grant flight crew licences of the type specified in Reg 5.08 and as otherwise provided in the Regulations. CASA is also empowered to refuse to grant, to suspend, and, to cancel flight crew licences under Pt XIV of the Regulations. Specifically, CASA has power to suspend the operation of a flight crew licence, pending an investigation, in the circumstances specified in Reg 268(1). Where CASA suspends a licence, it is required to forthwith investigate the matter and the suspension ceases from completion of the investigation or twenty-eight days from and including the date upon which the suspension took effect, whichever is the earlier: Reg 268(2). 3 On 7 June 2000, CASA faxed to the second respondent notice of suspension of his pilot and commercial pilot licences, pending investigation of the facts and circumstances specified in the notice. The suspension took effect on and from 7 June 2000. 4 On 15 June 2000, the second respondent applied to the Administrative Appeals Tribunal ("the AAT") to review the decision to suspend his pilot licences. The AAT heard an application by the second respondent for a stay of the decision to suspend his pilot licences. The AAT granted a stay of the CASA suspension decision at the conclusion of the hearing on 22 June 2000 and gave ex tempore reasons. 5 On 30 June 2000, CASA filed an application in the Australian Capital Territory Registry of the Court with supporting affidavit, for an order for review under s 5 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) ("the ADJR Act") and alternatively, under s 39B of the Judiciary Act 1903 (Cth) ("the Judiciary Act"). The proceedings were brought against the AAT as first respondent and against the pilot, Pauli Saario, as second respondent. 6 The period of twenty-eight days from the suspension of the pilot licences expired on 4 July 2000. 7 The proceedings were transferred by Justice Finn to the Queensland Registry of the Court on 7 July 2000, that date being the first return date of the application. The AAT filed a notice of appearance on 20 July 2000 and the second respondent filed his notice of appearance on 4 August 2000. 8 The AAT, on the first directions hearing of the application in Queensland on 4 August 2000, submitting to any order of the Court other than an order for costs, was excused from further attendance. the relief sought in the proceedings 9 By its application, the applicant sought the following relief : "(i) An order quashing or setting aside the said decision. (ii) a declaration that, in exercising its powers under the Administrative Appeals Tribunal Act 1975, in respect of a reviewable decision, the First Respondent must regard the safety of air navigation as the most important consideration as required by section 9A of the Civil Aviation Act 1988. (iii) Costs. (iv) Such further or other orders as the Court thinks fit." 10 The grounds relied upon as supporting the relief sought were : 1. The making of the decision to stay the suspension was an improper exercise of the powers conferred by the Act and the Administrative Appeals Tribunal Act 1975 (Cth) ("the AAT Act"), in that : (a) the AAT failed to have regard to the provision of Reg 268 of the Regulations before exercising the discretion to stay the suspension; (b) the AAT failed to take into account a relevant consideration, namely : (i) CASA's obligation under s 9A of the Act; (ii) CASA had the requisite belief under Reg 268 to justify the suspension. (c) the AAT took into account an irrelevant consideration, namely whether the allegations made against the applicant would eventually be sustainable; (d) the AAT exercised the power under s 41(2) of the AAT Act for an improper purpose, namely by exercising the power for the purpose of awaiting the outcome of further investigations and the obtaining of further evidence by CASA. 2. The AAT erred in its construction of Reg 268 of the Regulations by determining that a stay should be granted so that CASA could further investigate the circumstances of the case involving the second respondent. the hearing of the application 11 On the hearing of the application, I put to the applicant that the twenty-eight day period provided under Reg 268 having expired, the matters in issue were moot and that no order of the Court would affect in any way the second respondent's rights in respect of his pilot's licences. CASA, by its counsel, responded : "MR HARVEY: Absolutely no. In that sense, absolutely, your Honour. Your Honour is quite correct that there is in that sense no consequence that befalls the second respondent. The consequence that the Civil Aviation Safety Authority seeks, of course, is a pronouncement upon the decision of the Tribunal, a pronouncement that that decision was erroneous in law and should either be set aside, in accordance with section 16 of the Administrative Decisions Judicial Review Act, or quashed; or alternatively, that a declaration of this court be given that it is a nullity. It is of no effect. Now, that doesn't have any practical consequence upon the second respondent. We accept that, your Honour, that there is no - nothing that flows from that. If he's been flying, for example, in the time between the date of the Tribunal's decision and the date of expiration by effluxion of time of the suspension period, it doesn't mean that he's committed an offence, or some such matter such as that. In that sense, your Honour, the prime target, if I can put it that way, of course, is the decision of the Tribunal and the need to have a definitive pronouncement, for the first time I might say. There's no case that deals with the operation, for example, of the fundamental regulation which we agitate: CAR 268, that's regulation 268 of the Civil Aviation Regulations." 12 Should the Court entertain the application of CASA on the basis it seeks, and, on the basis that there is a live issue between CASA and the respondents as to costs in these proceedings, notwithstanding that the twenty-eight day period under Reg 268 expired before the first return date of the proceedings on 7 July 2000? 13 CASA submits that this Court has jurisdiction to hear and determine the application made by it under s 39B(1)A(c) of the Judiciary Act to seek an order under s 16 of that Act against the AAT to set aside or quash its order, or, pursuant to s 21 of the Federal Court of Australia Act 1976 (Cth), to make a declaration of right binding the AAT. CASA submits that this follows from the decisions of a Full Court of this Court in Yolbir v Administrative Appeals Tribunal (1994) 48 FCR 246, a decision of Drummond J in Foster v Minister for Customs and Justice (1999) 164 ALR 357 (on appeal (2000) 200 CLR 442), and, a decision of Burchett J in Secretary, Department of Employment, Education, Training and Youth Affairs v Allen & Anor (1998) 26 AAR 420 at 421 - 422. 14 In my view, the issue is not one of jurisdiction to entertain the application, it is a question of whether as a matter of discretion the jurisdiction will be exercised to grant the relief sought in the circumstances which now exist. In Lamb v Moss and Brown (1983) 76 FLR 296 a Full Court of this Court (Bowen CJ, Sheppard and Fitzgerald JJ) were concerned, inter alia, with the granting of relief of the type now sought under s 16 of the Judiciary Act upon an application for an order for review under that Act. The Court said in a joint judgment, after ascertaining the relevant principles discernible from the authorities (at 312 - 313) : "The application of these principles to the Act leaves no doubt but that, once the jurisdiction of the court is properly enlivened by a sufficient application, there is an obligation on the court to entertain that application: cf R v Commonwealth Court of Conciliation and Arbitration; Ex parte Ozone Theatres (Aust) Ltd (1949) 78 CLR 389 at 398. However, as had been noted, the existence of that obligation is not inconsistent with a power in the court to refuse relief notwithstanding that the statutory preconditions to a grant of relief are satisfied. In our opinion, such a discretion does exist under the Act, but that conclusion is not solely dependent upon the language in which the court is given power in s 16. Each of subs (1), (2) and (3) of s 16 must be read subject to the implicit proviso that the specified relief may be granted only if a basis for relief under the Act is established. Subject to that, the narrower view of those subsections would limit the discretion to the selection of the appropriate form of order from the designated categories. However, the natural meaning of the language used is apt to confer upon the court a discretion both as to whether or not to grant relief, provided that a basis for relief is established, and, if relief is to be granted, as to the form of relief; cf Evans v Friemann (1981) 53 FLR 229 at 237, per Fox J; Cox v Lightly (unreported, Neaves J, 1 July 1983). The words 'in its discretion', are emphatic of the discretionary nature of the court's power. There are broader indications arising from a consideration of the Act as a whole which confirm us in the view that the court has such a power. We instance, firstly, the nature of the rights given by the Act and the class of persons to whom they are given. Of greater significance are the powers conferred on the court when considered in conjunction with the grounds upon which it may give relief. Notwithstanding the particularity with which those grounds are stated, no narrow or restricted view of the operation of the Act is warranted. Its broad purpose was to invest this Court with jurisdiction to supervise administrative action in the Commonwealth sphere in all its aspects. The Act came into force at a time when courts, both in Australia and elsewhere, were in the process of expanding common law and equitable remedies with a view to ensuring, more so than was the case in the past, that the administration acted according to law. Those remedies were (and are) the prerogative writs (or orders in the nature thereof), the declaration of right and the injunction. Each of them is a discretionary remedy. The relief for which s 16 of the Act provides includes an order quashing or setting aside a decision, an order declaring the rights of the parties and an order directing any of the parties to do, or to refrain from doing, any act or thing. Each of these remedies has its parallel in the common law or equitable remedies previously available in the Supreme Courts of the States and still available in the High Court; cf s 9 of the Act. It would be strange indeed if this Court, in administering an Act plainly intended to provide comprehensively for an improved system for judicial review of administrative action, were not to have the same wide discretion to grant or refuse relief as do courts dealing with applications for the traditional common law or equitable remedies." 15 In the present case, the effect of the stay of the AAT is spent. The setting aside or quashing of the order of the AAT would have no practical application or effect in the administration of the Act or the Regulations by CASA with respect to the second respondent arising out of the circumstances which gave rise to the suspension of his pilot's licences. In those circumstances the Court should not, as a matter of discretion, grant the relief sought even if the relief may at an earlier time have been maintainable and justified where the passage of time has rendered the application of no practical application: Yolbir at 248 D-E; Gerrard v Mayne Nickless Ltd [1997] FCA 1439 at p 7. 16 In Mayne Nickless Ltd v Transport Workers Union of Australia [1998] FCA 984, a Full Court of this Court (Black CJ, von Doussa and Carr JJ) said (at pp3 - 4) : "The courts have an obligation to conduct their proceedings, and to deal with an ever-increasing workload, with as much expedition as the overriding demands of justice permit. No encouragement should be given, therefore, to the use of scarce judicial time to decide appeals that are essentially moot. There are other litigants with cases pending before the Court for hearing or delivery of judgment and their claims involve the determination of substantial legal rights of practical importance. This is not the situation in this appeal (see and compare Beitseen)." Examples of the Court exercising a discretion not to act where events have overtaken the proceedings so as to render the issue moot may be found in Beitseen v Johnson (1989) 29 IR 336 (FC) at 337 - 338; Dudzinski v Rossington [2000] FCA 1659 at pars [9] and [10]; Ibarcena v Secretary, Department of Family and Community Services [2001] 33 AAR 76 at 80. 17 What CASA seeks in par 2 of the relief sought is in the nature of an advisory opinion or a direction to the AAT as to how it shall, by its members in all future matters, exercise the discretion under s 41(2) of the AAT Act in a particular way in respect of any reviewable decision under the Act. As between CASA and the AAT, the declaration sought involves no declaration of a legal right in actual controversy which the declaration would confirm or modify and which remains capable in a real and genuine sense to be enjoyed: Beitseen at 337 - 338. It is insufficient that CASA has a genuine interest in having the legal issues resolved for the benefit of its administration of the Act in future cases which may arise. Those issues will, in an appropriate case, be resolved in litigation where they are real and will have a practical effect in respect of a controversy. 18 The fact that there may be an issue as to costs does not mean that there is a requirement to determine the issue for the purpose of determining that cost issue. The decision in Yolbir is not authority for the proposition that where there remains an issue as to the costs of the proceedings, it is necessary for the Court to determine issues on the basis of what the position would have been if it had been necessary to litigate the issue to a final conclusion. The decision stands for no more than the proposition that it may not be inappropriate in a particular case for something to be said about the issue which brought the parties before the Court: 48 FCR 246 at 248 E-F. 19 In my view, it is inappropriate to proceed to a determination of the substantive legal issues on the question of costs merely to obtain an advisory opinion where the question of costs can be determined having regard to the conduct of the parties in bringing or maintaining the proceedings. The position of an action where the determination of the issues becomes moot is analogous to the situation where the parties resolve the matters in issue save as to costs. In that case the relevant matters which may affect the exercise of discretion are considered in Australian Securities Commission v Aust-Home Investments Limited (1993) 44 FCR 194; Australian Securities Commission v Berona Investments Pty Ltd (1995) 18 ACSR 772; Golden City Car & Truck Centre Pty Ltd v Deputy Commissioner of Taxation (2000) 46 ATR 51. I have adopted a similar approach to the question of costs in this case. 20 In the present case, the maintenance of the proceedings after the expiration of the twenty-eight day period from which the second respondent's pilot licences were suspended by CASA was unnecessary and unreasonable. The proceedings were maintained thereafter in order to obtain as against the AAT some form of relief which would direct the AAT to exercise its discretion in the future in a way contended for by CASA. The second respondent should not have been put to the costs and expenses occasioned to him by the continuation of the proceedings. However, the second respondent raised a number of grounds which were on analysis not relevant or not pressed. This has led to unnecessary additional costs. 21 The justice of the case requires that CASA pay two-thirds of the second respondent's costs for maintaining the proceeding unnecessarily and unreasonably against him from 5 July 2000. The AAT has not sought costs against CASA. 22 The application should be dismissed with an order that CASA pay the second respondent's costs of and incidental to the proceeding, including reserved costs, to be taxed if not agreed. I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Cooper. Associate: Dated: 14 September 2001 Counsel for the Applicant: Mr Ian Harvey Solicitor for the Applicant: Civil Aviation Safety Authority Counsel for the Second Respondent: Mr R Broadbent Date of Hearing: 27 April 2001 Date of Judgment: 14 September 2001