FEDERAL COURT OF AUSTRALIA Layton v Civil Aviation Safety Authority [2002] FCA 1231 ADMINISTRATIVE LAW –declarations sought by way of interlocutory relief –- whether basis in law or fact for interfering with order of Administrative Appeals Tribunal or treating it as not properly made –- whether applicant consented to withdraw proceedings before the Administrative Appeals Tribunal - whether justiciable matter disclosed absent relief personal to the applicant – whether declarations concern validity of legislation and not conduct - whether cancellation of pilots licence involves observation on applicant's integrity or conduct in public life. COSTS – whether respondents costs ought to be paid by applicant on an indemnity basis – whether sufficient basis for indemnity costs – whether costs also to be borne by applicants legal representative – whether applicants legal representative had personal interest in subject matter of legal proceedings – whether personal interest encroached on ability to approach proceedings in professional and objective manner. Statutes Administrative Appeals Tribunal Act (1975) s 45 Constitution of the Commonwealth of Australia 1901 (Cth) s 76 Judiciary Act (1903)(Cth) s 39B(1A)(b) Cases Abebe v The Commonwealth of Australia (1999) 197 CLR 510 Cited In Re Judiciary and Navigation Acts (1921) 29 CLR 257 Cited Pirrie v McFarlane (1925) 36 CLR 170 Cited GORDON LEITH LAYTON v CIVIL AVIATION SAFETY AUTHORITY Q 131 of 2002 KIEFEL J 2 OCTOBER 2002 BRISBANE IN THE FEDERAL COURT OF AUSTRALIA QUEENSLAND DISTRICT REGISTRY Q131 OF 2002 ON APPEAL FROM A DECISION OF THE ADMINISTRATIVE APPEALS TRIBUNAL BETWEEN: GORDON LEITH LAYTON APPLICANT AND: CIVIL AVIATION SAFETY AUTHORITY RESPONDENT JUDGE: KIEFEL J DATE OF ORDER: 2 OCTOBER 2002 WHERE MADE: BRISBANE THE COURT ORDERS THAT: 1. The application be dismissed. 2. Mr Layton and Mr Broadbent pay the respondent's costs on an indemnity basis. 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 Q131 OF 2002 ON APPEAL FROM A DECISION OF THE ADMINISTRATIVE APPEALS TRIBUNAL BETWEEN: GORDON LEITH LAYTON APPLICANT AND: CIVIL AVIATION SAFETY AUTHORITY RESPONDENT JUDGE: KIEFEL J DATE: 2 OCTOBER 2002 PLACE: BRISBANE REASONS FOR JUDGMENT Ex Tempore 1 On 12 November 2001, Mr Layton was advised by the respondent, the Civil Aviation Safety Authority, that his flight crew licences were cancelled and their surrender was required. Mr Layton sought a review by the Administrative Appeals Tribunal from that decision with the assistance of his barrister, Mr Broadbent. On 8 July 2002, Mr Layton brought an appeal to this Court from an interim and discretionary decision of the Tribunal refusing to refer questions of law to this Court under s 45 of the Administrative Appeals Tribunal Act (1975). The appeal was dismissed with costs. Mr Layton then pursued his review in the Tribunal until 15 July 2002, at which point the Tribunal records that the parties consented to a dismissal of his application. Despite Mr Broadbent's submissions to the effect that Mr Layton did not consent to that order, the transcript clearly shows that he unequivocally informed the Tribunal of his decision to withdraw the proceedings, and on that basis the proceedings were dismissed. It also seems to me to be fairly suggested by the conversation recorded in the transcript that he had not committed himself to continuing the hearing before the Tribunal and presenting his case. Since that time, however, it has become obvious to Mr Layton, and Mr Broadbent, that the Tribunal proceedings might be required to prop up a case in this Court. I shall return to that matter. For present purposes, I need only say that there is no basis in law or fact shown for interfering with the order made by the Tribunal or treating it as not properly made. There has been no application made to the Tribunal to have it set aside. 2 On 2 August, 2002 Mr Layton's application was filed in this Court. It was claimed that the respondent's powers to suspend or cancel his leave were ultra vires the Constitution, and the Tribunal's powers invalid for the same reason. Declarations were sought by way of interlocutory relief, although it was obvious that they were of a permanent nature. The matter came before me on 21 August 2002 at which time there was some discussion concerning the deficiencies in the relief as it was claimed. At that point the respondent had provided submissions to the Court and to Mr Broadbent that, absent any relief personal to Mr Layton, there was no justiciable issue disclosed. I shall deal with those submissions again, which have been repeated today. At that point, there was some discussion with Mr Broadbent about the problems with the application, and to an extent, possibilities for amendment were also gone into. 3 On 11 September 2002, Mr Broadbent filed an amended application on Mr Layton's behalf. It did not address the matters raised in the earlier hearing. The orders sought were as follows: "1. A declaration that s 268 and s 269 of the Civil Aviation Regulations 1988 are invalid as they offend against s 1, s 61, s 71 of the Constitution. 2. A declaration that s 98(3)(c), 98(3)(p) and 98(3)(q) of the Civil Aviation Act are invalid as they offend against Chapters 1, 11 and 111 of the Constitution and are contrary to the Doctrine of Separation of Powers. 3. A declaration that the powers exercised by the Respondent under s 268 and s 269 of the Civil Aviation Act are invalid as they offend against s 71, s 80 and s 51(xxxi) of the Constitution. 4. An order that the decision of the Administrative Appeals Tribunal made on the 15th July 2002 in the proceedings no Q2001/1121 between the applicant and the respondent then currently before the Administrative Appeals Tribunal be stayed until this application is determined." 4 The only order that might have a direct connection with Mr Layton, or actually address the question of his licences, is that set out in fourth order namely, that the decision of the Administrative Appeals Tribunal made on 15 July 2002 be stayed. So far as the proceedings in the Administrative Appeals Tribunal are concerned, as I have said there is no basis for this Court interfering with the consent order made in those proceedings. The order stands. I entertain considerable doubt, in any event, whether an order seeking a mere stay of those proceedings would be sufficient to raise a matter before this Court by which a right was to be adjudicated and determined. 5 The three declarations sought are bare declarations. They are not declaratory of Mr Layton's interest, and would, as became obvious in submissions, provide merely an opinion of the Court on the general question of the authority's powers. Mr Harvey, for the respondent, submits that the applicant has not identified any justiciable matter. 6 Whilst the Court has jurisdiction with respect to matters arising under the Constitution, or involving its interpretation, pursuant to s 39B(1A)(b) of the Judiciary Act (1903)(Cth), absent a present, right, duty or liability to be determined by the Court, there is no relevant matter within the meaning of s 76 of the Constitution: see In Re Judiciary and Navigation Acts (1921) 29 CLR 257and Abebe v The Commonwealth of Australia (1999) 197 CLR 510. If there is no legal remedy for a wrong, there is "no matter". The word "matter" in s 76 does not mean the constitutional question, which identifies the litigation with the section: see Pirrie v McFarlane (1925) 36 CLR 170. 7 It follows from these cases that the Court does not have jurisdiction to determine what is a theoretical question. In response to the observation by the Court that what was sought was a bare declaration, Mr Broadbent also submitted that the Court has power to make such a declaration to redress a wrong, namely that a person's conduct or reputation is impugned. In rare circumstances, and certainly only those where a declaration can actually speak to the conduct, will such a declaration be made. Here what is sought to be addressed is the cancellation of licences. This does not involve an observation upon the integrity of Mr Layton or the way in which a person has conducted themselves in public life. It may be a matter which is distressing to the person whose licences are cancelled. It may be, as Mr Broadbent says, that the licence can be viewed as property or at least something which is productive of income. These features do not equate to a situation in which it might be appropriate to make a declaration concerning the legality of a decision or conduct. In any event, having said that, it is obvious that what is sought is not addressed to conduct, on the part of the respondent, but to the validity of the legislation and, therefore, the declarations could not go. 8 There were further submissions made by counsel for the respondent, in the event that I were against the respondent on the principal submission that there was no justiciable matter. The applicant does not, however, seek prerogative relief and it does not appear to me to be necessary then to deal with the balance of the arguments as to whether there is any possible merit in the allegations that the Act and the regulations are, in the respects alleged, invalid. I would simply observe that there would seem to me to be considerable difficulty in an argument of the nature outlined. 9 I turn then to the question of costs. Costs will, of course, generally follow the event. The usual order would be that an unsuccessful applicant bear the respondent's costs. Here costs are also sought on an indemnity basis because warnings were given, at least prior to the last mention date, that there was no viable cause or grounds shown. Those warnings were not been heeded in circumstances where they ought to have been. That seems to me to provide a sufficient basis for indemnity costs. 10 There is an additional order sought against Mr Broadbent as well as Mr Layton for costs. The order for third party costs is sought on the basis that Mr Broadbent has, as it was put in submissions, personally insinuated himself in the case. In both the affidavits which he has filed in support of the matter, to meet some of the parts of the case put forward by the respondent, and in his submissions, Mr Broadbent has made it obvious that he has a personal interest in this matter. He is very dissatisfied with the procedures under the legislation and the powers given to the respondent authority. He has spent many years pursuing a principle and it would seem to me a reasonable enough inference that these proceedings are an expression of his annoyance and his determination to have a different process provided for. It has, in large part I suspect, encroached upon what should have been a professional and objective consideration of litigation on the part of a barrister As a result, the proceedings, which have been without proper foundation, have been pursued and costs incurred. In those circumstances, I think it is appropriate to make an order for costs against both Mr Layton and Mr Broadbent. 11 The orders will then be that the application be dismissed and that each of Mr Layton and Mr Broadbent pay the respondent's costs on an indemnity basis. I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Kiefel. Associate: Dated: 2 October 2002 Counsel for the Applicant: Mr R Broadbent Counsel for the Respondent: Mr I Harvey Solicitor for the Respondent: Civil Aviation Safety Authority Date of Hearing: 2 October 2002 Date of Judgment: 2 October 2002