FEDERAL COURT OF AUSTRALIA Layton v Civil Aviation Safety Authority [2002] FCA 1500 GORDON LEITH LAYTON v CIVIL AVIATION SAFETY AUTHORITY Q 131 OF 2002 DRUMMOND J 29 NOVEMBER 2002 BRISBANE IN THE FEDERAL COURT OF AUSTRALIA QUEENSLAND DISTRICT REGISTRY Q 131 OF 2002 BETWEEN: GORDON LEITH LAYTON APPLICANT AND: CIVIL AVIATION SAFETY AUTHORITY RESPONDENT JUDGE: DRUMMOND J DATE OF ORDER: 29 NOVEMBER 2002 WHERE MADE: BRISBANE THE COURT ORDERS THAT: 1. That the matter be adjourned to Friday, 6 December 2002. 2. The costs of today be adjourned to Friday, 6 December 2002. 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 Q 131 OF 2002 BETWEEN: GORDON LEITH LAYTON APPLICANT AND: CIVIL AVIATION SAFETY AUTHORITY RESPONDENT JUDGE: DRUMMOND J DATE: 29 NOVEMBER 2002 PLACE: BRISBANE REASONS FOR JUDGMENT 1 I have two applications before me by Mr Layton, the applicant, in proceedings Q 131 of 2002. The first is a notice of motion seeking leave to appeal from what is described as the interlocutory judgment of Kiefel J given on 2 October 2002. The second is an application for an extension of time to file and serve a notice of appeal against that judgment. It appears clear enough - and this is confirmed by Mr Broadbent, who appears today as counsel for Mr Layton - that the two applications were brought to cover the possibility that the judgment of Kiefel J given on 2 October might be characterised as interlocutory rather than final. 2 It is, however, clear that the judgment is a final judgment. Her Honour made orders summarily dismissing Mr Layton's originating application and orders that Mr Layton and Mr Broadbent, who appeared in those proceedings as Mr Layton's counsel, both be ordered to pay the Authority's costs on an indemnity basis. 3 The only applications before me today are the notice of motion and the application for extension of time to which I have referred. They are brought only by Mr Layton. Although a costs order was made against Mr Broadbent personally, he has not brought any application before the Court challenging the order affecting him. 4 The notice of appeal that Mr Layton wants to file should have been filed by 23 October. Mr Layton's notice of motion and his application for extension of time to appeal are dated 24 October, although they bear a Court stamp as having been filed the following day, 25 October. It was common ground on the hearing before me that the application for extension of time to file the notice of appeal was filed one day late. It may be that it was presented to the Registry on the 24th but not actually stamped as received until the 25th. In any event, whether it be two days rather than only one day late does not seem to me to matter in this case. 5 There is no draft notice of appeal exhibited to the application for the extension of time identifying the grounds upon which Mr Layton would wish to appeal the judgment of Kiefel J if the extension of time were granted. But Mr Broadbent has filed an affidavit sworn on 24 October and bearing the Court stamp, "Filed 25 October," in support of the application for extension of time in which he says: The grounds for appealing all of the judgment are that the Honourable judge erred in her decision that: (1) There was a valid order of the Administrative Appeals Tribunal (2) There was no justiciable issue to decide (3) That the warning by the respondent to the applicant of an alleged lack of viable cause or grounds in the application were sufficient to award indemnity costs against the applicant (4) That the admitted personal interest by the applicant's Counsel [ie, Mr Broadbent] in the subject matter were grounds for awarding indemnity costs against Counsel. 6 Read with the judgment, pars 2 and 3 of this passage in Mr Broadbent's affidavit identify in sufficient fashion grounds for seeking to appeal the orders made by Kiefel J. No point was, in any event, taken about the absence of a draft notice of appeal. 7 The two matters for consideration in determining whether Mr Layton should have the extension of time he seeks to file and serve the notice of appeal that he wishes to issue by way of challenge to Kiefel J's judgment are whether there is an explanation for the delay, and, secondly, whether the appeal has sufficient prospects of success to justify the grant of the extension of time. 8 There is an explanation for the delay of one or, at most, two days. Mr Layton, in par 5 of his affidavit filed on 6 November, says this: After the cancellation of my Chief Pilot Approval in March 2001 I was unable to find work as a Pilot, and Pacific Air Freighters (Qld) Pty Ltd [ie, Mr Broadbent's company] had ceased operating, being unable to obtain a replacement Chief Pilot and because of questions raised about the alleged airworthiness [of a particular plane], and I was forced to seek work overseas using the privileges of my British and American pilot licences. As a consequence I have had several absences from Australia since then in pursuit of work, and these absences have dictated to a large extent the conduct of the subsequent appeals against the Regulators [ie, the Authority's] decisions. 9 In par 7 he says: The last mention of the matter was on 2nd October 2002 at which the Court dismissed the matter on the Motion of the Respondent. I was absent from Australia from 26th September to 13th October and was unable to be contacted during that time and did not discuss the Court judgment with Russell Broadbent until after I had returned and rested and recovered from the jet-lag. Having considered the Court findings, I decided on my own volition to appeal the decision and then instructed Russell Broadbent to assist and act for me. 10 Counsel for the Authority submits that there is an absence of explanation for delay after 13 October, when Mr Layton says he returned to Australia, in filing the notice of appeal. But some time after that would have to be allowed for him to become acquainted with the decision and to form a view on whether he wished to challenge it. Be that as it may, the period of delay in question is very short. That fact would tell heavily in the balance, if Mr Layton has reasonable prospects of overturning the judgment, if permitted to appeal out of time. It is to the judgment I now turn. 11 The chronology leading up to that is set out in par [1] of her Honour's judgment, which I incorporate in these reasons: 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. 12 In par [2], her Honour says: 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 [her Honour meant "licence"] 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. 13 The original application filed 2 August 2002 is in these terms: On the grounds appearing in the accompanying affidavit the applicant claims: 1. The respondents powers to suspend, or cancel the applicants pilot licence are ultra vires The Constitution of Australia. 2. The Administrative Appeals Tribunal's powers to hear the applicants appeal against the respondents decision is invalid since its powers flow from its ability to stand in the shoes of the decision maker (respondent) AND The applicant claims by way of interlocutory relief: 1. A declaration that s268 of the Civil Aviation Regulations 1988 are invalid as they offend against s1, s61, s72 of the Constitution. 2. A declaration that s98(3)(c), 989(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 s268 of the Civil Aviation Act are invalid as they offend against s71, s80 and s51(xxxi) of The Constitution. 4. An order that the proceedings no Q2001/1121 between the applicant and the respondent currently before the Administrative Appeals Tribunal be adjourned until this application is determined. 14 To return to par [2] of her Honour's judgment, she said: 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. 15 That discussion on 21 August produced an amended application, filed by Mr Layton on 11 September. This does not materially differ from the application filed on 2 August, save in so far as it replaces par 4 of the original application with a new par 4. It is in these terms: 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. 16 This particular paragraph seeks relief by way of a stay in respect of the decision of the AAT on 15 July 2002. Of course, no such relief could be granted because the proceedings in the AAT were terminated on 15 July, with the consent of Mr Layton. Her Honour dealt with par 4 of the amended application in this way, saying: [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. … 17 Her Honour then turned to the three declarations claimed in the section of the amended application under the heading "interlocutory relief", which she had earlier characterised as claims for final relief. 18 At this point, it is appropriate to note that by the time the matter came back before her Honour, on 2 October, the authority had filed a notice of motion seeking orders that the whole of the application and the amended application be struck out pursuant to O 11 r 16(a), (b) or (c) of the Federal Court Rules. Written submissions had been delivered to her Honour prior to the hearing before her on 21 August. Reference was made by counsel who appeared before me for the Authority to these written submissions. They appear to be the only written submissions provided by the Authority. They identify as the main argument the alleged failure by the applicant to identify the jurisdiction of the Court that he seeks to invoke and they further say that the applicant has not identified any justiciable matter arising between the parties. 19 It was on this last-mentioned point that her Honour dismissed Mr Layton's application. I set out her reasons for doing that. They appear in pars [5], [6] and [7] of her Honour's reasons: [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 257 and 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. 20 There is no reason to doubt that her Honour was entirely correct in the view she took as to par 4 of the amended application, not raising any sustainable foundation for the application. However, in so far as her Honour dismissed the application for the reasons given in pars [5] to [7] of her reasons, it seems to me that, at the very least, there is good ground for thinking that the order made by her Honour summarily terminating Mr Layton's action could not be justified by those reasons. 21 By paragraph first numbered 1 of the amended application, Mr Layton makes this claim for final relief: On the grounds appearing in the accompanying affidavit the applicant claims: (1) The respondents powers to suspend, or cancel the applicants pilot licence ultra vires The Constitution of Australia. 22 Her Honour did not deal with this particular claim, only with the three declarations in the section of the amended application purportedly dealing with interlocutory relief. However, that particular claim seems to me clearly enough to raise a claim for a declaration that the Authority's powers to cancel the applicant's pilot licence are ultra vires. 23 It seems to me clear enough that the applicant raises in par 1 of the amended application (as he had in par 1 of his original application filed 2 August) a claim by way of final relief for a declaration that the Authority had no power to do what it purported to do and cancel his pilot's licence, something that Mr Layton says occurred in March 2001. Counsel for the Authority did not contend, in response to my invitation for a submission on the point, that par 1 of the amended application to which I have referred could not be read in this way, ie, as a claim for a declaration to that effect. 24 If a declaration in those terms were to issue, it would appear to follow that the Authority's purported cancellation of Mr Layton's pilot's licence would be exposed as having no effect in law. It would seem to follow from the granting of a declaration establishing that, that Mr Layton would be in the position of a person who, at all times since March 2001 - that is the date of purported cancellation by the Authority - has held an effective pilot's licence. 25 Counsel for the Authority submitted that relief limited to a declaration of the kind claimed in par 1 of the amended application to the effect that the Authority had no lawful power to cancel Mr Layton's licence would be incapable, in the absence of claims for further relief by way of orders directed to the Authority to take action, not specified by counsel, of raising a matter appropriate for determination in this Court. I doubt that. 26 I have referred to pars [5] to [7] of her Honour's reasons where she took the view that the application should be dismissed because the three declarations of invalidity she alone referred to were, as she described them, bare declarations which could not affect Mr Layton's own position. Her Honour referred to authorities dealing with the question when a justiciable matter will arise so that this Court's jurisdiction will be enlivened in the context of coming to her conclusion that the Court does not have jurisdiction to determine what she described as a theoretical question. She did not refer to par 1 of the claim for final relief. It cannot be said that the licence cancellation here attacked had no impact on Mr Layton. In par 2 of his affidavit sworn on 11 September, which was before her Honour, he said, among other things, this: The cancelling of my Pilot Licence, even though having a Stay granted by the AAT, has made me unemployed and unemployable in Australia. By exercising the privileges of my British and American Pilot Licences I have been able in the interim to be partially employed overseas, but of necessity have been absent from Australia for two long periods since March 2002. 27 By s 19 the Federal Court of Australia Act 1976 (Cth), this Court has such original jurisdiction as is vested in it by laws made by the Commonwealth parliament. One such law is s 39B(1A)(c) the Judiciary Act 1903 (Cth), which confers jurisdiction in this Court "in any matter … arising under any laws made by the Parliament". 28 The High Court considered this in LNC Industries Ltd v BMW (Australia) Ltd (1983) 151 CLR 575. The issue there was whether the New South Wales Supreme Court, in giving a judgment which was the subject of an appeal to the Privy Council, was exercising federal jurisdiction. If it were exercising federal jurisdiction, the appeal to the Privy Council would not lie. The High Court concluded the Supreme Court was in fact exercising federal jurisdiction. The cause of action in that case was based on a contract and relief in respect of the contract was all that was sought. But the subject matter of the contract was the sale of import quotas of vehicles established under the Commonwealth Customs (Import Licensing) Regulations. No question arose in the litigation as to the validity of the quotas or of the Regulations under which they were created. The High Court, at 582, said this: In substance the plaintiff's primary claim is to the benefit of rights and privileges under the Regulations. In these circumstances the matter involved in the action arose under laws made by the Parliament. The Supreme Court was therefore exercising federal jurisdiction in dealing with it … 29 The Court explained how it came to this conclusion at 581: It is true to say that a matter does not arise under a law made by the Parliament merely because the interpretation of the law is involved: Felton v Mulligan (1971) 124 CLR 367. On the other hand, a matter may arise under a law of the Parliament although the interpretation or validity of the law is not involved: R v Commonwealth Court of Conciliation and Arbitration; Ex parte Barrett (1945) 70 CLR 141. The conclusion reached by Latham CJ in that case, and stated in a passage that has often been cited with approval, is "that a matter may properly be said to arise under a federal law if the right or duty in question in the matter owes its existence to federal law or depends upon federal law for its enforcement, whether or not the determination of the controversy involves the interpretation (or validity) of the law". Equally, there is a matter arising under a federal law if the source of a defence which asserts that the defendant is immune from the liability or obligation alleged against him is a law of the Commonwealth: Felton v Mulligan. When it is said that a matter will arise under a law of the Parliament only if the right or duty in question in the matter owes its existence to a law of the Parliament that does not mean that the question depends on the form of the relief sought and on whether that relief depends on federal law. A claim for damages for breach or for specific performance of a contract, or a claim for relief for breach of trust, is a claim for relief of a kind which is available under State law, but if the contract or trust is in respect of a right or property which is the creation of federal law, the claim arises under federal law. The subject matter of the contract or trust in such a case exists as a result of the federal law. 30 In Moorgate Tobacco Co Ltd v Phillip Morris Ltd (1980) 145 CLR 457 at 476, Stephen, Mason, Aickin and Wilson JJ said this: … the parties were in dispute as to when a matter "arises" within the meaning of s.76(ii) [of the Constitution] so as to attract the exercise of federal jurisdiction. The cases establish that federal jurisdiction is attracted if the right or duty based in a federal statute is directly asserted by the plaintiff or defendant, but not if the federal question arises only in some incidental fashion. So too federal jurisdiction is attracted if the court finds it necessary to decide whether or not a right or duty based in federal law exists, even if that matter has not been pleaded by the parties. 31 In this case it seems to me well arguable that by par 1 of both the original and the amended application the applicant claimed a declaration that the right he held that arose under Commonwealth law, viz, the pilot's licence issued under the Commonwealth's civil aviation legislation, was affected impermissibly by the cancellation action taken by the Authority. That seems to me to come within the formulation stated by the High Court in the LMC case of when a "matter" will arise which is sufficient to give this Court jurisdiction to deal with the controversy. 32 That this "matter" may not have been raised by a pleading so precise as to be immune from strike out on a demurrer type attack does not, in my opinion, affect the proposition that a "matter" is sufficiently raised by par 1 of Mr Layton's original and amending application to attract the jurisdiction of this Court to deal with the litigation commenced by the institution by Mr Layton of the proceedings. That follows, in my opinion, from what is said in Moorgate Tobacco. 33 However, I do not think I can properly stop at this point and grant Mr Layton the extension of time to appeal which he seeks. 34 If an appeal proceeds, the critical question for the Full Court is not whether her Honour's reasons were right, but whether the order her Honour made terminating Mr Layton's action should stand. 35 The point raised by Mr Layton as to whether regs 268 and 269 of the Civil Aviation Regulations, under which it appears his licence was cancelled, are ultra vires the legislative or executive power of the Commonwealth has not been the subject of any argument before me. If an appeal were to proceed, the Authority can be expected to raise, by a notice of contention, the point that her Honour's order is supportable because there is no substance in Mr Layton's challenge to the validity of the Regulations, ie, that his action is one which should be summarily terminated as her Honour ordered, though for different reasons. The Authority, in seeking to strike out Mr Layton's application in the proceedings before her Honour, in large part, appears to have confined its attack on the application to the point that the application did not raise a justiciable matter and that mere advisory opinions, in effect, were being sought by the Court as to the validity of legislation. Though it appears that the Authority did not deal with the matter in its written submissions to her Honour, something was said in the proceedings before Kiefel J on 2 October about the question sought to be raised by Mr Layton as to the validity of the regulations. In par [8] of her Honour's reasons, she said this: 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. 36 Counsel for the Authority declined my invitation to put any submissions to me designed to show that the contention that the regulations attacked by Mr Layton are in truth valid and that there is no substance in the contention that they are beyond power. Mr Layton has not sought to put any submissions on that issue before this Court, but has confined his submissions to dealing with the reasons given by Kiefel J for dismissing the application. Since the issue for determination is whether Mr Layton has reasonable prospects of overturning her Honour's order, I do not think that I can properly send this matter up to the Full Court, with all the expense to the parties that will involve, without forming a view on whether there is any substance in the contention by Mr Layton that the regulations under which his licence was cancelled are in truth beyond power. 37 I therefore propose to adjourn this matter to 9.30 am on Friday, 6 December. If Mr Layton wishes to put any argument to the Court that the regulations are ultra vires, as he contends, he must file with the Court and serve on the Authority by no later than 4 pm on Wednesday, 4 December a concise outline of the contentions of law he relies on to establish that point. If the Authority wishes to contend that the regulations are valid and that there is no substance in the attack made on them by Mr Layton, it must file and serve by no later than 4 pm on Thursday, 5 December a concise statement of its contentions. I will reserve the costs of today's hearing to 6 December. I certify that the preceding thirty-seven (37) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Drummond. Associate: Dated: 29 November 2002 Counsel for the Applicant: MRM Broadbent Counsel for the Respondent: C Wilson Solicitor for the Respondent: Civil Aviation Safety Authority Date of Hearing: 29 November 2002 Date of Judgment: 29 November 2002