Layton v Civil Aviation Safety Authority [2002] FCA 1532

FEDERAL COURT OF AUSTRALIA

Layton v Civil Aviation Safety Authority [2002] FCA 1532 GORDON LEITH LAYTON v CIVIL AVIATION SAFETY AUTHORITY Q 131 OF 2002

DRUMMOND J 6 DECEMBER 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: 6 DECEMBER 2002

WHERE MADE: BRISBANE

THE COURT ORDERS THAT:

UPON the Civil Aviation Safety Authority ("the Authority") by its counsel undertaking, notwithstanding the order made by Kiefel J on 2 October 2002 that Mr Layton pay the Authority's costs of the proceedings on an indemnity basis, that the Authority will not seek to recover any costs under that order beyond those which would be recoverable on a party and party taxation:

1. The application for an extension of time to appeal be dismissed.

2. Mr Layton pay the Authority's costs of and incidental to his application for an extension of time to appeal.

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: 6 DECEMBER 2002

PLACE: BRISBANE

REASONS FOR JUDGMENT

1 On 29 November 2002, I published reasons for then adjourning the application by Mr Layton for an extension of time for appealing the orders of Kiefel J made on 2 October last. As I indicated in those reasons, I thought it necessary, before I could determine whether to grant or refuse the extension of time sought, to have submissions on the point raised by Mr Layton as to whether the provision of the legislative scheme administered by the Civil Aviation Safety Authority ("the Authority") under which the Authority cancelled Mr Layton's aviation licences, as I will call them, was invalid because it purported to confer Commonwealth judicial power on the Authority. Mr Layton's licences were cancelled by the Authority under reg 269 the Civil Aviation Regulations 1988 (Cth) ("the Regulations"), the making of which was authorised by s 98(3)(c) the Civil Aviation Act 1988 (Cth) ("the Act"). 2 I have had the benefit of lengthy submissions from Mr Broadbent, who again appears today as counsel for Mr Layton, and concise submissions on behalf of the Authority on the point. It is apparent from the material before me that Mr Broadbent has extensive complaints about the Authority's administration of the civil aviation legislative regime. It is also apparent that Mr Layton shares his concerns. Mr Layton's action is seen by both him and Mr Broadbent as a vehicle for ventilating their concerns about the Authority in this Court. However, the only matter that is a live issue in the proceedings brought by Mr Layton, in my opinion, is the one I have just referred to, viz, the question of the validity of s 98(3)(c) of the Act and the regulation made in reliance upon that provision, reg 269, under which the Authority acted to cancel Mr Layton's licences. 3 I do not think that the contention of Mr Layton as to the invalidity of reg 269 and s 98(3)(c) has any prospect of succeeding if the appeal were to proceed. The regulation gives the Authority power, in effect, to inquire into whether the holder of an aviation licence should retain that licence. For it to arrive at a conclusion adverse to the holder of the licence and then cancel the licence does not, in my opinion, involve the exercise by the Authority of Commonwealth judicial power. 4 In Re Dingjan; Ex parte Wagner (1995) 183 CLR 323, it was said by the High Court, at 360: