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: It is well settled that some powers are essentially judicial so that they can be conferred by the Commonwealth only on courts named or designated in Ch III of the Constitution, while others take their character from the tribunal in which they are reposed and the way in which they are to be exercised and, thus, may be conferred on courts or other tribunals as the Parliament chooses. 5 Under our system of law, based on the common law, the determination of criminal guilt necessarily involves the exercise of judicial power. But relatively few powers, on the authorities (??), are of their essential nature, judicial in character. 6 In R v Quinn; Ex parte Consolidated Food Corporation (1977) 138 CLR 1, the High Court held that the legislative grant of power to the Registrar of Trade Marks to remove a mark from the register on the ground of non-use did not involve the impermissible conferral of Commonwealth judicial power on that administrative official. This was so even though the legislative provision in question, s 23(1) the Trade Marks Act 1955 (Cth), conferred this power on the High Court or the Registrar at the election of the party seeking removal, and even though, where application was made to the Registrar rather than to the Court, regs 22 and 53 to 59 the Trade Marks Regulations 1958 (Cth) provided for its exercise by that official only after the registered proprietor of the mark was given full opportunity to contest the application in a hearing before the Registrar, ie, in circumstances in which the Registrar was required to follow a typical judicial procedure in arriving at a conclusion on disputed questions of fact. The leading judgment was given by Jacobs J. His Honour referred, at p 8, to the following passage in the judgment of Isaacs J in Shell Co of Australia Ltd v Federal Commissioner of Taxation (1930) 44 CLR 530 at 178 - 179: … some matters so clearly and distinctively appertain to one branch of government as to be incapable of exercise by another. … Other matters may be subject to no a priori exclusive delimitation, but may be capable of assignment by Parliament in its discretion to more than one branch of government. … The latter class is capable of being viewed in different aspects, that is, as incidental to legislation, or to administration, or to judicial action, according to circumstances. 7 Jacobs J, in R v Quinn,also said, at 9 - 10: The determination of the facts, the existence of which Parliament has prescribed as a condition of the exercise of the administrative function of registration, is not necessarily the exercise of judicial power. The nature of the determination is not altered by the circumstance that an opportunity is given to others, who are strangers to the application, to be heard on the determination of those facts. 8 As his Honour's judgment at pp 8 to 10 shows, when the question as to the proper characterisation of a power not in its essential character exclusive to one of the three arms of government arises, the intention of the legislature as to which arm of government is to exercise the power in the circumstances of a particular case is an important, though not conclusive, consideration. 9 Regulation 269 forms part of a legislative scheme administered by the Authority which, by s 9 of the Act, is given these functions, among others: (1) CASA has the function of conducting the safety regulation of the following, in accordance with this Act and the regulations: (a) civil air operations in Australian territory; (b) … by means that include the following: (c) … (d) developing effective enforcement strategies to secure compliance with aviation safety standards; (e) issuing certificates, licences, registrations and permits; … 10 In my opinion, in the context of the Civil Aviation Act and having regard to the Authority's statutory functions, the conferral by reg 269 pursuant to s 98(3)(c) of the Act of power on the Authority to inquire into and, if it comes to the appropriate conclusion, to determine to cancel a licence issued by it under the civil aviation legislative regime is administrative in character and not judicial; this is so notwithstanding that it has some of the characteristics of judicial power in so far as the Authority is required to conduct inquiry on notice and reach a decision in circumstances where that may have to be arrived at after the resolution of disputed questions of fact. The power is no more judicial than was the power of cancellation of registration of a trade mark that was considered in R v Quinn. 11 The only matter that remains of concern to me is whether the indemnity costs order made by Kiefel J on 2 October against Mr Layton should stand, even though I have come to the view that the substantial point raised by Mr Layton as to the validity of reg 269 is not sufficiently arguable as to justify the grant of the extension of time to appeal the order dismissing the application. I have been concerned whether, notwithstanding that view, Mr Layton should still have an extension of time to appeal the indemnity costs order. My concerns flow from the view I expressed in my reasons published last week as to the decision of her Honour being, in my view, open to challenge if one has regard only to the reasons her Honour gave for arriving at her conclusion. 12 My concern arises from the fact that, though Mr Layton, as the party whose proceedings were struck out, could expect to be ordered to pay the Authority's costs of the proceedings on the usual party and party basis, the foundation for the indemnity costs order was, in substance, that the Authority, prior to the hearing before Kiefel J, put Mr Layton on notice that because of the want of a justiciable matter, the proceedings by Mr Layton were vexatious and that if he did not agree to withdraw them, the Authority would, in the event of obtaining the dismissal of his proceedings, seek costs on an indemnity basis. 13 However, counsel for the Authority has indicated that he has instructions to offer an undertaking by the Authority that, notwithstanding that they have, among others, an order that Mr Layton pay the Authority's costs of and incidental to the proceedings on an indemnity basis, the Authority will only seek to enforce that costs order to the extent of recovering those costs that would be payable if the order provided for the usual party and party taxation only. In view of that undertaking, I consider it is not appropriate to grant the limited extension of time to appeal only the costs order that I was concerned about. I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Drummond. Associate: Dated: 10 December 2002 Counsel for the Applicant: MRM Broadbent Counsel for the Respondent: C Wilson Solicitor for the Respondent: Civil Aviation Safety Authority Date of Hearing: 6 December 2002 Date of Judgment: 6 December 2002