FEDERAL COURT OF AUSTRALIA Polar Aviation Pty Ltd v Civil Aviation Safety Authority [2011] FCA 1395 Citation: Polar Aviation Pty Ltd v Civil Aviation Safety Authority [2011] FCA 1395 Parties: POLAR AVIATION PTY LTD (ACN 007 986 834) and CLARK ANDREW BUTSON v CIVIL AVIATION SAFETY AUTHORITY, TERENCE FARQUHARSON, GARRY PRESNEILL, ROBERT COLLINS, JIM MARCOLIN, PETER JOHN and ALAN COOK File number(s): VID 1133 of 2011 Judge: MIDDLETON J Date of judgment: 5 December 2011 Legislation: Federal Court of Australia Act 1976 (Cth) Cases cited: Precision Products (NSW) Pty Ltd v Hawkesbury City Council (2008) 74 NSWLR 102 Sullivan v Moody (2001) 207 CLR 562 Date of hearing: 5 December 2011 Place: Melbourne Division: GENERAL DIVISION Category: No catchwords Number of paragraphs: 14 Counsel for the Applicants: Mr G Nash QC with Dr EJ Boros Solicitor for the Applicants: Maitland Lawyers Counsel for the Respondents: Mr I Harvey Solicitor for the Respondents: Australian Government Solicitor IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY GENERAL DIVISION VID 1133 of 2011 BETWEEN: POLAR AVIATION PTY LTD (ACN 007 986 834) First Applicant CLARK ANDREW BUTSON Second Applicant AND: CIVIL AVIATION SAFETY AUTHORITY First Respondent TERENCE FARQUHARSON Second Respondent GARRY PRESNEILL Third Respondent ROBERT COLLINS Fourth Respondent JIM MARCOLIN Fifth Respondent PETER JOHN Sixth Respondent ALAN COOK Seventh Respondent JUDGE: MIDDLETON J DATE OF ORDER: 5 DECEMBER 2011 WHERE MADE: MELBOURNE THE COURT ORDERS THAT: 1. The application for leave to appeal be granted. 2. Costs be costs in the appeal. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY GENERAL DIVISION VID 1133 of 2011 BETWEEN: POLAR AVIATION PTY LTD (ACN 007 986 834) First Applicant CLARK ANDREW BUTSON Second Applicant AND: CIVIL AVIATION SAFETY AUTHORITY First Respondent TERENCE FARQUHARSON Second Respondent GARRY PRESNEILL Third Respondent ROBERT COLLINS Fourth Respondent JIM MARCOLIN Fifth Respondent PETER JOHN Sixth Respondent ALAN COOK Seventh Respondent JUDGE: MIDDLETON J DATE: 5 DECEMBER 2011 PLACE: MELBOURNE REASONS FOR JUDGMENT 1 The applicants seek leave to appeal to the Full Court from part of the judgment and orders made by her Honour Kenny J on 30 September 2011. The application seeking leave to appeal is opposed. 2 The considerations ordinarily applied in determining whether to grant leave to appeal are: (a) whether, in all the circumstances, the decision in question is attended by sufficient doubt as to warrant it being reconsidered by the Full Court; and (b) whether substantial injustice would result if leave were refused supposing the decision to be wrong. Any such supposition must itself be a reasonable, rational one. 3 Furthermore, it may be that, in this case, there is an issue of importance that ought to be referred to, or reconsidered by the Full Court. This will be so when there are important legal principles to apply. 4 These considerations go to answering the central question in this application: whether it was appropriate for the learned primary judge to give summary judgment against the applicants under s 31A of the Federal Court of Australia Act 1976 (Cth) ('the Act'). 5 I have had the advantage of reading the parties' written submissions, and hearing Counsel for the respondents' careful analysis of the primary judge's reasons. That the learned primary judge carefully analysed the principles that she regarded as relevant to the exercise of judicial power under s 31A of the Act is undoubtedly true. 6 Specifically, her Honour observed that "no guiding principle has been found that identifies when an authority is subject to a common law duty of care with respect to the exercise of statutory powers": at [47]. Despite the submissions of the respondents, I consider this observation demonstrates the learned primary judge accepted that it was difficult to identify the guiding principle in any particular case of the type presently before the Court. 7 In [63] and [64] of the primary judge's reasons, her Honour considered a number of factors for and against a finding that the respondents owed the applicants a duty of care. 8 In this application, the issue is not whether or not her Honour has erred in her findings of fact, or that I can positively find that she has done so. All that needs to be determined (in the context of what was effectively a final decision) is whether there is a sufficient doubt that would warrant reconsideration of the matter by the Full Court. It is true that her Honour was alive to the issue as to whether the existence of a duty ought to be determined prior to trial and whether it depended on findings of fact. Her Honour clearly came to the view that this was not a case in which the facts as proven at trial would affect the conclusion that she reached: see [52] of the primary judge's reasons. 9 In my view, there is a sufficient doubt as to whether her Honour could undertake the exercise that she did. That is, dismissing the application under s 31A of the Act without considering the entire factual matrix at a trial. This is not a case where the existence of a duty of care can be decided without a full examination of all the facts, circumstances and the relationship between the parties. 10 Counsel for the respondent relied upon Precision Products (NSW) Pty Ltd v Hawkesbury City Council (2008) 74 NSWLR 102 (particularly the comments of Allsop P at [103] to [106]) and the High Court of Australia's decision in Sullivan v Moody (2001) 207 CLR 562 (specifically [50], [56], [60] and [62]). It was submitted by the respondent that a duty of care does not arise in this case because of inconsistent obligations. However, as the High Court stated in Sullivan v Moody, these general considerations are not necessarily the end of the inquiry. At [60], the Court said: But if a suggested duty of care would give rise to inconsistent obligations, that would ordinarily be a reason for denying that the duty exists. Similarly, when public authorities, or their officers, are charged with the responsibility of conducting investigations, or exercising powers, in the public interest, or in the interests of a specified class of persons, the law would not ordinarily subject them to a duty to have regard to the interests of another class of persons where that would impose upon them conflicting claims or obligations. (own emphasis) 11 Further, Counsel for the respondents submitted that the extent to which other remedies are available militates against the existence of a duty of care. This, it seems to me, is a matter of some debate, and ultimately depends on all the circumstances, available remedies, and their application to this case. 12 The question then arises as to whether leave should be granted only in relation to the first respondent. There may be practical reasons for not granting leave other than against the first respondent, on the basis that the applicants, in all probability, will receive no greater award of damages than claims based on breach of duty against individual officers. However, I do not consider I should approach the issue on this basis. If, as a matter of principle, there is sufficient uncertainty such that the matter proceeds to the Full Court, then this would apply against all the respondents. 13 I have also kept in mind that whilst leave to appeal is required, in substance the decision made by the primary judge is a final one. If the decision is, as I think, one attended with sufficient doubt, substantial injustice would result if leave were refused. It is important for me to restate that the context in which the application for leave was made was an order made under s 31A of the Act. The primary question on appeal will be whether it was appropriate for the primary judge to have exercised that power in the circumstances of this proceeding. My conclusion, allowing leave to appeal, does not require me to finally decide whether a duty of care in law exists. All I have decided is that the giving of summary judgment under s 31A of the Act was attended by sufficient doubt to warrant reconsideration by the Full Court. 14 The order will be, therefore, that: 1. The application for leave to appeal be granted. 2. Costs be costs in the appeal. I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Middleton. Associate: Dated: 7 December 2011