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Federal Court of Australia - Full Court |
Last Updated: 6 October 2009
FEDERAL COURT OF AUSTRALIA
Civil Aviation Safety Authority v Central Aviation Pty Limited
ADMINISTRATIVE LAW –
Administrative Appeals Tribunal – failure to provide adequate reasons
– primary judge set aside reasons – exercise
of discretion –
whether reasons or decision should be set aside – power of Tribunal to
vary decision or orders –
power did not extend to vary reasons provided
for existing decision
CIVIL AVIATION –
source of power in Civil Aviation Regulations to vary conditions of
Certificate of Approval
Administrative
Appeals Tribunal Act 1975 (Cth) ss 33(1AA), 43(2), 43AA(1),
3(b), 44(4), (5), (6)(b)
Civil Aviation Regulations 1988
(Cth) reg 30, 269(1)
Ah Toy v
Registrar of Companies (1985) 10 FCR 280
Australian Competition and
Consumer Commission v Telstra Corporation Ltd (2009) 176 FCR
203
Australian Telecommunications Commission v Colpitts [1986] FCA 257; (1986) 12 FCR
395
Civil Aviation Safety Authority v Allan [2001] FCA 1064; (2001) 114 FCR
14
Civil Aviation Safety Authority v Central Aviation Pty Ltd [2009] FCA 49; (2009)
108 ALD 329
Collins v Military Rehabilitation and Compensation Commission
[2005] FCA 1862; (2005) 147 FCR 570
Comcare Australia v Lees (1997) 151 ALR
647
Comcare v Moon [2003] FCA 569; (2003) 75 ALD 160
Dornan v Riordan (1990)
24 FCR 564
Fawcett v Civil Aviation Safety Authority (2008) 107 ALD
425
Gladstone Park Shopping Centre Pty Ltd v Ross Wills [1984] FCA 166; (1984) 6 FCR
496
Hazim v Secretary, Department of Family and Community Services
[2002] FCA 242; (2002) 116 FCR 533
Hill v Repatriation Commission [2004] FCA 832; (2004) 207 ALR
470
Hughes v Western Australian Cricket Assn (Inc) [1986] HCA 72; [1986] ATPR 48,134
(40-748)
Iacono v Tax Agents’s Board (2006) 91 ALD
350
Preston v Secretary, Department of Family and Community Services
(2004) 39 AAR 177
Repatriation Commission v O’Brien [1985] HCA 10; (1985)
155 CLR 422
Telstra Corporation Ltd v Keen [2003] FCA 1440
CIVIL AVIATION SAFETY AUTHORITY v
CENTRAL AVIATION PTY LIMITED
NSD 160 of
2009
BENNETT, FLICK AND MCKERRACHER JJ
2 OCTOBER
2009
SYDNEY
THE COURT ORDERS THAT:
2. The decision of the Tribunal be set aside.
3. The matter be remitted to the Administrative Appeals Tribunal for determination in accordance with law.
4. There be no order as to the costs of the appeal.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal
Court Rules.
The text of entered orders can be located using eSearch on the
Court’s website.
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ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF
AUSTRALIA
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BETWEEN:
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CIVIL AVIATION SAFETY AUTHORITY
Appellant |
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AND:
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CENTRAL AVIATION PTY LIMITED
Respondent |
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JUDGES:
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BENNETT, FLICK AND MCKERRACHER JJ
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DATE:
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2 OCTOBER 2009
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PLACE:
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SYDNEY
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REASONS FOR JUDGMENT
THE COURT:
1 On 6 July 2007 the Civil Aviation Safety Authority (‘CASA’) advised Central Aviation Pty Ltd (‘Central’) of its decision to cancel its Certificate of Approval (‘COA’). On the same date CASA also advised Central’s chief engineer, owner and director (Mr Douglas Fawcett) of its decision to cancel his Aircraft Maintenance Engineer Licence (‘the Licence’).
2 Review of those decisions was sought in the Administrative Appeals Tribunal (‘the Tribunal’) by way of two separate proceedings. The two proceedings were apparently heard concurrently. On 19 May 2008 the Tribunal set aside each of the decisions and varied both the Licence and the COA: Fawcett v Civil Aviation Safety Authority (2008) 107 ALD 425, purportedly pursuant to reg 30(3) and reg 31(3) of the Civil Aviation Regulations 1988 (Cth) (‘the Regulations’).
3 CASA appealed. The subject of the appeal was confined to the proceeding before the Tribunal concerning the COA. An amended notice of appeal filed on 28 October 2008 identified seven ‘questions of law’. Two of those questions directed attention to:
• whether it was open to the Tribunal to impose the conditions it sought to impose upon the COA; and
• whether the Tribunal had complied with the obligations imposed by s 43(2) of the Administrative Appeals Tribunal Act 1975 (Cth) (‘the AAT Act’) which provides that the Tribunal shall give reasons either orally or in writing for its decision.
4 The primary judge relevantly concluded (Civil Aviation Safety Authority v Central Aviation Pty Ltd [2009] FCA 49; (2009) 108 ALD 329) that:
(a) it was open to the Tribunal to impose those conditions; and
(b) the Tribunal had not complied with obligations imposed by s 43(2) of the AAT Act to provide reasons which were adequate.
The primary judge set aside the reasons for decision of the Tribunal and ordered ‘that the Tribunal as originally constituted provide reasons in accordance with s 43(2)’ (‘the remittal order’).
5 The appointment of the Tribunal member who constituted the Tribunal expired on 4 July 2009. Not unexpectedly, the unavailability of the former Tribunal member made compliance with the remittal order as made by the primary judge impossible.
6 By the notice of appeal, CASA seeks to appeal from the answer provided by his Honour as to the ability of the Tribunal, pursuant to the Regulations, to impose the conditions. The notice of appeal characterises the answer provided as an ‘order’.
7 CASA also appeals against the order setting aside the Tribunal’s reasons and requiring that reasons be provided.
8 For the reasons which follow, the primary judge did not err in his construction of the Regulations. However, the appeal against the remittal order should be allowed, the decision of the Tribunal should be set aside and the matter remitted to the Tribunal.
IS THE DECISION OF THE PRIMARY JUDGE SUSCEPTIBLE OF APPEAL?
9 A question arises at the outset as to whether the answers provided by the primary judge to the ‘questions of law’ are susceptible of appeal.
10 The relevant appellate jurisdiction of this Court is that conferred by s 24(1)(a) of the Federal Court of Australia Act 1976 (Cth) (‘the 1976 Act’), namely the ‘jurisdiction to hear and determine appeals from judgments of the Court constituted by a single Judge’.
11 A question arises as to whether an appeal lies against the answer provided by the primary judge with respect to the ability of the Tribunal to impose conditions. If the answer is part of the ‘judgment’ of the Court, an appeal lies. It may be that a central part of the reasoning is so vital to the formal orders that it is ‘embedded’ in the judgment or ‘implicit’ in it – see Australian Telecommunications Commission v Colpitts [1986] FCA 257; (1986) 12 FCR 395 (at 402), per Toohey J with whom Fisher J agreed and recently, the Full Court in Australian Competition and Consumer Commission v Telstra Corporation Ltd (2009) 176 FCR 203 (Ryan, Jacobson and Foster JJ) at [23]-[24] and at [64]-[66].
12 Section 4 of the 1976 Act defines a ‘judgment’ as ‘a judgment, decree or order, whether final or interlocutory, or a sentence’.
13 The term ‘judgment’ as it is used in ss 4 and 24 of the 1976 Act has the same meaning as that used in s 73 of the Constitution and refers to the formal order of a Court: Ah Toy v Registrar of Companies (1985) 10 FCR 280 at 285. Toohey, Morling and Wilcox JJ there observed:
... [T]he starting point for a consideration of the competency of this appeal must be ... s 24 of the Federal Court of Australia Act 1976. Unless there is a "judgment, decree or order", there is nothing against which an appeal may be brought. ... It is accepted that the expression "judgment, decree or order" bears the meaning which the words "all judgments, decrees, orders ..." have in s 73 of the Constitution: Moller v Roy [1975] HCA 31; (1975) 132 CLR 622 per Barwick CJ at 625. In that case Mason J, speaking of s 46 of the Supreme Court Act (NT), said (at 639):"However, I see no alternative but to give the word ‘judgment’ as it appears in s 46 its accepted legal meaning, that is, the formal order made by a court which disposes of, or deals with, the proceeding then before it: see R v Ireland [1970] HCA 21; (1970) 126 CLR 321 at 330; Lake v Lake [1955] 366 at 343–344. Any other view would, I think, disregard the similarity between the provisions of s 46 and those of s 35 of the Judiciary Act 1903 (Cth) which are so obviously based on the provisions of s 73 of the Constitution where the word ‘judgments’ is used in the same sense."
14 In the present proceeding the form of the ‘orders’ as made by the primary judge was (relevantly) to ‘order’ that ‘[t]he questions be answered as follows: ...’. It follows that an appeal lies against the order.
15 No submission was advanced on behalf of Central that the manner in which his Honour resolved these questions was not susceptible of appeal. Even in the absence of any such submission, the competence of an appeal remains a matter for consideration.
16 Questions as to the correct construction of the Regulations are properly before this Court.
THE IMPOSITION OF CONDITIONS
17 CASA contends by its second ground of appeal that the primary judge erred in holding (at [64]) that the provisions of reg 30 of the Regulations were not relevant to the formulation of the conditions by which the Tribunal purported to vary Central’s COA under reg 269(1).
18 The third ground of appeal is that the primary judge erred in taking the view (at [58]) that it was within the power of the Tribunal to impose a condition on Central’s COA involving the appointment of a person ‘acceptable’ to CASA.
19 Although these grounds raise different issues, it is convenient to deal with them together as they each focus on the COA and the Regulations.
20 The conditions imposed by the Tribunal were as follows:
1. Central Aviation must employment [sic] on a full-time basis a licensed aircraft maintenance engineer (the LAME) acceptable to CASA;2. The LAME must supervise all maintenance activities and conduct all certifications for maintenance as required by and in accordance with Schedule 6 to the CAR;
3. The LAME may organise another appropriately qualified and licensed engineer (other than the first applicant) who is listed in the Register of Appointed Persons in Central Aviation’s Procedures Manual to supervise and certify all maintenance carried out by Central Aviation during any periods when the LAME Is [sic] absent due to sickness, leave or personal commitments;
4. Central Aviation must employ an appropriately qualified, independent auditor (the Auditor) acceptable to CASA;
5. The Auditor must conduct comprehensive quality and safety systems audits on a 6 monthly schedule and provide a report to Central Aviation within two weeks of the completion of each audit;
6. Central Aviation must cause a copy of each audit report to be provided to CASA (Sydney Region Office) concurrently with the provision of the report to Central Aviation; and
7. Central Aviation must employ a technical records clerk to maintain the maintenance data necessary for all operation. [emphasis added]
21 It is to be noted that after delivery of reasons in the Tribunal but before the parties ‘agreed the conditions’, the arguments which grounds 2 and 3 now seek to advance were not raised with the Tribunal. This was apparently because it had not been anticipated that the conditions foreshadowed by the Tribunal as expressed (in [126]–[130]) would be imposed. Imposition of conditions by the Tribunal had seemingly not been expected by CASA. Nevertheless, it must be observed that it was open to CASA, before agreeing to the conditions, to raise the arguments now advanced in grounds 2 and 3 of the appeal with the Tribunal rather than, for the first time, in an amended or supplementary notice of appeal before the primary judge.
22 In any event, for the following reasons, in our view the primary judge was correct in rejecting the arguments raised in grounds 2 and 3.
23 CASA’s appeal centred on the conclusion by the primary judge that the Tribunal was both empowered and entitled under reg 269(1) of the Regulations to impose conditions on Central’s licence and that the conditions thereby imposed are independent of reg 30(3) and of any constraints that may be imposed on conditions imposed under reg 30.
24 Regulation 269(1) provides:
269 Variation, suspension or cancellation of licence, certificate or authority
(1) Subject to this regulation, CASA may, by notice in writing served on the holder of a licence or certificate or an authority, vary, suspend or cancel the licence, certificate or authority where CASA is satisfied that one or more of the following grounds exists, namely:
(a) that the holder of the licence, certificate or authority has contravened, a provision of the Act or these regulations, including these regulations as in force by virtue of a law of a State;(b) that the holder of the licence, certificate or authority fails to satisfy, or to continue to satisfy, any requirement prescribed by, or specified under, these regulations in relation to the obtaining or holding of such a licence or certificate or an authority;
(c) that the holder of the licence, certificate or authority has failed in his or her duty with respect to any matter affecting the safe navigation or operation of an aircraft;
(d) that the holder of the licence, certificate or authority is not a fit and proper person to have the responsibilities and exercise and perform the functions and duties of a holder of such a licence or certificate or an authority; or
(e) that the holder of the licence, certificate or authority has contravened, a direction or instruction with respect to a matter affecting the safe navigation and operation of an aircraft, being a direction or instruction that is contained in Civil Aviation Orders.
25 It is to be noted that reg 269(1):
• does not contain any express limitation on its application other than any limitation imposed by reg 269 itself;
• is broad in its application, extending to matters such as air safety;
• allows for variation of, amongst other things, licences that have already been issued; and
• is directed specifically (in (1)(a) to (c)) to permitting a response by CASA when specified matters of concern have arisen. Such matters had given rise to the issues before the Tribunal. In contrast, reg 30 applies from the outset of the grant of a COA and is applicable throughout its life.
26 CASA submits that reg 30(3) imposes a general mode of application of condition on any licence. That mode must therefore apply to a variation by way of condition pursuant to reg 269(1). That step is necessary for CASA’s next submission, that before a condition can be imposed under reg 30(3), the whole of reg 30 must be applied.
27 The better view is that the general regime for maintenance of aircraft (amongst other things) is governed by reg 30 but reg 269 deals with specific measures CASA may take in specified circumstances of concern.
28 It follows that the primary judge was not in error when he concluded, at [62]:
Secondly, reg 30(3) is not to be seen, as the Authority contends, as a specific power to impose conditions but rather as a general one enlivened whenever the safety of air navigation requires it. It is reg 269(1) which is the specific provision. It is concerned, relevantly, with the imposition of conditions for, broadly speaking, disciplinary reasons. So viewed, it is not a question of a general provision being used to defeat the limitations of a more specific provision but rather the ordinary usage of a specific provision to carry out its clearly intended purpose.29 Accordingly, his Honour was of the view that the imposition of conditions pursuant to reg 269(1) were independent of reg 30(3) and that the conditions imposed were within the power conferred by reg 269(1). That conclusion was not shown to be in error.
30 The Tribunal made findings by reference to reg 269 and purported to impose conditions pursuant to reg 30 and reg 31. However, we note that it would seem from the Tribunal’s reasons, to the extent that the reasons dealt with this issue, that it purported to impose the conditions pursuant to reg 30 and reg 31, and possibly reg 269. The primary judge did not consider whether, if that were the case, there were any other matters in reg 30 or reg 31 that may have affected conditions imposed pursuant to reg 30(3). While this matter was canvassed in the appeal by CASA in the context of arguing ground 2, the issue does not directly arise in the appeal and we express no view on it.
31 The conditions are not events which endure indefinitely. The relationship between CASA and those for whom and in respect of whom it exercises its powers and duties is ongoing. CASA will continue to have wide ranging powers to rectify deficiencies (if any) which may be occasioned in implementation of these conditions. Equally, if such powers are exercised, there would usually be a capacity on the part of Central to seek review of that exercise. This being so, it can not be thought that the conditions of which complaint is made present a functional difficulty for CASA.
32 Further, we are unable to accept that the conditions so imposed fall within the prohibition expressed in Civil Aviation Safety Authority v Allan [2001] FCA 1064; (2001) 114 FCR 14. In that case the Tribunal had both set aside a refusal to issue a certificate and also directed CASA to issue a relevant certificate for 6 months. Justice Moore held that the decision of the Tribunal had involved an impermissible melding of the alternative powers available under s 43(1)(c) of the AAT Act. However, in this instance, the Tribunal made the decision in express terms by setting aside the reviewable decisions and varying both the Licence and the COA. It was the Tribunal that made the decision rather than CASA. As the primary judge observed (at [58]), once it is accepted that the powers of CASA run to the imposition of the condition involving the appointment of a person ‘acceptable’ to CASA, then the imposition of that condition by the Tribunal is not a remission to CASA but, rather, the exercise by the Tribunal of a power granted to CASA.
33 The third ground of appeal complains of the imposition of conditions requiring acceptability of Central’s two proposed employees to CASA. The argument appears to be that the Tribunal cannot, on the one hand, step into the shoes of CASA and make its decision but on the other hand require CASA to exercise a discretion about acceptability of the two employees. Secondly, it is said that ‘acceptability’ is a concept which suffers from ‘un-stated criteria’.
34 It was accepted by counsel for CASA that the conditions imposed could have been imposed by CASA itself. The conditions directly relate to addressing the circumstances giving rise to the actions taken by CASA and addressed by the Tribunal. The Tribunal has exercised, in place of CASA, powers that exist under reg 269. In doing so, however, it has preserved the practical implementation of two aspects of those conditions on an ongoing basis consistent with the ongoing practical role of CASA by requiring CASA to satisfy itself as to the acceptability of both the maintenance engineer and the auditor to be appointed.
35 That acceptability would be measured by both the fundamental purposes of the legislative regime, namely, air navigation safety and also the other specific concerns in respect of which adverse findings were reached against Central in the Tribunal’s decision.
36 The notion of acceptability thus constrained is not difficult to understand. By the imposed conditions, CASA is given flexibility to ensure that any person so appointed is ‘acceptable’ in the sense of being someone who can, in CASA’s view, implement efficiently and consistently with the objectives of the legislative regime, the practices for which the proposed new employees are to be engaged. At all times CASA would have in mind the objectives of the Civil Aviation Act 1988 (Cth) (to establish a regulatory framework for maintaining, enhancing and promoting the safety of civil aviation, with particular emphasis on preventing aviation accidents and incidents) just as it obviously did when initially exercising its powers to cancel the COA and the Licence.
37 Grounds 2 and 3 of the appeal are dismissed.
THE ORDER CONSEQUENT ON THE FAILURE TO PROVIDE REASONS
38 It is common ground in this appeal that that there has been a failure on the part of the Tribunal to comply with the requirement imposed by s 43(2) to provide adequate reasons and that such a failure constitutes a ‘question of law’ for the purposes of s 44(1) of the AAT Act. There is no need for this Court to consider that issue further. Neither CASA nor Central challenge the primary judge’s conclusion that the Tribunal’s reasons were inadequate.
39 In issue in the present appeal is the order made by his Honour that the reasons as provided by the Tribunal be set aside and adequate reasons be provided. The principal order as sought by CASA is an order that the ‘decision of the Administrative Appeals Tribunal made on 10 June 2008 be set aside and the matter remitted to the Tribunal for rehearing according to law’ (emphasis added). Central accepted the failure on the part of the Tribunal to comply with the mandatory requirements imposed by s 43(2), Central nevertheless maintained that the appropriate order was to allow the appeal but not to set aside the Tribunal decision.
The expiration of the Tribunal member’s term of appointment
40 The importance of s 43(2) to the administrative decision-making process, and its importance in ensuring that a decision is the product of a reasoning process conducted in accordance with law, should be constantly recalled.
41 Where there is an inadequacy in the reasons provided – such that there has been non-compliance with s 43(2) – a party has been denied a fundamental and important right. The decision-maker has not applied to his or her decision-making task the discipline imposed by the legislature to make those findings on material questions of fact relevant to the decision to be made and then to explain that decision by reference to those facts. The winning party may not be the first to complain – that party has the desired result, albeit for reasons that cannot be discerned. However the losing party does not know why he or she has lost. The reviewing Court is in no better position. A reviewing Court cannot properly discharge its functions if the reasons for the decision under review are not set forth.
42 In circumstances such as the present, where it is common ground that there is a statutory entitlement to reasons and where such reasons have not been provided and cannot now be provided by the Tribunal member who made the decision, it is inevitable that the decision itself must be set aside.
43 The primary judge correctly concluded that there had been non-compliance with s 43(2) and ordered that reasons now be provided by the original decision-maker. Compliance with that order is no longer possible. Because of the accepted failure to comply with s 43(2), the Tribunal decision must be set aside and the matter remitted for a new hearing in the Tribunal.
Allowing the appeal – but leaving the Tribunal’s decision to stand?
44 Separate from any consideration as to the change in circumstances, the primary judge erred in failing to set aside the decision by concluding that the Tribunal had the ability to invoke s 43AA of the AAT Act to rectify the deficiencies in its reasons.
45 Two parts of the course pursued by his Honour warrant brief attention, namely:
(i) the conclusion that the inadequacy in the reasons did not vitiate the decision itself and that that deficiency could be addressed by allowing the Tribunal now to provide reasons; and
(ii) reliance upon the ability of the Tribunal to invoke s 43AA of the AAT Act to provide reasons and, potentially, to reach a different decision to that already published.
46 As to the former matter, his Honour referred to the decision of Brennan J in Repatriation Commission v O’Brien [1985] HCA 10; (1985) 155 CLR 422 and to the subsequent decision of the Full Court in Dornan v Riordan (1990) 24 FCR 564.
47 In O’Brien, a decision of the Full Court was affirmed by a majority decision of the High Court. Justice Brennan dissented. However, his Honour discussed whether a failure to expose a satisfactory process of reasoning warranted an inference being drawn that the Tribunal had failed to exercise its powers in accordance with law and an order that its decision be set aside. It was in that context that Brennan J made the following observations at 445 as to whether a failure to provide reasons does ‘invalidate [a] decision or warrant its being set aside’:
It is not clear to me that the A.A.T. did fail to expose its reasons for rejecting Mr. O'Brien’s claim but, in any event, a failure by a tribunal adequately to fulfil its statutory obligation to state the reasons for making an administrative decision does not, without more, invalidate the decision or warrant its being set aside by a court of competent jurisdiction. If a failure to give adequate reasons for making an administrative decision warrants an inference that the tribunal has failed in some respect to exercise its powers according to law (as, for example, by taking account of irrelevant considerations or by failing to consider material issues or facts), the court may act upon the inference and set the decision aside. In such a case, the exercise of the statutory power to make a decision is held invalid not because of a failure to state the reasons for making the decision, but because of a failure to make the decision according to law: ... An obligation to give oral or written reasons for a decision is cast on the A.A.T. by s. 43(2) of the A.A.T. Act, but the remedy for a failure to fulfil that obligation adequately is a mandatory order by the court to do so. An A.A.T. decision, if it is made in accordance with the statutory provisions that govern the exercise of its power, is not invalidated by a mere failure to expose fully the reasons for making it.In Dornan at 573, the Full Court referred to the observations of Brennan J and concluded that:
... [T]he law appears to us to be that a substantial failure to state reasons for a decision, in the circumstance that a statement of reasons is a requirement of the exercise under the statute of the decision-making power, constitutes an error of law.Their Honours then considered the consequence of a failure to provide reasons:
In our opinion, there was in the present case a substantial breach of the Tribunal's duty to state the reasons for its determination. Certainly the trial judge had a discretion as to the order he should make. ... In the present case, however, the reasons are so deficient that it is, in our opinion, impossible to ascertain whether there was any other error in the decision-making process.The decision was set aside.
48 Subsequently, in Comcare Australia v Lees (1997) 151 ALR 647 at 659, Finkelstein J expressed his concurrence with the correctness of the judgment of Brennan J in O’Brien as to the consequences of the failure by the Tribunal to provide reasons for its decisions. However, his Honour concluded that ‘as the Full Court [in Dornan] has reached a different conclusion I am bound to follow it’.
49 A failure to state reasons for a decision – at least in those circumstances where a statement of reasons is a requirement of the exercise of the decision-making process – constitutes an error of law: Preston v Secretary, Department of Family and Community Services (2004) 39 AAR 177 at [21] per Stone J; Hill v Repatriation Commission [2004] FCA 832; (2004) 207 ALR 470 at 474 per Mansfield J.
50 Common to the conclusions expressed in O’Brien by Brennan J and by the Full Court in Dornan remains the prospect of setting aside a decision of the Tribunal in circumstances where the inadequacy in the reasons permits an inference that the decision-making power has not been exercised in accordance with law, or where the deficiency is such that it is impossible to ascertain whether there was any other error in the decision-making process. In such circumstances it may be doubted whether there is such a stark difference in result as may have been assumed between the approach of Brennan J in O’Brien and that of the Full Court in Dornan. The discretion conferred by ss 44(4) and (5) of the AAT Act may well permit an order setting aside a decision under appeal.
51 The question outstanding is the very manner in which the discretion conferred by s 44 should be exercised. That is, whether the Tribunal decision, rather than its reasons, should have been set aside or should now be set aside and whether there should be remittal to the Tribunal, which now must necessarily be differently constituted.
52 Sections 44(4) and (5) of the AAT Act confer ample power to make an order appropriate to the factual and legal issues presented to this Court on appeal. Those subsections provide:
(4) The Federal Court of Australia shall hear and determine the appeal and may make such order as it thinks appropriate by reason of its decision.
(5) Without limiting by implication the generality of subsection (4), the orders that may be made by the Federal Court of Australia on an appeal include an order affirming or setting aside the decision of the Tribunal and an order remitting the case to be heard and decided again, either with or without the hearing of further evidence, by the Tribunal in accordance with the directions of the Court.
53 A central contention advanced by CASA is that the deficiencies identified in the Tribunal’s published reasons will either dictate a contrary conclusion being reached by the Tribunal or, at the very least, will in all likelihood lead to a different conclusion. The primary judge recognised this possibility but said that the Tribunal’s decision and orders could be amended pursuant to s 43AA of the AAT Act. But, so CASA contends, there is no power conferred upon the Tribunal to make a different decision. It contends that, specifically, s 43AA(3)(b), which was relied on by the primary judge, does not confer such a power. Section 43AA is properly to be characterised as a provision ‘in the nature of a slip rule’: Hazim v Secretary, Department of Family and Community Services [2002] FCA 242; (2002) 116 FCR 533 at 541 per Gray J. See also: Telstra Corporation Ltd v Keen [2003] FCA 1440 at [13] per Sackville J.
54 Central sought to characterise the primary judge’s reasoning as either obiter or ‘speculative’. Central sought thereby to avoid a conclusion that any error in his Honour’s reliance upon s 43AA(3)(b) was productive of appellable error and supported a conclusion that the appeal should simply be dismissed. Neither characterisation is correct. His Honour clearly contemplated that his order requiring the Tribunal to provide proper reasons may lead to a different decision and that there was no impediment to the decision being appropriately varied.
55 Notwithstanding the divergence in authority, a failure to comply with s 43(2) of the AAT Act should not inevitably lead to an order pursuant to s 44(5) that the Tribunal’s decision should be set aside in its entirety or, alternatively, lead to the reasons alone being set aside and an order being made for reasons to be provided. The appropriate order to be made pursuant to s 44 will depend upon the facts and circumstances of each individual case and the exercise of the discretion thereby conferred.
56 The inadequacy in the reasons provided by the Tribunal in the present proceeding, and the fact that there was at least the prospect of a different decision being reached on the facts found by the Tribunal, could well have justified a conclusion that the decision should have been set aside. Indeed, given his Honour’s recognition that a different decision may well have followed from such findings, the setting aside of the decision may well have been inescapable. This, in turn, is a factor in the exercise of the discretion conferred by s 44 of the AAT Act not to set aside the decision.
57 The primary judge was of the view that the inadequacy in the reasons provided could be addressed by s 43AA. In that regard, his Honour erred. Section 43AA does not confer the amplitude of power assumed by his Honour. Even had the original Tribunal member remained available to provide reasons, s 43AA does not confer the power to rectify the deficiencies in the reasons identified by the primary judge.
58 Section 43AA(1) of the AAT Act provides:
If, after the making of a decision by the Tribunal, the Tribunal is satisfied that there is an obvious error in the text of the decision or in a written statement of reasons for the decision, the Tribunal may direct the Registrar to alter the text of the decision or statement in accordance with the directions of the Tribunal.Section 43AA does not confer power to revisit a decision once made, save in the limited circumstances expressly stated (Comcare v Moon [2003] FCA 569; (2003) 75 ALD 160, Iacono v Tax Agents’ Board of Victoria (2006) 91 ALD 350 at [9] per Finn J, Collins v Military Rehabilitation and Compensation Commission [2005] FCA 1862; (2005) 147 FCR 570 at [30] per Jacobson J). In Moon at [64]-[65] Mansfield J concluded that s 43AA conferred no power upon the Tribunal to revisit an order it had made as to costs:
[64] In my judgment, it is significant that s 43(5A) of the AAT Act provides that, subject to subs (5B), the decision of the Tribunal comes into operation upon the giving of the decision. Section 43(5B) does not apply to the present circumstances. It is also significant, in my judgment, that s 42A empowers the Tribunal to reinstate proceedings which it has dismissed, but only in limited circumstances. They do not apply in this matter. I note s 42A(9) provides:But that subsection serves s 42A(8) also dealing with the dismissal of an application. [65] The AAT Act, therefore, perfects the Tribunal's orders upon their being pronounced. There is power to correct obvious errors in the text of a decision or the reasons under s 43AA, but not to reverse or vary the decision. It could not be said that the Tribunal, having formally said it set aside the decision under review could then revisit the decision. Matters of expression, or inconsistency or error in calculation, could be corrected under s 43AA, but not the decision itself. If that be so, I do not see how the costs order element of the tribunal's reasons and orders does not have a similar status. Without more, it took effect when made and could be enforced. The Tribunal had given its decision orally, and thereafter its role at least to the extent its decision addressed and resolved matters specifically in issue was spent: see X v Minister for Immigration and Multicultural Affairs (2001) 116 FCR 319 at 326 [23]; [2002] FCA 56; 67 ALD 355 at 361 per Gray J.If it considers it appropriate to do so, the Tribunal may reinstate the application and give such directions as appear to it to be appropriate in the circumstances.
59 Section 43AA does not confer a power to provide the very statement of reasons which should previously have been provided. If there be a failure to provide reasons which comply with s 43(2), that failure cannot be properly characterised as ‘an obvious error in ... a written statement of reasons’. There may appear to be an ‘error’ in the reasons which have been provided but the real complaint is that there has been no proper ‘written statement of reasons’. Even on its terms, s 43AA has no application.
60 Section 43AA(1) of the AAT Act is a provision which, as its terms make clear, is directed to the correction of ‘an obvious error in the text of the decision or in a written statement of reasons...’. Even in the absence of such available inferences as readily emerge from the examples of ‘obvious errors’ set forth in s 43AA(3), s 43AA(1) cannot be construed as conferring any power to alter or vary the actual decision itself.
61 The primary judge’s conclusion that s 43AA(3)(b) of the AAT Act conferred power upon the Tribunal to vary its decision should it emerge that ‘its new reasons are inconsistent with its current decision’ was, with respect, an error. Section 43AA confers no such power. That error went to the exercise of his Honour’s discretion in making the order setting aside the reasons for decision of the Tribunal, but not the decision, and remitting the proceeding such that reasons could now be provided. Nor was his Honour correct when he concluded that ‘s 43AA(3)(b) allows the Tribunal to correct its decision to ensure consistency with its reasons’.
62 Where it has been concluded that reasons as provided do not comply with s 43(2), s 43AA is not the source of power to rectify that inadequacy by providing reasons which do support the decision previously reached. Even if the inadequacy in reasons previously provided may be characterised as ‘obvious’, a conclusion which itself may well be doubted, it would be a curious construction of s 43AA(1) to conclude that that provision empowered a direction to be given to the Registrar to ‘alter the ... statement in accordance with the directions of the Tribunal’ by the incorporation of new reasons either in addition to or in substitution for those previously provided. Even if the new or supplementary reasons could sit comfortably with those previously provided, it may well be doubted whether a direction to incorporate such reasons can truly be characterised as a mere ‘alteration’ of those previously provided.
THE APPROPRIATE ORDERS
63 Central accepts both that:
(i) the Tribunal failed to discharge the obligation imposed upon it by s 43(2) of the AAT Act to provide reasons for its decision; and
(ii) the learned trial judge erred in his construction and application of s 43AA of that AAT Act.
64 It follows that the appeal must be allowed.
65 The two remaining questions are:
(i) whether an order should be made remitting the matter to the Tribunal, albeit necessarily differently constituted, and upon what terms; and
(ii) what is the appropriate order to be made as to costs.
66 Central’s primary position was that the appeal should simply be allowed but that no order should be made remitting the proceeding to the Tribunal. The Tribunal member was no longer available such that any deficiency in the reasons of the Tribunal previously provided could not be now rectified. That was not a matter over which the Tribunal had any control. Given the finding of the Tribunal that it did not consider ‘the Company is not a fit and proper person...’, Central contended that it was entitled to the benefit of that finding and that any future default by the Company, or concern that CASA may have as to its operations, could be left to CASA invoking one or other of the myriad of powers it had. Any remittal of the proceeding to the Tribunal would inevitably expose Central to future legal costs.
67 Notwithstanding these concerns, an order should be made remitting the proceeding to the Tribunal for consideration in accordance with law. A party to proceedings before the Tribunal has a statutory entitlement to reasons and such reasons – it is accepted – have not been provided. The provision of reasons by the Tribunal as previously constituted may or may not have led it to a different conclusion. However, the failure of the Tribunal to comply with this obligation, and the obvious inability of any other Tribunal member now to provide reasons for the conclusion of a former member, cannot deny to CASA a decision according to law, including an explanation for the result reached.
68 It is not appropriate to impose any terms or conditions upon the remittal of the proceeding. It should be left to the Tribunal to determine how it should be reconstituted and it should be left to the Tribunal to determine how it should proceed. CASA gave as an example of a way in which the matter could be conducted efficiently use of the existing transcript.
Costs
69 The remaining question is that of costs. Section 43 of the 1976 Act confers a wide discretion constrained only by reference to the requirement that it be exercised judicially: Hughes v Western Australian Cricket Assn (Inc) [1986] HCA 72; [1986] ATPR 48,134 (40-748) at 48,136 per Toohey J. Attempts to narrow the criteria by reference to which the discretion may be exercised should be resisted: Gladstone Park Shopping Centre Pty Ltd v Ross Wills [1984] FCA 166; (1984) 6 FCR 496 at 504 per Davies J (at 505).
70 Two central issues were pursued on appeal – the form of order to be made consequent upon the inadequacy in the Tribunal’s reasons and the correct construction of reg 30 and reg 269.
71 CASA failed on the substantive appeal point it wished to ventilate (that is, the nature of conditions that can be imposed). Central successfully opposed that point.
72 The parties cannot be held accountable by way of an adverse costs order because of the inadequacy in the reasoning of the Tribunal. No submissions were advanced in opposition to the conclusion of the primary judge that the Tribunal had not afforded CASA an opportunity to submit that its proposed conditions did not comply with reg 30. The question of compliance is a matter that CASA has indicated that it wishes to raise before the Tribunal on remittal.
73 Although CASA succeeded in obtaining a rehearing, that was an outcome inevitably dictated by the error in the usage by the primary judge of the slip rule to correct a jurisdictional deficiency. Central, understandably, does not want a rehearing because of the considerable cost (not to mention risk) involved. However, CASA is entitled to a rehearing. A further hearing before the Tribunal will expose both parties to further costs. CASA has undertaken to be as efficient as possible and to use as much of the existing transcript as is possible, consistent with its advancing its own case. It may be noted that irrespective of any such undertaking, s 33(1AA) of the AAT Act imposes a statutory responsibility upon ‘the person who made the decision’ under review to ‘use his or her best endeavours to assist the Tribunal to make its decision in relation to the proceeding’. The prospect of the further hearing being conducted ‘on the papers’ was also explored. In this respect it may further be observed that s 44(6)(b) provides that, where an order is made remitting a matter to the Tribunal, ‘the Tribunal may ... have regard to any record of the proceeding before the Tribunal prior to the appeal ...’. The manner in which the Tribunal, as re-constituted, avails itself of such powers is a matter for it to determine.
74 CASA has undertaken to pay $5,000 towards Central’s legal costs in conducting the future hearing. That undertaking is consistent with the conduct of litigation by a ‘model litigant’.
75 In the circumstances of the present appeal it is appropriate that there be no order as to costs. Each party should bear its own costs.
CONCLUSIONS
76 The primary judge concluded that the Tribunal failed to comply with s 43(2) of the AAT Act. That is not in issue. In ordering that only the reasons for decision be set aside, the exercise of discretion by the trial judge miscarried to the extent that his Honour considered that s 43AA(3)(b) conferred power on the Tribunal potentially to reach a different decision.
77 The appeal should thus be allowed and the matter remitted to the Tribunal. The unavailability of the former Tribunal member necessarily means that the Tribunal has to be reconstituted. The manner in which the Tribunal resolves the outstanding application for review remains a matter for the Tribunal.
ORDERS
78 The orders of the Court are:
1. The appeal be allowed.
2. The decision of the Tribunal be set aside.
3. The matter be remitted to the Administrative Appeals Tribunal for determination in accordance with law.
4. There be no order as to the costs of the appeal.
Associate:
Dated: 2
October 2009
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Solicitor for the Appellant:
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Civil Aviation Safety Authority Legal Branch
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Counsel for the Respondent:
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Mr J Anderson
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Solicitor for the Respondent:
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Goldrick Farrell Mullan
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URL: http://www.austlii.edu.au/au/cases/cth/FCAFC/2009/137.html