Federal Court of Australia

Transcription

1 1 of 27 3/01/2015 5:08 PM [Home] [Databases] [WorldLII] [Search] [Feedback] Federal Court of Australia You are here: AustLII >> Databases >> Federal Court of Australia >> 2014 >> [2014] FCA 1016 [Database Search] [Name Search] [Recent Decisions] [Noteup] [Download] [Context] [No Context] [Help] Eagle v Civil Aviation Safety Authority [2014] FCA 1016 (18 September 2014) Last Updated: 19 September 2014 FEDERAL COURT OF AUSTRALIA Eagle v Civil Aviation Safety Authority [2014] FCA 1016 Citation: Eagle v Civil Aviation Safety Authority [2014] FCA 1016 Parties: ANGUS EAGLE v CIVIL AVIATION SAFETY AUTHORITY File number(s): NSD 131 of 2014 Judge(s): BENNETT J Date of judgment: 18 September 2014 Catchwords: NEGLIGENCE proceedings against Civil Aviation Safety Authority ( CASA ) whether an applicant for certification is owed a duty of care by CASA whether statutory or common law duty to provide

2 2 of 27 3/01/2015 5:08 PM certification includes a duty to act without unreasonable delay whether the common law duty of care as pleaded is inconsistent with CASA s powers and functions PRACTICE AND PROCEDURE application for dismissal of proceedings under s 31A of the Federal Court of Australia Act 1976 (Cth) alternatively for the statement of claim to be struck out whether reasonable cause of action disclosed Legislation: Civil Aviation Act 1988 (Cth) ss 9A, 31 Federal Court of Australia Act 1976 (Cth) s 31A Cases cited: Avenhouse v Hornsby Shire Council (1988) 44 NSWLR 1 Fernando v Commonwealth [2010] FCA 753; (2010) 188 FCR 188 Polar Aviation Pty Ltd v Civil Aviation Safety Authority (No 4) (2012) 203 FCR 293 Polar Aviation Pty Ltd v Civil Aviation Safety Authority (2012) 203 FCR 325 Repacholi Aviation Pty Ltd v Civil Aviation Safety Authority [2009] FCA 1487; (2009) 263 ALR 93 Repacholi Aviation Pty Ltd v Civil Aviation Safety Authority (No 2) [2012] FCA 1297 Stovin v Wise [1996] UKHL 15; [1996] AC 923 Stuart v Kirkland-Veenstra [2009] HCA 15; (2009) 237 CLR 215 Sullivan v Moody (2001) 207 CLR 562 Sutherland Shire Council and Heyman [1985] HCA 41; (1985) 157 CLR 424 W v Home Office [1997] Imm AR 302 Date of hearing: 13 June 2014 Date of last submissions: 23 June 2014

3 3 of 27 3/01/2015 5:08 PM Place: Division: Category: Sydney GENERAL DIVISION Catchwords Number of paragraphs: 65 Counsel for the Applicant: Counsel for the Applicant: Solicitor for the Applicant: Counsel for the Respondent: Solicitor for the Respondent: A Crossland K Jones S McMillan I Harvey Minter Ellison Lawyers IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 131 of 2014 BETWEEN: AND: ANGUS EAGLE Applicant CIVIL AVIATION SAFETY AUTHORITY Respondent JUDGE: BENNETT J DATE OF ORDER: 18 SEPTEMBER 2014

4 4 of 27 3/01/2015 5:08 PM WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. The amended statement of claim filed on 15 April 2014 be struck pursuant to rule of the Federal Court Rules The proceedings be dismissed pursuant to s 31A of the Federal Court of Australia Act 1976 (Cth). 3. The applicant pay the respondent s costs of the proceedings. Note: Entry of orders is dealt with in Rule of the Federal Court Rules IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 131 of 2014 BETWEEN: AND: ANGUS EAGLE Applicant CIVIL AVIATION SAFETY AUTHORITY Respondent JUDGE: BENNETT J DATE: 18 SEPTEMBER 2014 PLACE: SYDNEY REASONS FOR JUDGMENT 1. Mr Eagle is and was employed by Qantas Airways Limited (Qantas) as a commercial airline pilot and held the position of Captain on a Boeing 737 aircraft. Mr Eagle has filed an amended statement of claim naming the Civil Aviation Safety Authority ( CASA ) as the respondent. CASA is established by and governed by the Civil Aviation Act 1988 (Cth) (the CA Act). 2. CASA seeks to have the amended statement of claim struck out under rule of the Federal Court Rules 2011 (the Rules) on the basis that it discloses no reasonable cause of action or, alternatively, on the basis that parts of the pleading are vague and embarrassing and/or inadequately or insufficiently particularised and have a tendency to cause prejudice, embarrassment or delay in the proceeding. Further, or in the alternative, CASA seeks to have the proceeding dismissed pursuant to s 31A of the Federal Court of Australia Act 1976 (Cth) (Federal Court Act) as having no reasonable prospects of success and/or pursuant to rule of the Rules, as disclosing no reasonable cause of action, or alternatively being frivolous or vexatious. 3. During the course of the hearing one of the paragraphs as to which a complaint was made, paragraph 17, was examined in further detail and after the hearing and by consent, Mr Eagle further amended the amended statement of claim with respect to that paragraph (the pleading). However, the late

5 5 of 27 3/01/2015 5:08 PM amendment has resulted in some confusion in the way in which submissions were advanced and are now to be considered. I shall proceed on the basis that the further amended paragraph 17 is part of the pleading. 4. For the purposes of this application, the parties have agreed on a joint statement of asserted facts, which is annexed to these reasons. THE AMENDED STATEMENT OF CLAIM 5. It is pleaded, and not in dispute, that Mr Eagle requires a current Class 1 Medical Certificate (Medical Certificate) to fulfil his employment duties to Qantas. The pleading relevantly asserts as follows: 11. Reg of the Civil Aviation Safety Regulations 1988 (Cth) (CAS Regulations) provided at all material times that CASA must issue a Medical Certificate (which included a Class 1 Medical Certificate) to a person who applies for such a Medical Certificate if such person met the requirements of Reg (2), including, inter alia, the requirement that the person met what the Regulation calls the relevant medical standard. 11A. CASA had a statutory duty to Mr Eagle to issue him with a Class 1 Medical Certificate if he met the requirements of Reg (2) of the CAS Regulations. 11B. In the event that Mr Eagle applied for a Class 1 Medical Certificate and met the requirements of Reg (2) of the CAS Regulations, CASA had a statutory duty to Mr Eagle to issue him with a Class 1 Medical Certificate without unreasonable delay CASA knew or should reasonably have known that Mr Eagle s ability to earn income would be affected by: (a) CASA s determination of any application by Mr Eagle for a Class 1 Medical Certificate; and further or in the alternative (b) the time taken by CASA to grant him a Class 1 Medical Certificate in circumstances where any previous Class 1 Medical Certificate issued to Mr Eagle had become or would become invalid or had or would expire; and further or in the alternative (c) CASA s power to delay or unreasonably delay any decision to grant him a Class 1 Medical Certificate in circumstances where any previous Class 1 Medical Certificate issued to Mr Eagle had become or would become invalid or had or would expire. 17. In the circumstances set out above (paragraphs 3-16), CASA had a common law duty to Mr Eagle to take reasonable care not to unreasonably delay its determination of whether (as per Reg (2)(e)(i) of the CAS Regulations) Mr Eagle met the relevant medical standard or, in the alternative, to take reasonable care not to unreasonably delay its determination of whether (as per Reg (2)(e)(ii) of the CAS Regulations) Mr

6 6 of 27 3/01/2015 5:08 PM Eagle, although failing to meet the relevant medical standard, nevertheless was not likely to endanger the safety of air navigation The length of CASA s unreasonable delay was: (a) the period between 15 December 2010 or some other proximate date and 12 April 2012; or, in the alternative (b) the period between 5 May 2011 or some other proximate date and 12 April 2012; or, in the alternative (c) 29 August 2011 or some other proximate date and 12 May [sic: April] 2012; or, in the alternative (d) 2 November 2011 or some other proximate date and 12 May [sic: April] Particulars (i) According to CASA, the service delivery standard for assessing an application for a Medical Certificate is (and was at the relevant time) 28 days; (ii) According to CASA, complex cases are (and were at the relevant time) to be assessed by Complex Case Management (CCM) process that may take an additional 3-4 weeks; (iii) CASA did not engage or apply the CCM process; (iv) If CASA had engaged the CCM process, Mr Eagle would have received his Medical Certificate by 15 December 2010 and should in any case have been applying the CCM process; (v) In the alternative, by 5 May 2011, CASA had sufficient information to determine Mr Eagle s application and should in any case have been applying the CCM process; (vi) In the further alternative, by 29 August 2011, CASA had sufficient information to determine Mr Eagle s application and should in any case have been applying the CCM process; (vii) In the further alternative, by 2 November 2011, CASA had sufficient information to determine Mr Eagle s application and should in any case have been applying the CCM process.

7 7 of 27 3/01/2015 5:08 PM 55. By engaging in the unreasonable delay referred to above, CASA breached its duty of care to Mr Eagle. THE ACT AND REGULATIONS 6. Section 9A(1) of the CA Act provides: In exercising its powers and performing its functions, CASA must regard the safety of air navigation as the most important consideration. 7. Regulation of the CAS Regulations provides that: A person may apply to CASA for the issue of a Medical Certificate. 8. CASA must issue a Medical Certificate if the applicant meets the requirements of reg (2). Sub-regulation (2) relevantly provides that:... the requirements are: (a) the applicant has undergone any relevant examinations that, in the opinion of CASA, are necessary in this particular case; and... (e) either: (i) the applicant meets the relevant medical standard; or (ii) if the applicant does not meet that medical standard to the extent to which he or she does not meet the standard is not likely to endanger the safety of air navigation... (Emphasis added) 9. The pleading now alleges that Mr Eagle had undergone any relevant examinations that in the opinion of CASA were necessary in the particular case (sub-reg 2(a)) and that he met the relevant medical standard or, if he did not meet it, that he was not likely to endanger the safety of air navigation (sub-reg (e)(i) or (e)(ii)). When asked whether he relied on sub-reg (e)(i) or (e)(ii), namely whether he met the relevant standard, or in the alternative did not meet it but was not likely to endanger the safety of air navigation, Mr Eagle said that there was a strong possibility that he was relying on (e)(ii). 10. Regulation (7)(b) provides that CASA must not issue a Medical Certificate to an applicant if it is satisfied that the applicant does not satisfy the requirements of this regulation.

8 8 of 27 3/01/2015 5:08 PM 11. Regulation (1) stipulates that this regulation applies despite any other provision of the CAS Regulations that provides for the grant or issue of an authorisation, subject to a number of provisions of the CA Act which are not relevant in the present case. Regulation (1A) provides that: Subject to subregulations (1B) and (1C), if a person has applied for an authorisation in accordance with these Regulations, CASA may grant the authorisation only if: a. the person meets the criteria specified in these Regulations for the grant of the authorisation; and b. any other requirements in relation to the person that are specified in these Regulations for the grant of the authorisation are met; and c. any other requirements in relation to the thing in respect of which the application is made that are specified in these Regulations for the grant of the authorisation are met; and d. these Regulations do not forbid CASA granting the authorisation in the particular case; and e. granting the authorisation would not be likely to have an adverse effect on the safety of air navigation. (Emphasis added) 12. Regulation provides for a table, table , which sets out the criteria that a person must satisfy to meet medical standard 1. Relevantly the criteria are: 1.2 Has no safety-relevant condition of any of the following kinds that produces any degree of functional incapacity or a risk of incapacitation:... a. An abnormality; b. A disability or disease (active or latent); Is not using any over-the-counter or prescribed medication or drug (including medication or a drug used to treat a disease or medical disorder) that causes the person to experience any side effects likely to affect the person to an extent that is safetyrelevant Has no established medical history or clinical diagnosis of: (a) a safety-relevant disease of the nervous system; or

9 9 of 27 3/01/2015 5:08 PM... (c) a disturbance of consciousness for which there is no satisfactory medical explanation and which may recur 13. CASA submits that the CAS Regulations provide for a deliberative process in order for CASA to be able to form the requisite satisfaction. Once it has formed that satisfaction, that the applicant meets the requirements in reg (1), CASA must issue the Medical Certificate. CASA emphasises that it is not simply a question of medical evidence or of medical opinion, or just a ticking of a box that then results in a person meeting a particular statutory standard or description, and thereby entitling them to a particular certification. 14. This, as CASA submits, elevates aviation safety to the paramount consideration in the exercise of CASA s functions and powers, such that CASA must evaluate the risk and come to the required state of satisfaction. CRITICISMS OF THE PLEADING 15. CASA points out that the pleading proceeds upon an assumption that Mr Eagle met the requirements of the CAS Regulations and that this was sufficient to have obliged CASA to issue the Medical Certificate. 16. A step missing in the pleading is that CASA formed the requisite satisfaction. Fundamental to CASA s case is that the appropriate, and required, course is that CASA has to form a state of satisfaction after the applicant has fulfilled the requirements in circumstances where, as here, there has been an issue as to his medical condition. Accordingly, CASA submits, that part of the pleading is embarrassing. 17. A state of satisfaction by CASA as to the fulfilment of the regulatory requirement is necessary. It is not clear from the pleading whether the alleged delay was in the formation of a state of satisfaction or whether CASA formed the satisfaction and then delayed. To this extent, the pleading fails to allege or refer to an important element of the cause of action and fails to articulate the alleged delay upon which the cause of action depends, and is liable to be struck out. 18. The question that then arises is whether, if the pleading were further amended, for example, to plead the allegation that CASA formed the satisfaction and then unreasonably delayed, or that CASA delayed in coming to the state of satisfaction, the cause of action could succeed. This raises the question of an available cause of action. CASA says that the authorities are still against the possibility of a successful outcome for Mr Eagle, and that CASA does not owe him a duty of care as alleged, or at all. CHRONOLOGY 19. It is helpful to examine the chronology as taken from the joint statement of asserted facts. The relevant dates are as follows: On 26 and 27 January 2010, Mr Eagle underwent sleep study investigations and was diagnosed with idiopathic hypersomnolence (IH). On 29 January 2010, a letter was caused to be provided to CASA concerning Mr Eagle s diagnosis of IH. On 3 March 2010, CASA issued Mr Eagle with a new Medical Certificate. On 15 October 2010, Mr Eagle applied for a renewal of his Medical Certificate. On 16 December 2010, CASA received a letter from one of Mr Eagle s physicians dated 13 December 2010, stating that:

10 10 of 27 3/01/2015 5:08 PM The most appropriate diagnosis for Mr Eagle in respect of a wakefulness disorder was IH; There was no evidence to suggest that Mr Eagle s hypersomnolence was likely to be explicable in terms of a specific neurological disorder independent of narcolepsy and IH; If Mr Eagle continued to take his medication as prescribed, the physician would expect Mr Eagle to have an ongoing clinical benefit ; and There was no reason to expect that the medication would cause side-effects in the future which would interfere with Mr Eagle s ability to continue to work as a commercial pilot. On 10 May 2011, CASA received a letter dated 5 May 2011 from one of Mr Eagle s physicians, Dr Tolhurst, informing it of the results of a Maintenance of Wakefulness Test (MWT) performed by Dr Eagle without medication. Dr Tolhurst reported that while Mr Eagle had fallen asleep during the MWT, his overall level of vigilance was very good and he could see no reason why Mr Eagle should be prevented from flying from a sleep disorders point of view. On 12 August 2011, Mr Eagle undertook another MWT without medication. Mr Eagle maintained wakefulness throughout all four of the test periods. On 29 August 2011, Mr Eagle ed CASA to advise it of the results of the MWT performed on 12 August 2011, attaching a copy of the results. On or about 7 October 2011, a consultant neurologist transmitted to CASA a letter stating that he disagreed entirely with the diagnosis of IH and that, in his opinion, Mr Eagle had no condition which restricted his entitlement to a Medical Certificate. That position was supported by a further medical opinion transmitted to CASA on 2 November Prior to October or November 2011, the information presented to CASA was to the effect that Mr Eagle did not meet the requisite medical standard, so that reg (2)(e)(ii) applied. The letters of October and November then indicated that reg (2)(e)(i) would apply. This then formed the basis for the consideration at the case conference and set the relevant timeframe. On 22 March 2012, CASA conducted a case conference with sleep consultants, including the medical specialists who had provided the abovementioned opinions. On 23 March 2012, CASA telephoned Mr Eagle and stated that it was CASA s intention to issue him with a Medical Certificate, subject to a routine medical examination. Mr Eagle subsequently presented for such a medical examination and, after a hiccup as to whether or not Mr Eagle had paid the fee, he was issued with a Medical Certificate on 12 April The pleaded unreasonable delay would seem to be in the following categories: (a) Between 15 December 2010 and 12 April 2012 that is, the period between the receipt of the letter by CASA confirming the diagnosis of IH and the issue of the Medical Certificate. I note that the date of 15 December 2010 is pleaded although the joint statement of asserted facts puts this date at 16 December I do not consider the day s difference to be material. (b) Between 5 May 2011 and 12 April 2012 that is, between the provision of a medical opinion that Mr Eagle s level of vigilance had been very good despite being without treatment and that the medical practitioner could see no reason why Mr Eagle should be prevented from flying from a sleep disorders point of view and the date of issue of the Medical Certificate. (c) Between 29 August 2011 and 12 April 2012 that is, from the date on which Mr Eagle advised CASA of the result of a medical examination where,

11 11 of 27 3/01/2015 5:08 PM without having taken any medicine, Mr Eagle achieved a perfect score, and the date of issue of the Medical Certificate. 29 August 2011 was the last date of actual testing of Mr Eagle either of his own volition or at CASA s request. (d) Between 2 November 2011 and 12 April 2012 that is, the period between CASA s receipt of the final medical opinions confirming that Mr Eagle did not necessarily have IH and that he was, in any event, able to perform normal duties, and the date of issue of the Medical Certificate. 21. It can be seen that none of those dates relate to an asserted satisfaction by CASA of Mr Eagle s medical fitness to resume or undertake duties. The pleading does not allege that CASA formed a view at any particular anterior time when Mr Eagle met the relevant requirements. Assuming that a duty of care exists, the alleged breaches of duty are said to flow only from the time taken by CASA in discharging the administrative process. 22. Taken from the pleading and the submissions, what is the delay which Mr Eagle asserts was unreasonable? 23. At the hearing, Mr Eagle accepted that his existing pleading did not make it clear whether he was saying that the unreasonable delay was before or after CASA formed the state of satisfaction that Mr Eagle had met the requirements of reg (2) of the CAS Regulations. The added fact, the allegation that he met the requirements of the CAS Regulations, was added by later amendment as noted above. 24. In submissions, Mr Eagle clarified that he asserted that there was a delay in forming the requisite level of satisfaction. In particular, he pointed to the time between November 2011 and March His counsel said that, on the matters known to Mr Eagle, he was not in a position to plead that a state of satisfaction was actually formed earlier which did not, over a period of time, result in the issuing of a licence or the Medical Certificate. Mr Eagle seems to accept that an examination of the chronology indicates that the delay of which he complains was prior to the formation of the satisfaction by CASA as to his medical condition and the effect that any such condition would have on his flying. He recognises that there was no delay in notification after the case conference, as that notification took place only a day later. The delay relied upon seems to be between the receipt of the final medical opinion forwarded by Mr Eagle on 2 November 2011 and the conduct of the case conference on 22 March This leaves open the question whether the case conference was the trigger for the issuing of a licence, or the trigger for the forming of the requisite satisfaction. Mr Eagle contends that there is no relevant difference between forming a state of satisfaction but not proceeding to issue the licence and delaying the formation of the satisfaction, if no step was taken to enable CASA to come to that state of mind. That is, he says that from the perspective of the administrative process, there is no difference, because if CASA took no step actually to come to the satisfaction, it does not matter whether CASA could have issued the Medical Certificate if it formed it earlier. He contends that when attention is given to the substance of a decision-making process, and the substance of its effect on Mr Eagle, there is no relevant difference. 26. At the outset, I note that there is no allegation of any dishonesty or lack of good faith in the actions of CASA, nor is there a suggestion of a denial of procedural fairness. In my view, from the chronology, the logic is inescapable that in view of the medical history and various medical opinions, CASA did not come to a decision or form a state of satisfaction prior to receipt of the letters of 7 October 2011 and 2 November It then convened a case conference with sleep consultants and medical experts on 22 March The conclusion that is to be drawn is that CASA formed its state of satisfaction as to Mr Eagle s fitness to receive a Medical Certificate during or immediately after that case conference. The issuing of the Medical Certificate occurred immediately thereafter. From the chronology, the trigger was the set of letters from Mr Eagle s medical experts in October and November 2011 to the effect that he did not suffer from IH. Mr Eagle does not explain what steps CASA should have taken prior to November 2011 in light of his own medical evidence as forwarded to CASA. Prior to that time, the medical evidence indicated that Mr Eagle suffered from IH.

12 12 of 27 3/01/2015 5:08 PM UNAVAILABLE CAUSES OF ACTION 28. CASA submits that Mr Eagle can have no cause of action in negligence for mere administrative delay. CASA acknowledges that in certain circumstances an administrative delay might give rise to a cause of action in misfeasance in public office, giving the example of an officer who dropped [the application] in the out tray [and] did nothing about it for six months but submits that this is not even in cooee of what is alleged in the present case. 29. Mr Eagle seems to accept this proposition but says that he has no alternative route to his present pleading. Firstly, a case of misfeasance in public office is not available because he does not allege a deliberate maladroit attitude by CASA, which would involve CASA wanting to cause Mr Eagle harm, or not caring whether it would cause harm in a deliberate, conscious and malevolent way. Mr Eagle acknowledged that he couldn t even possibly make that claim here. Secondly, an appeal to the Administrative Appeals Tribunal (AAT) is not available, he submits, despite s 31 of the CA Act which gives a person a right to apply to the AAT, because there is no reviewable decision to be challenged, nor has there been some deemed refusal. Mr Eagle submits that the fact that s 31 is not enlivened, and an AAT appeal unavailable, puts him in a vulnerable position sufficient to meet the test for the establishment of a duty at common law for such a refusal. 30. There is no dispute that the decisions made, proposed to be made or required to be made by CASA, are judicially reviewable under the Adminstrative Decisions Judicial Review Act 1975 (Cth). DID CASA OWE THE ALLEGED DUTY OF CARE TO MR EAGLE? 31. Mr Eagle contends that CASA had a statutory duty to him to issue a Medical Certificate if he met the requirements of regulation (2). CASA has complied with that duty as the Medical Certificate was issued. CASA is required to reach a state of satisfaction before it issues a Medical Certificate. There is no allegation that CASA acted contrary to this obligation. That is, Mr Eagle is not alleging a total failure on CASA s part. 32. Mr Eagle alleges a statutory duty and a common law duty, each said to include a duty to issue the Medical Certificate without unreasonable delay. This statutory duty is said to arise by implication. Each alleged duty imports the same considerations in order to determine whether it exists in the context of CASA s duties under the CA Act and CAS Regulations. Submissions on statutory duty of care 33. CASA says that any such statutory duty is inconsistent with its paramount obligation only to exercise its powers and functions in the public interest. CASA submits that: There is no obligation under the CAS Regulations for CASA to complete its consideration of an application made to it under regulation within any specific time frame. The exercise of the power to issue a certificate under regulation is one which involves the exercise of a judgment as to whether an applicant meets the prescribed requirements for the issue of a particular certification. The power exercised by CASA is not for the benefit of either CASA or the applicant but for the safety of the public generally. 34. That is, CASA says, no statutory duty such as that alleged by Mr Eagle exists at law. It submits that, similarly, no common law duty exists as alleged.

13 13 of 27 3/01/2015 5:08 PM 35. Mr Eagle also seems to rely on the fact that CASA initially said in December 2010 that it would give him 30 days to provide information as to his condition. He contends that this amounts to a recognition by CASA that it was under an obligation to him to act expeditiously in regard to his application. He submits that it contradicts any submission that CASA was under no obligation with respect to a timeframe or did not owe any duty. However, this point was not clearly made, in that Mr Eagle said that it did not definitively apply but was certainly part of the picture. Mr Eagle s submissions on the existence of a common law duty of care 36. Mr Eagle accepts that a statutory duty does not necessarily or automatically give rise to a common law duty and says that it is necessary to take into account matters such as consistency with the statute and the vulnerability of the applicant. 37. CASA does not accept that extraneous matters, such as the applicant s vulnerability, are relevant. CASA makes clear its submission that even if, factually, it could be shown that there had been an unreasonable delay, Mr Eagle still has no reasonable prospect of success because there is no common law duty in the exercise of CASA s statutory duty such as that exercised in the present case, nor is there an implication in the CA Act that a duty arises. 38. Basically, Mr Eagle s allegation seems to be that there was a common law duty to form a state of satisfaction, which CASA was obliged to do by the CA Act, without unreasonable delay. Mr Eagle submits that the common law duty was not a general duty to look after his interests but based on the specific statutory duty imposed. That is: There was a duty to issue the Medical Certificate in certain circumstances; There was a statutory duty to engage in that process or conduct without unreasonable delay; and Because of the statutory duty and also because of the other circumstances which are pleaded, there was a common law duty not to engage in unreasonable delay. 39. Mr Eagle confirms that he does not allege a duty not to discharge a statutory obligation negligently as in previously decided cases but rather a duty not to carry out a statutory duty with unreasonable delay. That is, Mr Eagle says that a duty of care can be exercised compatibly with CASA s statutory powers and that this is not precluded by the principles as stated in previous authorities. 40. Mr Eagle submits that in order to find that there was no common law duty of care, the relevant test is one of inconsistency or irreconcilability between duties and interests. He submits that it would need to be determined that the statutory duty and the pleaded common law duty are actually irreconcilable, whereas in the present case there is no such situation. 41. Mr Eagle submits further that even if the test as to irreconcilability espoused by the High Court in Sullivan were applied (as discussed at [48] below), a conclusion of irreconciliability could not be made. This is because, first, there is no prima facie or logical reason why avoiding unreasonable delay is irreconcilable with the interests of those whom the power was designed to protect, that is, the general public. Secondly, the delay is not the result of the proper pursuit of CASA s statutory duties and responsibilities; it is not by reason of CASA s assertive pursuit of a careful, deliberative process. Rather, Mr Eagle says, the delay is unreasonable because it is inconsistent with CASA s proper pursuit of its responsibilities. That is, Mr Eagle draws a distinction between activity and inactivity. Mr Eagle does not allege that CASA had a duty to act expeditiously or quickly, or even without delay, but rather to act without unreasonable delay. Authorities 42. In Avenhouse v Hornsby Shire Council (1988) 44 NSWLR 1 at (Avenhouse), Sheller JA stated that the use of shall, in the context of an

14 14 of 27 3/01/2015 5:08 PM obligation imposed upon a body, imposed a statutory duty that carried with it by implication a duty to perform it within a reasonable time. His Honour referred to Stovin v Wise [1996] UKHL 15; [1996] AC 923 (Stovin) at , where Lord Hoffman (with whom Lord Goff and Lord Jauncey agreed) remarked that where a public authority is under a statutory or common law duty to provide a service to the public, a member of the public who suffered loss because the service was not provided would have a cause of action for breach of statutory duty. 43. In Avenhouse, Sheller JA expressed a reservation as to whether a common law duty of care would be superimposed on a statutory duty to perform within a reasonable time. Such a reservation was also expressed by Lord Hoffman in Stovin at 952, who considered that a person might have a cause of action for negligence at common law, adding that whether a statutory duty gives rise to a private cause of action is a matter of construction, requiring an examination of the policy of the statute to decide whether it was intended to confer a right to compensation for breach. 44. Mr Eagle s submissions as to whether he relies on Avenhouse to support the existence of a common law duty could be described as equivocal. 45. In Polar Aviation Pty Ltd v Civil Aviation Safety Authority (No 4) (2012) 203 FCR 293 (Polar No 4) Kenny J concluded at 312 that the duty of care there alleged, being to take reasonable care not to harm the applicants and others in the same class, could not be reconciled on any practical basis with CASA s overarching obligations to make air navigation safety its most important consideration in performing its functions and exercising its statutory powers. In coming to that conclusion Kenny J distinguished the case before her from Repacholi Aviation Pty Ltd v Civil Aviation Safety Authority [2009] FCA 1487; (2009) 263 ALR 93 (Repacholi) (discussed below at [47]). Her Honour concluded that the pleading alleged a duty of care at an unsatisfactory level of generality which was fatal, because such a general duty of care was inconsistent with the statutory régime and due exercise of CASA s powers under the Act (at 308). On appeal (Polar Aviation Pty Ltd v Civil Aviation Safety Authority (2012) 203 FCR 325), the Full Court noted (at 341) that the imposition of a duty of care could lead CASA and its officers to act defensively, contrary to the primary importance placed on air safety navigation. The Full Court dismissed the appeal but noted (at 343) that Kenny J did not hold that a duty of care in the exercise of CASA s statutory powers was absolutely precluded, or that such a duty existed but that CASA had immunity. To the contrary, the Full Court observed that while her Honour s reasons may pose a significant hurdle to the existence of any such duty of care, her Honour held only that the duty of care as pleaded did not exist. 46. In Repacholi, the pleading broadly alleged that in exercising its powers and functions, CASA had a common law duty of care which required it to comply with the legislative and regulatory scheme so as to ensure that its actions did not cause economic harm to entities whose conduct it regulated. Justice McKerracher noted at 124 that in Sutherland Shire Council and Heyman [1985] HCA 41; (1985) 157 CLR 424 at 458-9, Mason J (as his Honour then was) had stated that it was well settled that a public authority may be subject to a common law duty of care when it exercises a statutory power or performs a statutory duty. Citing that and other authority, McKerracher J concluded at 127 that it was not possible to conclude that a claim in negligence was not open, as there was nothing in principle in the pleading which would have rendered the cause of action as one which should have been struck out. On that basis his Honour declined to strike out the plea in negligence. 47. Justice McKerracher then considered an amended pleading in Repacholi Aviation Pty Ltd v Civil Aviation Safety Authority (No 2) [2012] FCA 1297 (Repacholi No 2). His Honour noted that any consideration of an alleged duty owed by CASA to the applicants required attention to be focussed on the statutory provisions under which CASA is required to exercise its powers and functions. CASA there submitted, and his Honour accepted, that the CA Act establishes a statutory scheme for maintaining, enhancing and promoting the safety of civil aviation (at [10]). Justice McKerracher observed that at the heart of the debate was the question of whether in the pleaded circumstances CASA could have a duty of care as pleaded, or substantially similar to the duty pleaded. The applicants argued that the uncertainty concerning the law governing actions in negligence against public authorities required CASA s summary judgment application to be dismissed (at [41]). Again, McKerracher J stated that he was not persuaded that there could be no common law duty of care (at [51]) and that the real question was whether CASA could satisfy his Honour that on the pleaded facts, taking into account the evidence of inquiries made and responses given, the applicants had no reasonable prospect of successfully

15 15 of 27 3/01/2015 5:08 PM prosecuting the proceeding. 48. His Honour turned to Stuart v Kirkland-Veenstra [2009] HCA 15; (2009) 237 CLR 215 at 254 where Gummow, Hayne and Heydon JJ observed that the existence or otherwise of a common law duty of care owed by a statutory authority turns on a close examination of the terms, scope and purpose of the relevant statutory regime, such that there are sufficient characteristics answering the criteria for intervention by the tort of negligence. In Sullivan v Moody (2001) 207 CLR 562 (Sullivan), the High Court said (at 582) that 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 are charged with the responsibility of exercising powers in the public interest, the law would not ordinarily subject them to a duty to have regard to the interests of another class of persons if that would impose upon the authority conflicting claims or obligations. 49. Such a consideration had, as McKerracher J noted, led Siopis J to conclude in Fernando v Commonwealth [2010] FCA 753; (2010) 188 FCR 188 (Fernando) that it is a fundamental principle that the discharge of a public duty honestly and in good faith protects the decision maker (relying on W v Home Office [1997] Imm AR 302 at per Lord Woolf MR with whom Thorpe and Waller LJJ agreed (W v Home Office)). Justice McKerracher noted that CASA s power to regulate civil aviation under the Act are par excellence... to be exercised in the public interest, the characterisation adopted by Siopis J in Fernando where his Honour was considering the power to cancel a visa under the Migration Act 1958 (Cth) on character grounds. 50. Justice McKerracher turned to Polar No 4 and noted Kenny J s observation that CASA was subject to a statutory régime which had as its main aim maintaining, enhancing and promoting the safety of civil aviation, which makes air navigation safety the paramount concern (at [65]). Justice McKerracher noted that neither he nor Kenny J had said that a duty of care could never exist but that the duty as pleaded before him did not exist and that there was no requisite duty of care to make inquiries as alleged in that case. In particular, his Honour accepted the submission that the exercise of the power in Repacholi and Repacholi No 2 was one within CASA s judgment. It was not a power to be exercised for the benefit of either the regulator or the person to be affected by it, but for the safety of the public generally (at [63]). Consideration Statutory duty 51. It is not in dispute that the statutory scheme established by the CA Act has as its primary purpose, and that CASA has as its primary function, the establishment of a regulatory framework for maintaining, enhancing and promoting the safety of civil aviation. One of the means of bringing about this result is the issue of certificates, licences, registrations and permits. Section 9A(1) states that in exercising its powers and performing its functions, CASA must regard the safety of air navigation as the most important consideration. This does not directly concern the timing of the exercise of CASA s powers and functions. There is no express statutory requirement as to the timing of the issue of certifications. 52. The statutory duty was to determine whether Mr Eagle complied with the requirements in either subregulation (e)(i) or (e)(ii) of reg (2). This involved CASA coming to a state of satisfaction that those requirements were met and that the considerations of s 9A of the CA Act were taken into consideration in that determination. Mr Eagle maintains that the statutory duty was to issue a Medical Certificate without unreasonable delay. It is not alleged that CASA had formed a state of satisfaction that Mr Eagle met the statutory requirements at a particular time and then delayed. Rather, it is alleged that from one of three alternative dates, CASA took an unreasonable time to make the decision, being the administrative decision to issue the Medical Certificate. That breach is said to have caused Mr Eagle loss and damage being, essentially, a loss of income from his employment and depletion of paid sick leave.

16 16 of 27 3/01/2015 5:08 PM 53. At the relevant times prior to November 2011, it was accepted that Mr Eagle suffered from a medical condition that required CASA to consider the application of s 9A and reg (2)(e)(ii). 54. By a combination of reg (2)(e) and reg , if a person has applied for an authorisation, including a Medical Certificate, CASA may grant the authorisation only if the person meets the prescribed requirements under that provision, including the requirement that the authorisation would not be likely to have an adverse effect on the safety of air navigation. This applies to subreg (2)(e)(i) and endorses the specific requirement in subreg (2)(e)(ii). In accordance with reg , a condition is safety-relevant if it is likely to reduce the ability of the person to exercise the possible actions conferred by the licence. It is not in dispute that IH is such a condition. At the relevant times prior to November 2011, it was accepted that Mr Eagle suffered from a medical condition that required CASA to consider the application of s 9A of subreg (2)(e)(ii). The statutory duty was to determine whether Mr Eagle complied with the requirements in either subregulation (e)(i) or (e)(ii) of reg (2). This involved CASA coming to a state of satisfaction that those requirements were met and that the considerations of s 9A of the CA Act and of reg were taken into consideration in that determination. 55. CASA submits that, in the circumstances of Mr Eagle s history and medical opinions, the mere receipt of a clinical opinion could not be considered sufficient to provide the requisite satisfaction before Mr Eagle could be issued with a certification. Additionally, CASA submits, the proviso in reg , superimposed on reg (2) affects any implication, even if such were available on the authorities, that in the exercise of its statutory powers CASA owed Mr Eagle a duty to perform its duties within a reasonable time. Rather, CASA says, the context of the exercise of its powers as set out in the CA Act and the CAS Regulations argues against such a duty. I accept CASA s submissions. In exercising its powers, CASA is bound by the considerations set out in the CA Act and the CAS Regulations. The implied duty as alleged by Mr Eagle, owed to him as an applicant, to issue a Medical Certificate without unreasonable delay, is inconsistent with CASA s statutory obligations which require it to regard the safety of air navigation as the most important consideration and to issue a Medical Certificate only if it would not be likely to have an adverse effect on the safety of air navigation. As Kenny J concluded in Polar No 4, these competing duties cannot be reconciled on any practical basis. 56. The alleged implied breach of statutory duty could not arise if it was in conflict with the express statutory duty imposed by the CA Act and CAS Regulations. For the reasons set out below in respect of the alleged common law duty of care, the general allegation in the statement of claim that CASA had a statutory duty to Mr Eagle to issue with a Medical Certificate without unreasonable delay has not been established. 57. Even if the statutory duty carried with it the duty to act without unreasonable delay, in circumstances where CASA was acting on the receipt of medical information from Mr Eagle and where it is not alleged that CASA failed to act proactively with respect to his medical condition, Mr Eagle has not alleged or established the basis of a case of breach of the alleged statutory duty to issue the Medical Certificate without unreasonable delay. Once CASA was put into the position of the receipt of relevant information, it convened the case conference and then issued the Medical Certificate. There is no basis pleaded on which to conclude that the time between the receipt of the 2 November 2011 letter and the case conference on 22 March 2012 constituted an unreasonable delay in the process of CASA s fulfilment of its statutory duties. Common law duty 58. Following Repacholi, Repacholi No 2 and Polar No 4, there may be a common law duty of care owed by CASA in some circumstances but, in the exercise of power and judgment under the CA Act in respect of the maintaining, enhancing and promoting the safety of civil aviation, CASA acts for safety of the public generally and not for the benefit of the person affected by that exercise. 59. Accordingly, to the extent that Mr Eagle alleges that CASA owed him a general duty to take reasonable steps in the exercise of its relevant

17 17 of 27 3/01/2015 5:08 PM statutory powers to ensure that he did not suffer any economic loss, such a cause of action is not established. To the extent that the alleged duty is confined to a specific duty not to delay unreasonably for Mr Eagle s private interests, such a duty would not be compatible with the other duties which CASA owed, specifically the statutory imperative to place air safety first in the public interest. The private interests of persons in the position of Mr Eagle may commonly be inconsistent with the statutory imperative to place air safety first. If the proper pursuit of CASA s duties and responsibilities resulted in actual or perceived delay in the making of a favourable decision for a particular applicant, being the medical certification by reason of its pursuit of a deliberative process, there can be no relevant duty to ensure that the process is attended to expeditiously in order to satisfy the interest of an applicant in obtaining medical certification where CASA was required to satisfy itself that the statutory requirements of reg read with reg had been met. 60. Further, the recognition of such a cause of action, entailing an assessment of what may constitute unreasonable delay would be likely to divert the decision maker from his or her duties, contrary to the interest of the general public s interest (Fernando). This state of affairs would not be conducive to an exercise of power in which air safety navigation was the most important consideration (W v Home Office per Lord Woolf). The distinction that Mr Eagle seeks to draw between a duty to act quickly, which he does not allege, and a duty to act without unreasonable delay, does not avoid this difficulty. Indeed, it exemplifies it. In the present case, Mr Eagle does not allege that CASA should have acted in any particular way. He seems to imply that CASA should have acted immediately on his changed medical opinion without further consideration or factual material. If such a duty were found, in light of the history of the matter, it would have been inconsistent with the governing mandate. CONCLUSION 61. The parties do not dispute that the question, whether a duty of care of the scope or content for which the applicant contends exists, is a proper question to be determined on a summary dismissal application. 62. There is no real dispute between the parties as to the principles relevant to applications for striking out a pleading or for summary disposition, subject to Mr Eagle s submission, which I accept, that care must be taken where the allegation is that, as a proposition of law based upon existing authority, no cause of action is available. 63. The cause of action alleged, that CASA owed to Mr Eagle a general duty of care to take reasonable steps in the exercise of its statutory powers to ensure that he did not suffer economic loss, is not available. The specific duty alleged is incompatible with CASA s statutory duties. 64. I agree with CASA s submissions, for the reasons expressed above. 65. Rule 16.21(1)(e) of the Rules provides that a party may apply to the Court for an order that all or part of a pleading be struck out on the ground that the pleading fails to disclose a reasonable cause of action. I consider that the pleading does not disclose a reasonable cause of action and should be struck out in accordance with rule 16.21(1)(e) of the Rules. Further, I consider that as there is no reasonable cause of action available to Mr Eagle, there would be no utility in granting leave to replead. In light of my conclusion that no reasonable cause of action is available to Mr Eagle, it then follows that the proceedings should be dismissed pursuant to s 31A of the Federal Court Act and rule 26.01(1)(c) of the Rules and that Mr Eagle should pay CASA s costs. I certify that the preceding sixty-five (65) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice

18 18 of 27 3/01/2015 5:08 PM Bennett. Associate: Dated: 18 September 2014

19 19 of 27 3/01/2015 5:08 PM

20 20 of 27 3/01/2015 5:08 PM

21 21 of 27 3/01/2015 5:08 PM

22 22 of 27 3/01/2015 5:08 PM

23 23 of 27 3/01/2015 5:08 PM

24 24 of 27 3/01/2015 5:08 PM

25 25 of 27 3/01/2015 5:08 PM

26 26 of 27 3/01/2015 5:08 PM

27 27 of 27 3/01/2015 5:08 PM AustLII: Copyright Policy Disclaimers Privacy Policy Feedback URL: