Case: Briginshaw v Briginshaw [1938] HCA 34 ; (1938) 60 CLR 336
Outcome: discussed
The respondents nevertheless submitted that the facts necessary to induce the state of mind (reasonable grounds) must be established on the balance of probabilities. However, as soon as evidence is adduced that shows that on the balance of probabilities there was not a serious and imminent risk to air safety, then the evidentiary burden shifts back to the applicant. The respondents also submitted that the well-known principles in Briginshaw v Briginshaw [1938] HCA 34 ; (1938) 60 CLR 336 (' Briginshaw ') at 361-3 are applicable. 24 Although in the present case there was time for a full investigation to take place, ordinarily the legislature's evident contemplation was that the Court will have the task of forming its judgment on incomplete materials. Thus a reasonably sanguine view must be taken of the way in which reasonable people might differ in their approach to matters. So, even if the Court took the view that a serious and imminent risk to air safety were not affirmatively proven on the balance of probabilities, in my opinion the Court nevertheless should be cautious, if there be some evidence of relevant matters for concern, before concluding that there is no reasonable ground for belief. 62 As to the ease with which the Court should be satisfied of matters adverse to them, the respondents submitted that, given the seriousness of the consequences for their reputation and livelihood of adverse findings, the evidentiary principles in Briginshaw at 361-3 are applicable. I disagree. The proceedings are primarily protective of the public, notwithstanding that fairness to impugned authorisation holders is an important part of the process. Further, any adverse finding that the Court might make is provisional only: it would merely assert that there are reasonable grounds for believing that some conduct had been in contravention of the statutory requirement. It would be inconsistent with the statutory commands to the Court to consider 'reasonable grounds to believe' and to give safety the primary emphasis to require that the Court only act on proofs which are not 'inexact', testimony which is not 'indefinite' and inferences which are not 'indirect' (see Briginshaw at 362). 63 Mr Boatman was in his sixties, and an extremely well-qualified and experienced pilot in relation to bush flying, including in relation to the use of narrow and curved runways. He had over 12 000 hours of flying experience, mostly in light single-engine aircraft such as Cessnas, accumulated over a period of 40-odd years. He had been to Innamincka and other like remote places before. He had many years, and thousands of hours of experience in instructing trainee pilots and licensed pilots in advanced safe handling techniques. For 14 years he had conducted an advanced safe handling course, training pilots in relation to using airstrips with difficult approaches, upslopes, downslopes and undulations, including landings and take-offs on curved strips, and using strips narrower than the road at Innamincka. He had, among other things, at the request of a Papua New Guinea commercial airline operator, trained some 50 pilots for operations in the notoriously difficult airstrips and conditions there. 64 Mr Boatman had also trained Ms Kennedy in such specialised techniques including take-offs and landings into strips much more difficult, in Mr Boatman's opinion, than would be the road at Innamincka. Ms Kennedy had some four years' flying experience, including 'reasonable experience flying in the outback and in respect of operations from unmade surfaces and marginal areas'.