Aerolink Air Services Pty Ltd and Civil Aviation Safety Authority

[2004] AATA 1288

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2004] AATA 1288

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N2003/985

GENERAL ADMINISTRATIVE DIVISION		)
Re		AEROLINK AIR SERVICES PTY LTD

Applicant

And CIVIL AVIATION SAFETY AUTHORITY

Respondent

DECISION

Tribunal Mr M D Allen, Senior Member

Date3 December 2004

PlaceSydney

Decision The decision under review is remitted to the Respondent with the direction that the Air Operator’s Certificate issued to the Applicant on 29 July 2004 is varied by deleting conditions one and two thereof and substituting in lieu thereof the one condition, namely:
“It is a condition of this AOC that Danny Ryan (Aviation Reference No.527619) does not perform any maintenance on an aircraft when that aircraft is being operated pursuant to this AOC."

.............................
   Senior Member

CATCHWORDS

CIVIL AVIATION – Applicant’s request for review of Respondent’s decision granting Air Operator’s Licence subject to two conditions – Respondent concerned about ability of Managing Director as a pilot – decision under review remitted to Respondent with direction to vary decision.

Civil Aviation Act 1988 s 28

Civil Aviation Regulations 1988 reg. 224, 226; Schedule 8

REASONS FOR DECISION

3 December 2004   Senior Member Mr M D Allen   

1.      Subsequent to proceedings in this Tribunal the Respondent granted to the Applicant on 29 July 2004 an Air Operator’s Certificate (AOC) authorising it to conduct charter operations subject to two conditions.

2.      As to previous proceedings in this Tribunal see the written reasons in Aerolink Air Services Pty Ltd and Civil Aviation Safety Authority (unreported No.N2003/985, on 24 December 2003) and the consent Direction of 16 January 2004.

3.      The two conditions imposed upon the AOC issued by the Respondent are:

(i) It is a condition of this AOC that Danny Ryan (Aviation Reference No.527619) does not occupy a control seat on any commercial flight authorised by this AOC. 

(ii) It is a condition of this AOC that Danny Ryan (Aviation Reference No.527619) does not perform any maintenance on aircraft operated pursuant to this AOC.

The Applicant sought review of those two conditions.

4.      It is clear from the reasons given for imposing the conditions which are set out in the Respondent’s letter to the Applicant of 29 July 2004 together with the Statement of Facts and Contentions dated 12 November 2004 filed by the Respondent in these current proceedings, that the Respondent has reservations about the actions and influence of Mr Ryan the Managing Director of the Applicant company.

5.      Those reservations may be summed up by stating that the Respondent doubts the ability of Mr Ryan as a pilot, considers that he will influence and direct the actions of any employed pilot while that pilot is flying with him in a way so as to compromise air safety and that he has an incomplete understanding of maintenance certification requirements for aircraft involved in commercial flying.

6.      In reviewing the conditions imposed upon the AOC issued to the Applicant I have had regard not only to the evidence adduced before me in the current proceedings but also to the evidence before me when I gave my Direction dated 24 December 2003 and the reasons therefor.

7. I do not accept that the first condition imposed is either necessary or appropriate. During these proceedings I was impressed by the evidence given by Mr Bartlett, the Chief Pilot of the Applicant and consider that he would not be likely to be overborne by Mr Ryan and would make it clear to his pilots that in accordance with Civil Aviation Regulations they, as pilot, had final authority as to the disposition of the aircraft.

8.      On a more practical level I accept the evidence of the Applicant’s witnesses that if a choice has to be made it is better to have a person with some flying experience in the right hand seat with an aircraft of dual controls than a passenger with no flying experience.

9.      If the Respondent still has reservations regarding Mr Ryan I see no reason why it could not take those reservations up directly with Mr Bartlett, and on his part why he could not issue specific and detailed instructions to his pilots as to their actions and reporting on the occasions that Mr Ryan is a passenger in any aircraft piloted by them.  I am also at a loss as to how the said condition could be policed.

10.     Different considerations apply to the second condition. In my original reasons at paragraph 74 I said:

“If, as alleged by the CASA inspectors, the aileron and rudder trim tabs had excessive movement, then this would in my view prima facie constitute a major defect in the aircraft. As such it was incumbent upon Mr Ryan to endorse the aircraft’s maintenance release to the effect that it was unairworthy and to have the defect remedied (see sub regulation 47(1) of the Civil Aviation Regulations). Instead, he took advice from other licensed aircraft maintenance engineers who did not themselves carry out accurate tests and endorsed the entry in the Maintenance Release as having been made in error. This demonstrates an attitude that Mr Ryan will, on occasions, not strictly adhere to directions or requirements in Civil Aviation Legislation.”

Further I did not accept Mr Ryan’s evidence as to who piloted aircraft VH-XMA on a flight from Moruya to Bankstown.

11.     During these proceedings the Respondent referred to a statement by a Mr Forbes. In previous proceedings I found that Mr Forbes was not a witness of credit and I note he is still engaged in litigation with the Applicant. I do not therefore accept his evidence.

12.     Notwithstanding the rejection of Mr Forbes’ evidence I adhere to my findings regarding Mr Ryan’s overriding of a maintenance defect entered by him and my further findings that he is at times impatient and resentful of what he regards as unhelpful restrictions upon his ability to operate his business.

13.     Further it seems to me that the restriction placed upon Mr Ryan is of no real moment. The Respondent has conceded that Mr Ryan can carry out what is referred to as Schedule 8 maintenance on his aircraft when flying as a private pilot. Further if any defects are noticed by Mr Ryan he can simply delegate the task of Schedule 8 maintenance to another pilot deemed by the Chief Pilot of the Applicant to be capable of carrying out that maintenance or employ a Licensed Aircraft Maintenance Engineer.

14.     The restriction imposes no hardship or undue expense upon the Applicant.

15.     The decision under review will be remitted to the Respondent with the direction that the AOC issued to the Applicant on 29 July 2004 is to be varied by deleting conditions one and two and substituting in lieu thereof the one condition namely:

“It is a condition of this AOC that Danny Ryan (Aviation Reference No.527619) does not perform any maintenance on an aircraft when that aircraft is being operated pursuant to this AOC.”   

I certify that the 15 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member M D Allen.

Signed:         (E.Pope)           .....................................................................................

Associate

Date/s of Hearing  25 November 2004
Date of Decision  3 December 2004
Counsel for the Applicant         Mr M Robinson
Solicitor for the Applicant          Staunton & Thompson
Counsel for the Respondent     Mr I Harvey
Solicitor for the Respondent     CASA Office of Legal Counsel