Agricultural & General Aviation Pty Ltd v Aerodata Holdings Pty Ltd

[2003] HCATrans 274

[2003] HCATrans 274

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Perth  No P43 of 2002

B e t w e e n -

AGRICULTURAL & GENERAL AVIATION PTY LTD

Applicant

and

AERODATA HOLDINGS PTY LTD

First Respondent

FAYE SUSANNE KIMM MICKELBERG

Second Respondent

Application for special leave to appeal

KIRBY J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

FROM PERTH BY VIDEO LINK TO CANBERRA

ON FRIDAY, 8 AUGUST 2003, AT 12.39 PM

Copyright in the High Court of Australia

__________________

MR R.J.L. McCORMACK:   If it please your Honours, I appear for the applicant.  (instructed by Srdarov Richards Burton) 

MR M.J. McCUSKER, QC:   If it please your Honours, I appear with MR J.J. EDELMAN for the second respondent.  (instructed by Lawton Gillon) 

KIRBY J:   I have a certificate from the Deputy Registrar of the Court to the effect that no appearance has been filed by the first respondent.  An affidavit of service has been filed by the applicant, deposing to service of the application for special leave to appeal in accordance with Order 69A rule 4(3)(b) of the Rules of the High Court.  I have a copy of that affidavit, which is an affidavit of Josephine Mary Courtney sworn 5 August 2003.  I note that affidavit and the Court will place it with the papers.  Yes, Mr McCormack. 

MR McCORMACK:   I am indebted to your Honour.  Your Honours, there are two additional materials to those contained within the application book.  One is entitled “Applicant’s Supplementary Book of Reference Materials”.  That contains the notice of contention relied upon by the applicant in the court below, that is, the Full Court of the Supreme Court ‑ ‑ ‑

KIRBY J:   Yes, I have that. 

MR McCORMACK:   ‑ ‑ ‑ together with the statement of claim and defence of the relevant parties in the District Court.  Those documents are included because, although the application book includes the draft grounds of appeal, and the final ground of appeal refers to the notice of contention ‑ that being a matter dealt with by the Full Court – it was not included, inadvertently, amongst the papers, and needs to be had regard to for totality.

The second document is entitled “Applicant’s Chronology of Relevant Events” and I am indebted to my friends for permitting that to be put before the Court.  The reason it has been done, your Honours, is that this case concerns a considerable number of dates of significance, which are sprinkled throughout the reasons both of the trial judge and also the Full Court ‑ ‑ ‑

KIRBY J:   I am glad you have said that, because that was the overall impression I had in reading these papers, that it is very much a factual case, and that is not something that would normally attract our attention. 

MR McCORMACK:   I appreciate that, your Honour Justice Kirby, and I seek in my submissions to develop what is an argument based upon a general point of importance to do with the statutory and regulatory provisions which govern safe and efficient conduct of civil and commercial aircraft operation in Australia.  The question of causation, which certainly is involved in terms of the deceased and what occurred in terms of reliance, or non‑reliance, or entitlement to rely, upon a defective fuel gauge, was not in a context of a purely factual scenario that linked directly to and arose from mandatory, non‑delegable duties arising as a result of the Air Navigation Act, leading through to the Air Navigation Regulations, primarily, and as supported by the Air Navigation Orders. 

The issue has not been dealt with by the High Court.  The highest it has got to in terms of jurisdiction was a consideration of many of the relevant provisions in the case No 9 in volume 1 of the book of authorities relied upon, that is The Public Trustee and Others v The Commonwealth of Australia, with the reference there cited.  Your Honour Justice Kirby, as your Honour then sat as President of the Court of Appeal in New South Wales, had occasion to look at some of these regulations dealing with an appeal from the judgment of Justice Abadee in the court below. 

Justice Abadee, at the references which I have there given your Honours, in particular – the passages and the references given are best identified by the page numbers in the Butterworths unreported judgments.  They are quite short, but they do set an important background to the approach, as a matter of governing and guiding principle, courts approach the interpretation of the nature and scope of the duties of statutory creatures.  The deceased in this case was a pilot in command, being a statutory creature with particular non‑delegable duties and obligations, as well as the chief pilot. 

The pages I refer to in case 9, being the judgment of Justice Abadee, upheld on appeal in the relevant sections – there were some minor factual issues – may best be found at pages 12 through to 16, and I will take your Honours to those specific paragraphs. 

KIRBY J:   I only dimly recall this. This was the case of the light aircraft at Sydney Airport that made a turn, and the issue was whether air traffic control should have sent round a TAA flight which was then coming in to land. Is that the case?

MR McCORMACK:   Yes, may it please Justice Kirby ‑ ‑ ‑

KIRBY J:   I remember it when I go past the runway at the point where the crash occurred.  Everyone on board was killed, in the small aircraft. 

MR McCORMACK:   Yes.  Criticism was raised of the pilot as to how he could or should have responded to air traffic control direction and there was an emergency ‑ ‑ ‑

KIRBY J:   He should have given a mayday message, as I remember it, and he did not.  That was the criticism. 

MR McCORMACK:   Yes, if it please your Honour, the matter of the statutory framework is dealt with – this is the only case that I have been able to find where there has been consideration of these relevant provisions.  Although one or two are not directly relevant, the bulk are.  If I could take your Honours firstly to page 13, where Justice Abadee starts dealing with the Air Navigation Regulations.  They are, as your Honours will appreciate from the papers, set in the context of the power arising under the Air Navigation Act. 

I might mention before going further with the Air Navigation Regulations that the Law Reform Commission has not looked at the question of air safety in Australia, and what are the rules and regulations which the statutory creatures, including operators, as well as the chief pilot responsible for maintenance and also pilots in command are to discharge. 

They are the critical issues, which go to the heart of where it is submitted that, with respect, the Full Court of the Supreme Court did not approach correctly, as a matter of governing and guiding principle of construction, the scope of operation of these regulations.  The essence is, at page 14 at the top line: 

Regulation 219 –

which is directly relevant to this case –

places primary responsibility for the operation and safety of the aircraft during flight on the pilot.  He cannot abdicate his responsibilities or shift his responsibilities to the air traffic controllers or others.  He cannot divest himself of his obligations under the regulation.  He/she cannot argue that his responsibilities as referred to have been removed by others, or that he/she has been relieved of them.  The pilot in command is directly responsible for the aircraft’s operation and safety, and appears to have final authority in relation to such. 

A further passage to that effect is lower down in the penultimate paragraph at page 14 under the heading “BC9402634 at 26” – I do not read that – to the top of page 15 commencing at about line 4, identifying the statutory creature of “pilot in command” and then proceeding through to the same extent but in more detail by reference to specific Air Navigation Regulations 225(1)(b), (c) and (g), and (g). 

The subject of the application concerns an error as well as a breach of statutory duty by a pilot in command who also wore the hat of chief pilot.  It comes down to this:  the pilot has total, ultimate, non‑delegable responsibility to ensure that an aircraft, before it is committed to flight, has an adequate supply of fuel for the intended flight and then to cover the margin of error, which often can be called upon in circumstances of circling airports, the statutory reserve of 45 minutes.

In the present case no flight plan was lodged.  The plane had been refuelled on the instruction, as the chronology shows, in the days immediately preceding the fateful flight on 27 February 1986 and the deceased, in operation as pilot of command, put the plane into a position where the fuel was exhausted and the plane crashed.  Now, planes can lose wheels, they can lose motors, they can lose wings.  Indeed, your Honour Justice Kirby made some mention in this case that planes are enormously robust in terms of the strict design criteria, but fuel falls into the most critical of ingredients of safe operation of any aircraft.

It is treated differently under the Regulations.  It is a mandatory non‑delegable duty that can only be satisfied.  There were a number of very experienced pilots at the trial before Judge O’Brien in the District Court and there is no contest or dispute that every pilot said with regard to this kind of analogue gauge, which is perhaps now 30 years ago as opposed to some of the more modern kinds of computer aided devices, no pilot – no prudent pilot relies on a fuel gauge to tell that pilot what fuel there is.

The standard rule is, you fill it up to the top because every pilot does know the size of the tank and they do know what goes into it.  In this present case, matters had reached a stage after the first maintenance release had been issued when – and there was – it is called “a fuel snag” if it please your Honours – where the pilot McNamara returning shortly before Christmas in 1985 noticed that the fuel gauge, an analogue gauge, was registering an incorrect amount in the sense that it was getting stuck at a certain point.

He noted that, as he is bound to do under Regulation 49C(1) of the Air Navigation Regulations and under Air Navigation Regulation 241 noted that on the maintenance release.  The maintenance release is the log book kept in the plane.  It is its permission to fly.  It is a statutory instrument.  Once noted, the plane, with that kind of defect, it is an impermissible unserviceability.  The result, as the Full Court correctly found – and if I could just briefly take your Honours to have that page open of Justice Steytler’s decision, with whom Chief Justice Malcolm and Justice Anderson agreed, may be found at application book 51 at paragraph 16.

KIRBY J:   Yes.

MR McCORMACK:   Your Honours will read that, in the second sentence:

It is common cause that this was a “major defect” which was not a “permissible unserviceability” for the purposes of the ANRs.  Consequently, SDO –

that is the call sign for the plane, if it please –

should not have been flown with this defect.

The learned trial judge also reached the same conclusion.  Now, at that moment, in the first service, when the first maintenance release was issued around Christmas time into early January – about 8 January 1986 – Chief Engineer Truscott, a licensed aircraft maintenance engineer, after having referred the fuel gauge problem from the noting on the maintenance release by Pilot McNamara, referred it to Ray Dickinson Electrics because it had to be dealt with by an electrician.

The report that came back from Mr Dickinson was, effectively, “I cannot fault the fuel gauge, but if there is a problem there, it is likely to be in the sender unit.”  The sender unit is a small but important electronic linkage point contained actually in the tank which emits an impulse through to the gauge, thus enabling it to record.  We submit that an intermittent fault is an impermissible unserviceability.  That is recorded there at page 51 in paragraph 16 as common cause.

I mention this because it can rightly be said that Mr Truscott was less than perfect in his attention, at that time.  He can be rightly criticised, as the court above did and classified it as negligence.  Whilst I do not go into that issue, I mention it to set the scene for what followed because this case has to be looked at closely in terms, with great respect to your Honours, of the chronology.

The fuel gauge was dealt with as I have indicated.  The plane was then released to Chief Pilot Mickelberg, the deceased.  It is common cause that Mr Mickelberg’s role as chief pilot was – and I have given your Honours the various references to what the role was, but your Honours may take it that it included all maintenance and service supervision.  Perhaps I could assist your Honours briefly and invite your attention to page 12 of the book at paragraphs 41 and 42.  Your Honours will there see this refers to the appointment of the deceased, initially on a casual basis and then as chief pilot. 

The submissions and summary of argument tell your Honours that the chief pilot is the ultimate authority who is in charge of pilots below such as, relevantly, Pilot McNamara and Pilot McCambridge.  I read at about four lines above 42 ‑ ‑ ‑

KIRBY J:   The deceased pilot was both the relevant pilot and the chief pilot?

MR McCORMACK:   If it please your Honour Justice Kirby, that is correct, and he had under his direct control two relevant pilots.  One was Pilot McNamara who, when regard is had – and if your Honours were kind enough to have to hand the chronology, the particularly relevant date – this is at page 2 under the dates, 11 to 14 January 1986.  There is no dispute about these dates or what occurred on these dates.  Your Honours will see that Pilot McNamara was informed by the deceased “that the fuel gauge was unserviceable, that the sender unit was at fault and that one was on order”.  This is a matter which is then picked up by Justice Steytler in his Honour’s decision. 

As can be seen from the page I have given your Honours, Pilot Mickelberg, the deceased, was in ultimate authority for all maintenance issues.  Ultimately, the chronology tracks through to early February, about three weeks before the fatal flight.  At that moment, the deceased, Pilot Mickelberg, requested Chief Engineer Truscott to issue a new maintenance release.  He was asked but did not provide the maintenance release.  At that moment, the plane should not have been presented to Chief Engineer Truscott; it should have been grounded as from 11 to 14 of January that year. 

That was the re-emergence of the fuel snag which was noted by his Honour Justice Steytler in paragraph 67 at page 65 of the book.  His Honour there identifies:

Mr Mickelberg’s failure to inform Mr Truscott of the re-emergence of the defect in the fuel gauge –

and so on.  I focus on the re-emergence.  That was a matter that the deceased, for whatever reason in whatever circumstances, resulted in the chief engineer being misled.  He did not know, and it is common cause he did not know, of the re-emergence.  The plane was presented to him with an impermissible unserviceability by the deceased well knowing, and on the facts was found to know, that that plane should not have been in the air.  His Honour Justice Steytler in the preceding pages particularly, if I could take your Honours’ attention to paragraph 59 at page 63, about halfway down:

Mr Mickelberg knew of the service which had been carried out on the aircraft prior to that release and it seems to me to be probable that he assumed that any fault in the fuel gauge had been repaired or at least that the fuel gauge was then regarded as serviceable.

That finding is speculation.  It ignores the fact that the deceased misled, for whatever reason and in whatever circumstances, Chief Engineer Truscott with the result that the document produced which is there referred to was false in a material respect.  It came out as a clear document and his Honour is here saying the deceased probably – and he earlier says in the previous page at page 62 paragraph 55 there was an entitlement in Mr Mickelberg – I hear the warning bells.  If it please your Honours, the essence ‑ ‑ ‑

KIRBY J:   If you have some important further points to make that you can make briefly, you should press on.

MR McCORMACK:   I am indebted to your Honours.  This is the heart of the complaint, that the Full Court did not apply the rigour of the statutory regime controlling safe operation through a chief pilot through to the deceased as pilot in command.  There is no basis to find that it was probable – there was no evidence to that effect.  More importantly, it flies in the face of the found fact that the deceased knew the gauge was defective.  He declined, for whatever reason, to inform the engineer, with the result that what Justice Steytler is referring to is a fundamentally flawed document known to the deceased.

KIRBY J:   I realise you say that, but ultimately the Full Court acted through Justice Steytler on the basis of the apportionment statute, did it not?

MR McCORMACK:   If it please the Court, applying the principles in Podrebersek which ‑ ‑ ‑

KIRBY J:   Yes, we know all about those.  They are generally laid down in cases where appellate courts have disturbed the decision, but the rule of restraint is unquestioned but the basis of the Full Court’s power was the apportionment statute in Western Australia, is that correct?

MR McCORMACK:   That is so.  Your Honours, I submit they could not rely upon it in the way that they did where the causa sine qua non of this crash was a direct result of the knowing, unreasonable conduct of the deceased.

KIRBY J:   I think you have made that very clear that that is your submission.  I think we understand that.  Is there anything that is additional to that that you need to say to us or not?

MR McCORMACK:   No, it is in the papers.  Unless there are any questions, your Honour.

KIRBY J:   Yes, we have read the papers.  Thank you very much, Mr McCormack.  Mr McCusker, what do you say in relation to the suggestion that there is raised by this case an important matter of principle relating to the Air Navigation Regulations?

MR McCUSKER:   Your Honour, we say that there is no such important question of principle raised.  The Full Court dealt with this matter quite correctly on the basis that it was a purely factual question and a question of apportionment.  The Air Navigation Regulations were certainly referred to but simply they give the context in which the negligence is to be found.  The deceased was certainly the Chief Pilot and there was no issue as to the responsibilities that he had, but he had no authority to interfere in maintenance matters.  He was found by the trial judge, as observed in the Full Court, to be a pilot who was very conscious of safety matters and we are concerned with safety matters.

KIRBY J:   One would hope so, as the chief pilot, especially.

MR McCUSKER:   Of course, your Honour.

KIRBY J:   Or even just as an ordinary pilot.

MR McCUSKER:   It was not suggested, of course, that he knew – it was never put that he knew that the fuel gauge was faulty.  The negligence, which was apportioned against him as to 60 per cent, lay in apparently not

having done a further check of the fuel itself, either visual inspection – I should mention there, your Honours, that this particular plane had a fuel tank where visual inspection would not show whether it was full or empty unless it was within 19 litres of the top.

In other words, it had to be about 97 per cent full for a visual inspection to have been of any use, or, alternatively, the Full Court find or the judge below in fact find that it may have been that he either did not do a calculation – which can never be entirely accurate – a calculation back based on the time that the plane had already flown, or, if he did do the calculation, had made a miscalculation.

At the end of the day, your Honours, the Full Court approached it in this manner.  The issue of a maintenance release order was clearly negligence on the part of the applicant – that without the maintenance release order, the deceased would not have flown, could not have flown, the plane.  The issue of that maintenance release order was entirely the responsibility of the applicant.  It was not in the hands of the pilot, the deceased, at all. 

Nevertheless, although he could not have flown but for the issue of that clear maintenance release order, it was held that he was responsible in part, due to his negligence in apparently either miscalculating or not calculating the amount of fuel and relying simply upon the fuel gauge.  That, in the end, is a matter for the factual issue which went before the Full Court, and, in our respectful submission, it clearly was determined correctly.

KIRBY J:   Yes, we do not need any more assistance from you, Mr McCusker.

MR McCUSKER:   May it please the Court.

KIRBY J:   Do you have anything to say in reply to those submissions, Mr McCormack?

MR McCORMACK:   Yes, if it please.  On the knowledge issue, there was a specific finding at page 53, paragraph 24, of the application book, which was uncontested evidence that the deceased had been informed after the initial service that the fuel gauge was unserviceable.  In addition to that, and it is reflected in his Honour Justice Steytler’s finding, which can be found relevantly at page 64 of the application book, at paragraph 66, where his Honour finds in words:

He had plainly known of the defective fuel gauge –

and then goes on to say what the deceased did “despite this”.

A fundamental submission I make is that for his Honour Justice Steytler to have found the negligence of the deceased was in part the failure to inform the engineer of the re‑emergence shows a continuant knowledge from the 11^th to the 14^th of January, which was never lost by the deceased.  So that is relevant to when he approached the engineer for the issuance of the clear maintenance release, and that is where the misleading came in. 

In short, when one has regard to the references which I have given your Honours in relation to Justice Gummow’s discussion of the linkage between statutory regulations and obligations on statutory bodies ‑ here we have statutory creatures – the criteria to be applied is to be found within the four corners of the Act, and that is a matter of general importance.  Perhaps the question could be tested this way.  Is it correct to allow a pilot in command and a chief pilot to be in breach of a mandatory duty, yet not report properly to an engineer, thereby creating an unsafe state of affairs? 

KIRBY J:   That is one way to put it.  The other way to put it is – not that this condones what the chief pilot did – but, where this has occurred, is a court relieved from the obligation of investigating the facts and apportioning the liability according to all of the evidence, which Parliament has said is its duty in multiple negligence circumstances, by reason of the primary duty of the air pilot? 

You want to bump out anybody else’s liability, but surely, both by the common law and under the Air Navigation Regulations, everybody to do with planes has to be very careful ‑ everybody ‑ and you cannot say it is just the pilot.  It is everybody ‑ ground staff, ground crew, maintenance people and pilots.  The primary obligation obviously lies with the pilot, but you cannot thereby say, “Well, hang it, we do not worry about the rest of the people who have responsibilities”.  That cannot be the law, and I do not see that it is the law that the Air Navigation Regulations imposes.  It would be a very odd result.

MR McCORMACK:   If it please your Honours, the way the Full Court dealt with the matter was not by reference to the confines of the statute, but allowed and introduced polluting notions of the common law, without properly segregating the statutory environment which involved the three statutory participants, the chief engineer, the chief pilot and the pilot in command.  That is the point made by – and I rely upon it ‑ Justice Gummow in Crimmins Case, the reference I have given your Honours, at page 255, at paragraph 59, warning of those issues.  If it please, unless I can be of further assistance.

KIRBY J:   Yes, thank you very much, Mr McCormack. 

We are not convinced that any error has been shown in the judgment of the Full Court of the Supreme Court of Western Australia.  As we read the reasons of the Full Court, their Honours did not fail to give proper consideration to the stringent standards that are required of a pilot of an aircraft and chief pilot, both by virtue of the Air Navigation Regulations and the common law.

However, it still fell to the primary decision‑maker to assess the particular facts of the case.  Where more than one factor was established as a cause of the aircraft accident, the apportionment of liability in accordance with the statute still fell to be performed.  The Full Court had its own responsibility, in an appeal by way of rehearing, to assess the facts for itself.  Its conclusions on the facts were open to the Full Court, for the reasons that were given by Justice Steytler.

An appeal to this Court would not enjoy reasonable prospects of success.  Accordingly, special leave to appeal is refused and the applicant must pay the respondents’ costs.

Adjourn the Court now until next Tuesday, 12 August at 2.15 pm in Adelaide.

AT 1.09 PM THE MATTER WAS CONCLUDED