Albatross Helicopters Pty Ltd and Civil Aviation Safety Authority

[2015] AATA 276

Administrative Appeals Tribunal

ADMINISTRATIVE APPEALS TRIBUNAL             )

)        No: 2014/4203

General Administrative Division               )

Re: Albatross Helicopters Pty Ltd

Applicant

And: Civil Aviation Safety Authority

Respondent

DIRECTION

TRIBUNAL:             Senior Member Bernard J McCabe

DATE:   30 April 2015

PLACE:                  Brisbane (Heard in Darwin)

The Tribunal directs the Registrar, pursuant to subsection 43AA(1) of the Administrative Appeals Tribunal Act 1975, to alter the text of the decision in this application such that all references to “Mr Gormley” are replaced with “Mr Gumley”.

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Senior Member

[2015] AATA 276 

Division	GENERAL ADMINISTRATIVE DIVISION
File Number	2014/4203
Re	Albatross Helicopters Pty Ltd
APPLICANT
And	Civil Aviation Safety Authority
RESPONDENT

Decision

Tribunal	Senior Member Bernard J McCabe
Date	29 April 2015
Place	Brisbane (Heard in Darwin)

The Tribunal affirms the decision under review.

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Senior Member Bernard J McCabe 

CATCHWORDS

CIVIL AVIATION – application for Air Operator’s Certificate refused – no approved chief pilot – no power to issue certificate where key personnel requirement not met – fixed term of certificate not a reviewable decision – no jurisdiction to review length or duration of certificate – decision under review affirmed.

LEGISLATION

Administrative Appeals Tribunal Act 1975 (Cth) ss 41(2); 42D; 43(1)

Civil Aviation Act 1988 (Cth) ss 27(1); 28(1); 31(1)

CASES

White and Civil Aviation Safety Authority [2010] AATA 604

Hogan and Ors and Civil Aviation Safety Authority [2004] AATA 1090

REASONS FOR DECISION

29 April 2015 

1. The applicant in these proceedings is Albatross Helicopters Pty Ltd (“Albatross”).

   
   

   The company is part of a corporate group that includes North Australian

   
   

   Helicopters Pty Ltd (“NAH”). Both companies are controlled by Mr Milton Jones. Albatross was the holder of an Air Operator’s Certificate (AOC) issued under s 28 of the Civil Aviation Act 1988 (Cth) (“the Civil Aviation Act”). The AOC expired by effluxion of time on 31 July 2014. The Civil Aviation Safety Authority (CASA) declined to issue another AOC because Albatross did not employ a chief pilot approved by CASA at the time of the renewal application on 3 July 2014. (Albatross’s chief pilot resigned in

   
   

   April 2012 and the company has not undertaken flying operations since that occurred.) The adverse decision on the application was made and recorded in a notice dated

   
   

   28 July 2014.

2. Albatross asked the Tribunal to stay the operation of that decision on 14 August 2014. After a preliminary discussion at the interlocutory hearing of stay, Albatross decided not to persist with the request for orders under s 41(2) of the Administrative Appeals Tribunal Act 1975 (Cth) (“the AAT Act”). The application for review remained on foot, and proceeded to hearing in due course.

   Why did CASA decide not to issue the AOC?

3. CASA declined to issue a fresh AOC to Albatross when its old one lapsed because it did not have a chief pilot. Mr Jones explained how that came to pass in the course of his oral evidence at the hearing in Darwin. He also provided a statement (exhibit two). In his oral evidence he said the company had been operating for over twenty years but he acquired control approximately five years ago.

4. Mr Jones said he has overseen an investment program that has led to the upgrade of Albatross’s facilities. He said he wanted Albatross to adopt the same high standards that he applied at NAH. In his statement (exhibit two, p 2 at [7]), he explained Albatross’s AOC included an approval to conduct aerial agricultural operations which included helicopter spraying. That capacity made Albatross a valuable part of Mr Jones’s group since NAH’s AOC did not include an approval to conduct helicopter spraying operations.

5. Albatross did not have a chief pilot when the decision under review was made.

   
   

   The previous chief pilot had resigned on 10 April 2012. CASA was informed of the resignation at the time (exhibit one at p 7). Mr Jones advised CASA in that letter of his intention to appoint a new chief pilot in due course. He also acknowledged he understood Albatross was unable to operate under its own AOC until a replacement chief pilot was appointed. In the meantime, it was agreed with CASA that NAH could effectively take over those parts of the Albatross operation that NAH was authorised to conduct under its own AOC: exhibit two, p 3 at [13]; see also exhibit three, pp 2-3 at [12]-[15].

6. Mr Jones said he originally intended to appoint his brother-in-law, Mr Angus Mundell, to the role of chief pilot after the resignation of the incumbent in April 2012.

   
   

   But Mr Mundell was killed in an accident (exhibit two, p 2 at [11]). Mr Jones said he had difficulty locating other suitable candidates for the role, and there was no urgency given CASA appeared to be content with the role of NAH (exhibit two, p 3 at [15]).

   
   

   Mr Jones said he did not anticipate any problems when he received a reminder notice from CASA dated 20 May 2014 about the need to renew Albatross’s AOC.

   
   

   In his statement, he pointed out the reminder notice did not expressly say CASA would refuse to renew the AOC if Albatross did not have a chief pilot in place:

   
   

   exhibit two, pp 3-4 at [16].

7. Mr Jones said he had intended to nominate Mr Bill Watson as chief pilot. But Mr Watson was overseas in the days before the application for renewal was submitted. Mr Jones said he was unable to complete the paperwork in time. As a result, the chief pilot’s role remained unfilled when the application for renewal of the AOC was filed and considered by CASA: exhibit two, p 4 at [18].

8. CASA’s power to issue an AOC is contained in s 27(1) of the Civil Aviation Act.

   
   

   But that power is qualified by s 28(1) which provides “CASA must issue the AOC if, and only if” CASA is satisfied as to a number of matters (my emphasis added). Amongst other things, s 28(1)(b)(iv) requires that CASA be satisfied:

   key personnel in the organisation have appropriate experience in air operations to conduct or to carry out the AOC operations safely[.]

9. Section 28(3) defines the expression “key personnel” to include the head of the flying operations part of the organisation – that is, the chief pilot. CASA says it is unable to issue an AOC to an applicant that does not have a chief pilot. CASA is right. As I explained in White and Civil Aviation Safety Authority [2010] AATA 604 at [9]-[10]:

   The meaning of the legislation is reasonably clear. If CASA is satisfied as to the enumerated matters, it must issue an AOC. But I think the drafting of the legislation suggests the reverse is also true: if CASA is not satisfied that an organisation meets the criteria, CASA must not issue an AOC.

   It makes no difference whether that application is an original application for an AOC or a renewal application. Mr White pointed out that “renewed” AOCs have the same or a similar number. That does not matter. The Act does not distinguish between original and renewal applications for present purposes. CASA pointed out in its submissions that a “renewed AOC” is in reality a fresh AOC. That means the criteria must be satisfied at the time of the application.

   Is there any way around the problem?

10. Albatross is free to apply for a new AOC, but it is worried that would take a long time and be very expensive. Albatross would prefer to effectively “roll over” the recently expired approval. It should be said at once that CASA does not “roll over” existing approvals as part of this process: when one AOC expires, a fresh one is issued, as I explained in White (at [10]). It stands to reason that an applicant with a current AOC may find it easier to obtain a renewal because CASA is familiar with the applicant organisation’s people and operations. Mr Luke Gumley, the manager of CASA’s central region that includes the Northern Territory, accepted that proposition in his statement (exhibit three, p 1 at [7]). But Mr Gumley pointed out Albatross has not been operating under its own AOC for some time, so any advantage that might accrue as a result of continuity or familiarity would not necessarily be available in this case. He said CASA would need to take a closer look at Albatross’s operations in any event:
    exhibit three, pp 1-2 at [7]-[9].

11. Mr Gumley gave oral evidence at the hearing. He sounded a more reassuring note about the length of time and cost involved in obtaining a fresh AOC. He suggested it would take about three months to complete an assessment. He also agreed CASA had no particular concerns with Albatross and did not therefore anticipate undue delay in dealing with an application.

12. Albatross initially asked the Tribunal to consider using its power in s 41(2) of
    the AAT Act to stay the operation of the decision to refuse the AOC, but it was clear that argument was likely to be unproductive. At the hearing, the focus properly moved to the Tribunal’s powers under s 43(1) of the AAT Act. It is unclear how the reviewable decision – namely, CASA’s decision contained in the notice dated 28 July 2014 to refuse to (re)issue the AOC – could be changed to achieve an outcome that suits Albatross.
    I do not have the power to issue an AOC to Albatross in circumstances where it does not comply with the requirements in s 28 of the Civil Aviation Act. I cannot vary the reviewable decision to achieve that outcome, nor can I set the decision aside with a view to substituting a decision that the AOC be granted.

13. It might be formally possible to set the decision aside and remit it to CASA for reconsideration pursuant to s 43(1)(c)(ii) (or even remit the decision for reconsideration pursuant to s 42D) of the AAT Act with instructions that CASA give Albatross an opportunity to appoint a chief pilot, but – even if that course were open to me – it is unattractive given the evidence of Mr Gumley. Mr Gumley made it clear CASA would want the opportunity to take a closer look at Albatross’s operations before agreeing to issue a further AOC, given it has not operated since April 2012. That process will take some time, although it need not take a long time. It follows there is no particular advantage in remitting the decision under review.

14. Mr Ribbands suggested there is an alternative course open to me. He pointed out the Tribunal is able to exercise all the powers of the original decision-maker. Those powers include a power to fix a term for an AOC under s 27 of the Civil Aviation Act. If CASA can fix the term of an AOC, he argued, it could also decide to vary or extend it.
    He submitted CASA (or the Tribunal) could extend the life of the old AOC until Albatross is ready to obtain the fresh AOC. That would preserve the benefits of continuity.

15. I leave to one side Mr Gumley’s view that continuity would confer few advantages in this case. It seems to me there are two more fundamental problems with the applicant’s argument. Firstly, Albatross is not seeking review of a decision in relation to the old AOC. The reviewable decision is the decision not to issue a new approval. I do not have jurisdiction to vary or set aside a decision that is not before me. Secondly, the authorities suggest the Tribunal’s power does not extend to reviewing the term of an AOC.
    As Downes J and Air Marshal Gration explained in Hogan and Ors and Civil Aviation Safety Authority [2004] AATA 1090, the definition of reviewable decision in s 31(1) of the Civil Aviation Act includes:

    (a)a refusal to grant or issue, or a cancellation, suspension or variation of, a certificate, permission, permit or licence granted or issued under this Act or the regulations; or

    (b)the imposition or variation of a condition, or the cancellation, suspension or variation of an authorisation, contained in such a certificate, permission, permit or licence.

16. The Tribunal concluded the decision to impose (or, for that matter, vary) the term of an approval is entirely a matter for CASA. The Act does not provide for an applicant to seek a particular term, so that there can be no question of a refusal: at [15]. The Tribunal added the length of an AOC is not a condition of an AOC: at [17]. It follows the Tribunal does not have jurisdiction to consider the length or duration of an AOC.

    conclusion

17. It is unfortunate the applicant did not appoint a chief pilot before the old AOC expired, but the evidence of Mr Gumley suggests the application process was always going to be more onerous given Albatross has not operated for some time. The absence of a chief pilot means CASA had no choice but to refuse the application for renewal.
    I must therefore affirm the decision under review for the reasons I have given.

I certify that the preceding 17 (seventeen) paragraphs are a true copy of the reasons for the decision herein of Senior Member Bernard J McCabe.

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Dated 29 April 2015

Date of hearing	22 December 2014
Counsel for the Applicant	Mr J Ribbands
Solicitors for the Applicant	Maitland Lawyers
Advocate for the Respondent	Mr J Rule