AMT Helicopters Pty Ltd and Civil Aviation Safety Authority

[2006] AATA 314

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2006] AATA 314

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No Q2006/203

GENERAL ADMINISTRATIVE DIVISION		)
Re		AMT HELICOPTERS PTY LTD

Applicant

And CIVIL AVIATION SAFETY AUTHORITY

Respondent

DECISION TO GRANT STAY

Tribunal Senior Member B J McCabe

Date31 March 2006

PlaceBrisbane

THE TRIBUNAL ORDERS THAT:

1.The following decisions as detailed in the respondent’s letter of 24 March 2006:

·   Chief pilot approval;

·   Chief flying instructor approval;

·   Conduct of agricultural flying approval;

·   Agricultural pilot flight check approval;

·   Conduct of agricultural and operational flying training approval

are stayed pursuant to s 41 of the Administrative Appeals Tribunal Act 1975 until such time as the automatic stay provision in s 31A of the Civil Aviation Act 1998 expires in relation to the decision to cancel the Air Operator’s Certificate No. SQ 410142-14 and the decision to cancel the Flight Instructor (Helicopter) rating, Grade 1.

2.The application for a stay of the decision “Flight instructor rating renewal” as detailed in the respondent’s letter dated 24 March 2006 is adjourned until 4pm on 7 April 2006. Each party is at liberty to apply for earlier directions.

..........[Sgd]........

SENIOR MEMBER

CATCHWORDS

CIVIL AVIATION – application for stay of various decisions made by Civil Aviation Safety Authority – automatic stay provisions – stay power under the AAT Act – appropriateness of partial stay – application for review has merit – refusing to grant stay would have serious impact on applicant’s business – no immediate public safety concerns

Administrative Appeals Tribunal Act 1975 s 41

Civil Aviation Act 1988 s 31A, 31D

Civil Aviation Safety Authority v Hotop (2005) 145 FCR 232

Re Alexander and Migration Agents Registration Board (1995) 40 ALD 99

Re Griffiths Grif-Air Helicopters Pty Ltd and Civil Aviation Authority (1993) 31 ALD 380

REASONS FOR DECISION TO GRANT A STAY

31 March 2006 Senior Member B J McCabe

introduction

1.      Mr Myles Tomkins is the chief pilot of AMT Helicopters Pty Ltd. Mr Tomkins is also the managing director of the company. In addition to his chief pilot’s approval issued by CASA, he holds a number of other ratings. The Civil Aviation Safety Authority (CASA) informed Mr Tomkins by letter dated 24 March 2006 that CASA was cancelling those approvals and ratings. CASA says those cancellations (apart from the Flight Instructor (Helicopter) rating) took effect immediately. Mr Tomkins was informed in a separate letter of the same date that CASA would not renew his flight instructor rating. The rating is due to expire this afternoon. CASA has also cancelled the air operator’s certificate (AOC) of AMT.

2.      The applicants (Mr Thompson and AMT) promptly applied to the Tribunal to review each of the decisions. A question has arisen over whether the automatic stay provisions in the Civil Aviation Act 1988 (the CAA) apply to some of the decisions under review. The applicants have asked the Tribunal to order a stay pursuant to s 41(2) of the Administrative Appeals Tribunal Act 1975 of the decisions that have not been stayed under the CAA. The applicants have also asked the Tribunal to stay the decision not to renew Mr Tomkins’s flight instructor rating that is about to expire.

3.      The applicant contacted the Tribunal on 26 March 2006 to arrange an urgent hearing in relation to its stay application. I held a brief hearing that afternoon and decided to order a temporary stay of the decisions under the Administrative Appeals Tribunal Act 1975 until today to give CASA the opportunity to consider its response.

the material before the tribunal

4.      The Tribunal was provided with a copy of the letter dated 24 March 2006 setting out the cancellation decisions. The applicant filed an affidavit sworn by Kevin Raymond Bartlett, the applicant’s solicitor, and two affidavits sworn by Mr Tomkins.

5.      Mr Logan, SC represented the applicant. Mr Parkin represented CASA.

the decisions under review

6.      Mr Logan helpfully prepared a list of the decisions under review. Those decisions are:

In relation to Mr Tomkins:

1.    Chief pilot approval

§  “show cause” issued on 20 December 2005

2.    Chief flying instructor approval

§“show cause” issued on 23 September 2005

3.    Flight Instructor (Helicopter) rating, Grade 1

§“show cause” issued on 20 December 2005

4.    Conduct of agricultural flying training approval

§“show cause” issued on 23 September 2005

5.    Agricultural pilot flight check approval

§“show cause” issued on 20 December 2005

6.    Conduct of agricultural and operational flying training approval

§“show cause” issued on 20 December 2005

7.    Flight instructor rating renewal

§considered by CASA unnecessary to decide in light of other decisions of 24 March 2006 – deemed refusal to review.

In relation to AMT Helicopter Pty Ltd

8.    Air Operator’s Certificate No. SQ 410142-14

7. Of the eight decisions in question, Mr Logan opined that decisions 1 and 7 may not be subject to the automatic stay conferred pursuant to s 31A of the CAA. That provision automatically stays (for a period of five days, then for 90 days if an application for review is filed with the Tribunal) decisions that are subject to a requirement to issue a “show cause” notice before the decision is taken. Show cause notices were issued in relation to all of the decisions set out above save for the decision declining to review the flight instructor rating. Mr Logan concedes the regulations do not on their face appear to require a show cause notice to be issued prior to the decision about the chief pilot’s approval. He says there is doubt as to whether the automatic stay provision applies to those two decisions, and asks the Tribunal to eliminate the doubt by issuing a stay under s 41. Mr Parkin says the regulations do not require show cause notices in respect of any of the other decisions apart from the decision to cancel the Flight Instructor (Helicopter) approval and the AOC. He says in those circumstances decisions 1, 2, 4, 5, 6, and 7 (referred to above) all take effect in the absence of a stay under s 41.

8.      Without the benefit of more detailed argument, I am inclined to accept Mr Parkin’s interpretation of the wording of the regulations. As a result, I will assume decisions 1, 2, 4, 5, 6, and 7 are not subject to an automatic stay. The general principles applicable to stay orders under the Administrative Appeals Tribunal Act 1975 are the same whether or not there are two decisions or six. I therefore propose to deal with decisions 1, 2, 4, 5, and 6 together. I will deal with the decision to decline to renew the flight instructor rating separately because of the special issues that application raises.

the power to order a stay under s 41 of the administrative appeals tribunal act 1975

9. The stay power is set out in s 41(2). The provision reads:

The Tribunal may, on request being made, as prescribed, by a party to a proceeding before the Tribunal (in this section referred to as the relevant proceeding), if the Tribunal is of the opinion that it is desirable to do so after taking into account the interests of any persons who may be affected by the review, make such order or orders staying or otherwise affecting the operation or implementation of the decision to which the relevant proceeding relates or a part of that decision as the Tribunal considers appropriate for the purpose of securing the effectiveness of the hearing and determination of the application for review.

10.     It is obvious from the wording of the provision that the power to order a stay is not unlimited. As Siopis J explained in Civil Aviation Safety Authority v Hotop (2005) 145 FCR 232 at 240:

The powers conferred on the Tribunal by s 41(2) are to be exercised for the purpose of securing the effective hearing and determination of the review application.

11.     The Tribunal made the same point about the objective of the power in Re Alexander and Migration Agents Registration Board (1995) 40 ALD 99. It follows that I can only order a stay of a decision if I am satisfied it is necessary to ensure the Tribunal’s hearing of the issues in dispute will not be frustrated.

12.     The proper approach to stay applications was discussed in Re Griffiths Grif-Air Helicopters Pty Ltd and Civil Aviation Authority (1993) 31 ALD 380. Deputy President Forgie suggested (at 385) the Tribunal must consider at least the following matters:

• The prospects of success of the applications for review of the decisions;
• The hardship to the applicant and other parties affected by the decision if the stay orders are not made; and
• Whether public safety is likely to be imperilled if the stay orders are made.

13.     I propose to follow that approach in this case.

(i) prospects of success

14.     It is not necessary that I conduct a mini-trial of the issues to determine whether or not the applicant is likely to succeed at the hearing. That is just as well, because the evidence is still being collated (the s 37 documents have not been compiled as yet). But Mr Logan pointed out there are factual disputes between the parties. He pointed to the detailed responses to the show cause notices prepared on behalf of the applicants that were exhibited to Mr Bartlett’s affidavit. He said the applicants intended to contest the decisions. After perusing the material, I cannot conclude the applicants’ case is fanciful. There appears to be a genuine dispute between the parties that requires resolution. I accept the application for review has merit and deserves the consideration of the Tribunal.

(ii) hardship

15.     It is necessary to consider hardship to the applicants and to third parties if the decisions are not stayed pending a hearing. Mr Tomkins points out in his affidavit dated 30 March 2006 that AMT’s AOC requires the appointment of a chief pilot. If he is prevented from undertaking that role, Mr Tomkins says the company will be forced to close its business unless a new chief pilot could be found. He goes on to state his belief that there are few individuals in Australia who are qualified to act as chief pilot given the nature of the company’s business. He says those individuals are almost certainly employed elsewhere. He said it would take time to find a new pilot. Mr Parkin indicated CASA would be prepared to arrange an expedited examination of any applicant’s credentials – a process that could still take up to a month.

16.     Mr Tomkins says the business of AMT would be severely damaged if he could not continue in his role as chief pilot. He suggested the company “could not continue in its current form for any lengthy period.”

17.     Mr Parkin suggested CASA might see its way clear to agreeing that Mr Tomkins retain his chief pilot’s approval if he agreed not to continue as a flight instructor. Mr Parkin is understandably concerned that someone who is subject to question over safety issues should continue to teach prospective pilots. He suggested the company would not be harmed as much if it were forced to effectively suspend only part of its operations.

18.     Mr Logan objected to this proposal being introduced. He said the applicants had not been asked to consider this option, and he was therefore not in a position to lead evidence on the precise effect of the proposal. Even so, he insisted the business was not readily broken down into those different activities: it was one business, he insisted. In this regard I note Mr Tomkins’s affidavit asserts (at paragraph 15):

The ongoing viability of AMT depends primarily upon the income generated by flying training and other operations permitted under its AOC.

19.     I do not think the evidence is in a satisfactory state to enable me to assess whether a “partial stay” like that suggested by Mr Parkin would have the effect of preserving the business of the applicants. Mr Tomkins’s affidavit refers to four student pilots currently being trained, with further pilots beginning their training next month. There was no evidence as to what percentage of the company’s revenue is attributable to this line of business. The prominence of the references to those operations in the affidavit of Mr Tomkins suggests instruction is a significant source of revenue.

20.     As it stands, the evidence is clear that refusing a stay on all the decisions under review that have not been automatically stayed would have a serious impact on the business and on Mr Tomkins – so serious that the applicants might not be in a position to continue with their applications for review.

21.     Mr Tomkins also referred to hardship that would be occasioned to third parties, including:

·employees who would be laid off if air operations were shut down or even scaled back;

·customers who would be inconvenienced (and perhaps permanently lost to the business) as a result of service contracts being cancelled;

22.     Mr Parkin pointed out other operators would be able to employ anyone laid off, and service the customers of AMT. That may or may not be so, but – if it is so – it points to the damage done to the business of AMT if I do not order a stay.

(iii) public safety

23.     The third concern is the most important. The Tribunal should not order a stay if doing so would endanger the travelling public. It follows I must satisfy myself the applicants can safely continue to operate if given the benefit of a stay notwithstanding the fact that the various ratings and approvals and the AOC have been cancelled because CASA has safety concerns.

24.     Mr Tomkins referred in his affidavit to AMT’s excellent record of safety since 1987 when it commenced flying operations. He referred to one fatal accident involving an AMT aircraft but Mr Tomkins explained the aircraft had been hired to CASA at the time, and was being piloted by a CASA Flying Operations Inspector. I am not aware that fault in relation to that incident was attributed to AMT. Mr Tomkins also noted his own safety record was very good.

25. A number of the shortcomings alleged in the show cause documents and in CASA’s decision are matters of real concern. Mr Parkin drew my attention to some of those matters in the course of his submissions. CASA has made it clear it would prefer that Mr Tomkins and AMT were grounded – although CASA is prepared to countenance Mr Tomkins and AMT conducting flying operations if they were prevented from training new pilots. That concession suggests CASA does not have immediate concerns for the safety of the public. If it had such a concern, it would no doubt have exercised the power to peremptorily suspend any licence or authority pursuant to s 31D of the CAA. That power remains available notwithstanding any orders made under s 41 of the Administrative Appeals Tribunal Act 1975.

26.     I am satisfied public safety will not be imperilled if the applicants are allowed to continue flying operations. While I have some hesitation in permitting Mr Tomkins to continue instructing student pilots while the review proceeds, even Mr Parkin concedes there is no question over the applicant’s technical competence. He will not endanger the students, and there is no certainty he will impart any bad habits that he might later be found to have developed.

conclusion in relation to decisions 1, 2, 4, 5, and 6

27. I am satisfied the operation of decisions 1, 2, 4, 5, and 6 should be stayed pursuant to s 41(2) of the Administrative Appeals Tribunal Act 1975. The stay should remain in effect until the date of the expiry of the automatic stay on the operation of the decision to cancel the AOC pursuant to s 31A of the CAA.

the decision to decline to renew the flight instructors’ rating

28.     CASA declined to renew the flight instructors rating which is due to expire today. CASA explained in its letter to Mr Tomkins dated 24 March 2006 that it was unnecessary to consider the application for renewal given the existing rating had been cancelled.

29.     Mr Logan relied on Hotop as authority for the proposition that the Tribunal could order a stay which had a positive effect in a situation like this. He argued the decision not to renew could not be seen in isolation from the decision to cancel the authority that would otherwise have been renewed. He says if the Tribunal fails to order CASA to renew the rating, any stay of the decision to cancel would be rendered pointless. All of the bad consequences foreshadowed in the affidavit of Mr Tomkins would then come to pass.

30.     Siopis J accepted in Hotop that a stay order with a positive effect could be made in an appropriate case. But is this an appropriate case? Mr Parkin pointed out that an applicant for renewal is required to undertake a flight test before a renewal can be granted. He acknowledged Mr Tomkins had sought such a test but CASA had not arranged one. He also acknowledged there was no reason to believe Mr Tomkins would not pass a test, and that such a test could be arranged relatively quickly. Mr Logan asked the Tribunal to order the renewal subject to the applicant sitting for and passing the required test.

31.     I am not comfortable making an order in the terms sought by Mr Logan. The Tribunal steps into the shoes of the original decision-maker; it cannot ignore constraints imposed on the original decision-maker.

32.     I think the appropriate course is to adjourn the application for a stay of the decision to decline to renew the flight instructors rating until such time as a flight test can be arranged. I am minded to grant an adjournment of seven days, although either party is at liberty to apply for earlier directions.

I certify that the 32 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member B J McCabe.

Signed:         Associate      Adam Ryan

Date of Stay Hearing                31 March 2006
Date of Decision  31 March 2006
The applicant was represented by Mr Logan of Counsel.
The respondent was represented by Mr Parkin.