Civil Aviation Safety Authority v Skymuster Helicopters Pty Ltd
[2019] FCA 615
•2 May 2019
FEDERAL COURT OF AUSTRALIA
Civil Aviation Safety Authority v Skymuster Helicopters Pty Ltd [2019] FCA 615
File number: ACD 33 of 2019 Judge: GRIFFITHS J Date of judgment: 2 May 2019 Catchwords: AVIATION – application under s 30DE of the Civil Aviation Act 1988 (Cth) for an order prohibiting the respondents from doing anything authorised by a Air Operator’s Certificate and flight crew licences, which without the certificate and licences it would be unlawful to do – where the parties consented to orders under s 30DE operating for a period of 15 days – where under s 30DE(2) the Court is obliged to make orders if it is satisfied that there are reasonable grounds to believe that the respondents have engaged, are engaging in or are likely to engage in conduct that contravenes s 30DB – Court satisfied of the matters required under s 30DE(2) Legislation: Civil Aviation Act 1988 (Cth) ss 3A, 9A, 30DB, 30DC, 30DE Date of hearing: 2 May 2019 Registry: Australian Capital Territory Division: General Division National Practice Area: Other Federal Jurisdiction Category: Catchwords Number of paragraphs: 18 Counsel for the Applicant: Mr I Harvey Solicitor for the Applicant: Litigation and Enforcement Section Civil Aviation and Safety Authority Counsel for the Respondents: Mr S J Given Solicitor for the Respondents: Macpherson Kelley ORDERS
ACD 33 of 2019 BETWEEN: CIVIL AVIATION SAFETY AUTHORITY
Applicant
AND: SKYMUSTER HELICOPTERS PTY LTD (ACN 066 565 491)
First Respondent
ALAN JOHN SCOTT
Second Respondent
JUDGE:
GRIFFITHS J
DATE OF ORDER:
2 MAY 2019
BY CONSENT, THE COURT ORDERS THAT:
1.Pursuant to s 30DE of the Civil Aviation Act 1988 (Cth), the first respondent, for a period of 15 days, be prohibited from doing anything that is authorised by the Air Operator's Certificate held by the first respondent but which, without the Air Operator's Certificate, it would be unlawful for the first respondent to do.
2.Pursuant to s 30DE of the Civil Aviation Act 1988 (Cth), the second respondent, for a period of 15 days, be prohibited from doing anything that is authorised by any flight crew licence held by the second respondent but which, without that flight crew licence, it would be unlawful for the second respondent to do.
3.There be no order as to costs.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
GRIFFITHS J:
These reasons relate to an application made by the Civil Aviation Safety Authority (CASA) under s 30DE of the Civil Aviation Act 1988 (Cth) (CA Act). The application, which is dated 23 April 2019, seeks an order under s 30DE(2) of the CA Act prohibiting the first and second respondents, for a period of 20 days, from doing anything that is authorised by their respective civil aviation authorisation but which, without such authorisation, would be unlawful for them to do so.
The parties have consented to the making of such orders, albeit for a period of 15 days.
For the following reasons, the Court will make those orders by consent. Having regard to the terms of s 30DE(2), it is appropriate that the Court provide brief reasons for its decision.
Under s 30DC of the CA Act, CASA is empowered to suspend a civil aviation authorisation if it has reason to believe that the holder of the authorisation “has engaged in, is engaging in or is likely to engage in, conduct that contravenes section 30DB”. There is no requirement for CASA to give notice to the holder before acting under this provision.
Section 30DB provides that the holder of an authorisation “must not engage in conduct that constitutes, contributes to or results in a serious and imminent risk to air safety”. Section 30DE of the CA Act provides:
Application for and making of order
(1)If CASA suspends a civil aviation authorisation under section 30DC, CASA may, before the end of the fifth business day after the day on which the holder of the authorisation was notified of the suspension, apply to the Federal Court for an order under this section.
(2)If the Federal Court is satisfied that there are reasonable grounds to believe that the holder has engaged in, is engaging in, or is likely to engage in, conduct that contravenes section 30DB, the Court must make an order that prohibits the holder from doing anything that is authorised by the authorisation but that, without the authorisation, would be unlawful.
(3)In deciding under subsection (2), the Federal Court must have regard to section 3A and subsection 9A(1).
(4)Subject to section 30DF, an order continues in force for the period determined by the Federal Court when making the order, being the period (not more than 40 days) that the Court considers reasonable to allow CASA to complete an investigation into the circumstances that gave rise to CASA's decision to suspend the authorisation.
The reference to s 3A is a reference to the provision which states the main object of the CA Act:
Main object of this Act
The main object of this Act is to establish a regulatory framework for maintaining, enhancing and promoting the safety of civil aviation, with particular emphasis on preventing aviation accidents and incidents.
Section 9A obliges CASA, in exercising its powers and performing its functions, to regard the safety of air navigation as its most important consideration.
Summary of background facts
It is appropriate to now briefly state the relevant background facts, which draw heavily on an affidavit dated 23 April 2019 by Mr Anthony Carter, who is Special Counsel in CASA’s litigation, Investigations and Enforcement Branch. He deposes that, on 18 April 2019, the first respondent’s Air Operator’s Certificate (AOC) and the second respondent’s flight crew licences were suspended by CASA on the basis of the relevant decision-maker’s belief that both the respondents had engaged in, were engaging in, or are likely to engage in, conduct that contravenes s 30DB of the CA Act. CASA also relied upon an affidavit dated 20 April 2019 affirmed by Mr Mark Haslam, a Senior Investigator of CASA, who conducted an investigation into the events which occurred on 10 April 2019.
The basis for the decision-maker’s belief relates to the following matters. The first respondent (Skymuster) is authorised under its AOC to conduct aerial work and charter operations in Australia. Its primary operations involve charter, heli-fishing and air work operations. The second respondent is the Chief Pilot and Managing Director of Skymuster. Skymuster operates four helicopters from its operational bases at Atherton and Punsand Bay in Queensland. In the past 12 months it was estimated that Skymuster carried approximately 1100 passengers. The second respondent holds a private pilot licence and commercial pilot licence in the helicopter category.
On 12 April 2019, a member of the public forwarded to CASA video footage posted to an Instagram account on or about 10 April 2019. The video footage is approximately one minute in duration and has been viewed by the Court. The footage appears to have been taken by a person standing on a beach within a few meters of a motorboat with people on board. It shows a helicopter approaching a long beach before flying a short distance over water and in close proximity to the boat. The footage was taken at Haggerstone Beach Resort. The footage shows a person standing on the skid of the helicopter while it is in flight. The person is unrestrained and is holding onto the helicopter with one hand while holding in his other hand what appears to be a bottle of beer. The footage then shows the person jumping from the helicopter while in flight into the water below at a height of approximately 10 feet. The footage also shows the helicopter engaging in aerobatic manoeuvers at a low height and in the vicinity of the motorboat.
CASA’s investigations revealed that the helicopter is likely to be one in respect of which Skymuster is the registered operator.
The second respondent has confirmed that he was the pilot in command of the flight on 10 April 2019 and that the helicopter was on a charter flight from Weipa to Haggerstone. There were two passengers in the rear seat, being a pilot who was under instruction by the second respondent and his wife. The person standing on the skid has also been identified as Mr Jordan Cowen.
CASA’s notice of immediate suspension dated 18 April 2019 sets out the decision-maker’s belief that there were several serious and unnecessary risks to safety of people both on board the aircraft and the ground relating to the event. They include that allowing a person to stand upon and then jump from the helicopter’s skid was reckless conduct on the part of the pilot. Another serious risk was that posed to persons either aboard or in close proximity to the motorboat because the helicopter was manoeuvring at a very low level and in close proximity to them. These are not all the risks set out in the notice.
The decision-maker concluded that he had reason to believe that both the respondents had engaged in conduct that constitutes, contributes to, or results in a serious and imminent risk to air safety and that the events required further investigation by CASA with a view to deciding what action should be taken against the respondents. The decision-maker stated that further inquiries may include a review of operational and pilot records held by Skymuster, interviewing its personnel and others and a review of maintenance records for all its aircraft.
For these reasons, the decision-maker made a decision to suspend the first respondent’s AOC and the second respondent’s flight crew licences. The suspension came into effect immediately on receipt of the notice and lasted for a period of five days.
In circumstances, however, where CASA made an application to the Court under s 30DE within that 5 day period, as occurred here, the period of the suspension continues until the Court determines CASA’s application.
Determination
Based on this material, and noting also that the parties’ consent to the orders being made, I am satisfied that there are reasonable grounds to believe that both respondents have engaged in conduct that contravenes s 30DB of the CA Act. Having regard to the video footage and the other evidence provided in the affidavits of Mr Carter and Mr Haslam, I am comfortably satisfied that there is a reasonable foundation to believe that the respondents have engaged in conduct that either constituted, or contributed to, or resulted in, a serious and imminent risk to air safety. I am also comfortably satisfied on the basis of this material that both respondents may be engaging in, or are likely to engage in conduct that constitutes, contributes to or results in a serious and imminent risk to air safety, not the least because there is evidence that the second respondent was recently counselled by CASA in relation to a number of historical videos which showed the second respondent operating a helicopter contrary to civil aviation legislation.
Conclusion
For these reasons, I am satisfied that it is appropriate to make the orders in the terms to which the parties have consented.
I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Griffiths. Associate:
Dated: 2 May 2019
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