Edwards and Civil Aviation Safety Authority
[2003] AATA 594
•26 June 2003
Administrative
Appeals
Tribunal
ORDER AND REASONS FOR ORDER [2003] AATA 594
ADMINISTRATIVE APPEALS TRIBUNAL )
) No D2003/20
GENERAL ADMINISTRATIVE DIVISION ) Re HONE PIHAMA EDWARDS Applicant
And
CIVIL AVIATION SAFETY AUTHORITY
Respondent
ORDER
Tribunal Senior Member K L Beddoe Date26 June 2003
PlaceBrisbane
Decision Pursuant to section 41(2) of the Administrative Appeals Tribunal Act 1975 THE TRIBUNAL ORDERS that the operation or implementation of the decision notified on 8 May 2003 is stayed until 30 November 2003 or the earlier hearing of the application for review or until further earlier order.
Liberty to apply is reserved to both parties.
(Sgd) K L Beddoe
Senior Member
CATCHWORDS
PRACTICE AND PROCEDURE – stay - civil aviation – licences – cancellation of applicant’s Air Transport and Commercial Pilot (Aeroplane) Licences – whether decision to cancel the applicant’s licence should be stayed
Administrative Appeals Tribunal Act 1975 s 41
Re Ramsay and Department of Transport (1977) 2 ALD 97
Re Griffiths Grif-Air Helicopters Pty Ltd and Civil Aviation Authority (1993) 31 ALD 380
Re Gruzman and Secretary, Department of Aviation (1986) 9 ALN 111
McPherson v Civil Aviation Authority (1991) 22 ALD 754Re Flynn (unreported, AAT, Davies J, 1 February 1980)
REASONS FOR ORDER
26 June 2003 Senior Member K L Beddoe 1. By notice dated 8 May 2003, the respondent notified the applicant that the applicant’s Air Transport and Commercial Pilot (Aeroplane) Licences had been cancelled.
2. By an application lodged in the Tribunal on 2 June 2003 the applicant sought review of the decision to cancel his licences.
3. By a further application, also lodged in the Tribunal on 2 June 2002, the applicant sought an order, in terms of section 41 of the Administrative Appeals Tribunal Act 1975 (“the Act”), to stay the operation or implementation of the decision to cancel his licences.
4. The matter came on for hearing at Darwin on 20 June 2003. Mr Langmead of counsel appeared by telephone for the applicant and Mr Harvey of counsel appeared for the respondent.
5. No oral evidence was taken by the Tribunal and no documents were formally tendered and marked. However, the hearing proceeded on the basis that the following documents were before the Tribunal:
(a)2 pro-forma complaints by Douglas John Whitfield under the Justices Act;
(b)Affidavit of the applicant dated 19 June 2003;
(c)Affidavit of Leah Lynette Mott dated 19 June 2003;
(d)Affidavit of Rosanna Edwards dated 19 June 2003;
(e)Copy of affidavit of Peter George Wollerman dated 19 June 2003;
(f)Copy of affidavit of Andrew Robertson dated 19 June 2003;
(g)Documents lodged in Tribunal pursuant to section 37 of the Act (the “T documents”)
6. Section 41(2) of the Act provides:
“The Tribunal or a presidential member 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 or presidential member 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 or presidential member considers appropriate for the purpose of securing the effectiveness of the hearing and determination of the application for review.”
7. I make the following findings of fact:
(a)On 31 October 2000 the respondent approved the applicant as Chief Pilot with Yugal Mangi Clan Developments Pty Ltd (“the company”).
(b)The company is the operator of Air Ngukurr which provides passenger and cargo flights to and from Ngukurr in the Northern Territory.
(c)The applicant and Leah Lynnette Mott established Air Ngukurr in December 1997 where another air service ceased operations from Ngukurr.
(d)Mott is the Chief Executive Officer of the Company but the applicant is the controlling mind in relation to aircraft operations albeit that he is no longer the Chief Pilot.
(e)Air Ngukurr provides passenger and cargo flights to and from Ngukurr where, for approximately six months of the year, the roads surrounding Ngukurr are flooded and the area is virtually isolated because of flood water leaving air transport as the only viable transport facility. It employs thirty people and provides an essential service to the local community.
(f)Air Ngukurr is associated with the Yugul Mangi Community Government Council and an Assistant Councillor of that Council and Director of Air Ngujurr has sworn that, although the applicant is of Maori heritage, he has a close relationship with the local people; works well with the people and the Directors of Air Ngukurr; is important to both the company and the community; and speaks, interacts easily with the Aboriginal clans; and would be difficult to replace.
(g)The applicant held the position of Chief Pilot of Air Ngukurr from 1 October 1999 to 25 January 2002 when he was suspended by the respondent.
(h)In its letter of 25 January 2002 advising suspension of the Chief Pilot approval the respondent gave detailed reasons for its decision including the following recorded anecdotal evidence:
(i)verbal aviation industry rumour;
(ii)Internet aviation bulletin board PPRuNe (professional pilots’ rumour network);
(iii)verbal aviation industry complaints;
(iv)CASA safety reporting hotline complaints from concerned and reputable aviation industry sources;
(v)email complaints from concerned and reputable aviation industry sources;
(vi)verbal incident reports from concerned and reputable local pilots; and
(vii)Alert Bulletins from the Australian Transport Safety Bureau’s Confidential Aviation Incident Report system (“CAIR”), which appear to be from your pilots.
(i)The anecdotal evidence set out above prompted the respondent to conduct audits of the company in June 2001 and January 2002.. These audits failed to find any significant direct evidence to corroborate the anecdotal evidence held, as the paperwork maintained by the company appeared to be in order.
However, the respondent now asserts it is in possession of evidence from persons who either participated in, or witnessed, many of the events which gave rise to the allegations contained in the anecdotal evidence described above and which corroborates many of those reports. Examples of the evidence provided by the witnesses and relied on by the respondent include the following allegations:
(i)On 25 May 2001 the pilot-in-command of Cessna 210, registration VH-SYT, experienced a problem with the throttle that resulted in the engine stopping during the landing at Ngukurr. When he was later asked by the applicant to fly to Tindal he advised the applicant of the throttle problem and that he would not be able to perform the flight because the aircraft was considered unairworthy. The applicant is said to have become angry and ordered him to do the flight, which he refused. After a considerable argument with him, the applicant arranged for another pilot to perform the flight to Tindal in the apparently unairworhty aircraft.
(ii)Last year, when tasked to perform a flight from Ngukurr to Darwin by the applicant, a pilot advised the applicant he would exceed flight and duty time limitations if he carried out the flight. The applicant responded that he could still perform the flight but that the applicant would make all the entries in the maintenance release, trip record and flight and duty records in the applicant’s name to avoid recording any breach of the rules. The witness emphasised that “you won’t find anything in the records because Honi doesn’t write it down”.
(iii)On 29 August 2001, when tasked by the applicant to perform a flight in Cessna 210, registration VH-BEC, from Borroloola to Groote Eylandt with five passengers, the pilot told the applicant that he had a problem because he only had four life jackets. The applicant told him he had no choice other than to perform the flight without life jackets for all occupants if he wanted to keep his job. The pilot then refused the applicant’s demand and the applicant became angry and abusive.
(iv)In April or May 2001 the applicant conducted a flight at night in a Chieftain from Darwin to Ngukurr. Despite being advised by company pilots, when the applicant rang for a weather report, that the weather was unsuitable, the applicant told them he was coming, regardless of the weather, because the aircraft was required in Ngukurr for a charter the next day. After making several unsuccessful approaches because he couldn’t see the runway the applicant asked other pilots to help. He instructed them to watch for his lights and advise when the aircraft was over the runway threshold so that its exact position could be entered into the aircraft’s GPS navigation system. He advised that he would descend in 100 foot increments on each subsequent approach until he could see the runway. After three more approaches the applicant successfully landed from a ceiling of around 400 feet and in heavy rain. (The applicant says he landed on the third attempt).
(j)The respondent also became aware of a defect that had caused Cessna 210, registration VH-SYT, to become unairworthy at Ngukurr. Available evidence also indicated that the applicant would probably coerce a pilot to fly it to Darwin for repair to minimise the cost of the repair. To prevent this likely serious risk to air safety, which could have possibly resulted in injury or loss of life, the respondent provided the applicant with immediate written notice of its knowledge of the unairworthy state of this aircraft and recommended appropriate maintenance prior to any further flight.
(k)In explanation the respondent said to the applicant:
“CASA has been concerned about the standard of your performance as Chief Pilot of Yugul since December 1999, but has not had sufficient evidence to substantiate the serious allegations made against you. However, witnesses have now come forward with evidence which appears to substantiate these allegations and if true constitute a serious risk to air safety if you continue as Chief Pilot.”
(l)The respondent also relied on allegations in relation to maintenance of aircraft in non-approved circumstances and by non-approved persons including maintenance performed by the applicant, repeated failures to properly maintain the maintenance release for aircraft and excessive hours of working for pilots employed by the company.
(m)The fact of the suspension of the applicant’s Chief Pilot Approval has not prevented Air Ngukurr continuing to carry on its business, albeit that additional costs were incurred in getting a new Chief Pilot.
(n)On 8 May 2003, the applicant held the following licences and approvals:
(i)Air Transport;
(ii)Commercial Pilot (Aeroplane);
(iii)Private and Student Pilot (Aeroplane);
(iv)Flight Radiotelephone operator;
(v)Grade 2 Inspector rating with Multi-Training Approvals; and
(vi)Command Multi-Engine Instrument Ratings.
(o)The applicant has in excess of 3,500 hours of aeronautical experience including 400 hours on turbine powered aircraft and, save for a hangar incident involving a Cessna 150 eight years ago, says that he has an accident and incident free flying record.
(p)On 8 May 2003, the respondent cancelled the Air Transport and Commercial Pilot (Aeroplane) licences only.
(q)The company currently employs the applicant on non-pilot duties but says it will not be able to afford this beyond the end of July 2003 and will need to dismiss the applicant from employment if he is still unable to do commercial pilot flying.
(r)The applicant’s wife is also employed by the company on non-flying duties for which she earns $40,000.
(s)The applicant asserts that his family will suffer financial hardship if the company terminates his employment and he loses $60,000 salary with no prospects of alternative employment.
(t)The applicant’s family circumstances are such that the family will suffer short-term financial hardship if the applicant’s employment is terminated at the end of July 2003 but they acknowledge sale of assets would rectify this in the longer term assuming the applicant’s wife continues to derive her income.
(u)The prosecution of the applicant due to be heard on 26 August 2003 relates to one of the incidents relied on by the respondent whereby it is alleged that the applicant (in his capacity as then Chief Pilot) did counsel and procure the pilot-in-command of an aircraft to:
(i)not to enter a defect on a maintenance release; and
(ii)to commence a flight without ensuring the aircraft was safe for flight in all aspects.
(v)The only reported incident since the suspension of the applicant’s Chief Pilot approval is an incident in relation to a check flight on 27 February 2002 and reported to the respondent in a formal statement on the respondent’s letterhead dated 8 March 2002.
(w)The incident reported at document T65 was drawn to attention by Mr Harvey but relates to a ground incident at Tindal on 2 May 2001.
Consideration
8. The applicant submits that a stay order should be made to allow adequate time for preparation for hearing and to avoid hardship to the applicant. In the alternative, but less desirable, the Tribunal should direct an expedited hearing.
9. The respondent is amenable to an expedited hearing but said the circumstances do not justify a stay order, there is no relevant hardship, the prospects for success of the applicant cannot be determined at this stage, issues of air safety are involved and the hearing of the application for review should be deferred until after the criminal proceedings on 26 August 2003.
10. There have been a number of decisions in the context of section 41(2) which bear some resemblance to the circumstances while I have no need to find and refer to all of them I have taken guidance from the following.
11. In Re Ramsay and Department of Transport (1977) 2 ALD 97, Brennan J (President) said:
“The applicant seeks an order under s 41 staying a decision which, by varying the conditions of his private pilot’s licence, effectively prevents the applicant from flying his aircraft in the Normanton area until he undergoes a course of further training. The applicant cannot carry on his work efficiently unless he can fly, nor can he provide in emergencies such services as searching for lost persons or identifying bushfire areas.
The respondent says that the Normanton area is not so remote as to be without essential aerial services. The Flying Doctor is on call, nursing assistance is regularly flown in, and charter aircraft can be obtained. The respondent points to the events which led to the variation, and to the history of the applicant’s airmanship to show that he ought not be allowed to continue flying lest the safety of passengers and the public, as well as the safety of the applicant and his aircraft, be jeopardized. The significance of the applicant’s aviation history is partly in dispute, but there is no dispute as to the features of his conduct when his Cessna aircraft VH-R20 was involved in the accident of 24 March 1977. A concern regarding the safety of persons and property if the applicant should continue flying is, on the material presently available, a reasonable concern.
These considerations lead me to refuse the application. Although the applicant has rendered useful services, I do not think that in the time before the hearing of this application, the public interest will be significantly affected by permitting the licence variation to stand. On the other hand, the safety of aircraft operation is a matter of paramount importance in the administration of the Air Navigation Regulations. As the Tribunal will sit in Brisbane at the beginning of September to hear this matter, and as the issues of fact will then be fully canvassed before it, I think that on balance the application should be refused and I order accordingly.”
12. A more cautious approach is to be found in the approach of Davies J (President) in Re Flynn (unreported, AAT, 1 February 1980) where his Honour refused to stay a decision cancelling a private Pilot’s Licence and gave the following reasons:
“I think that I should substantially refuse the application at the present time, but without prejudice to your renewing it should there be some particular flight which becomes desirable prior to the hearing of the proceedings. We are dealing with a matter of public safety, and I think that I could not myself determine that Father Flynn was a fit and proper person to perform the functions and duties of the holder of a Private Pilot’s Licence without going into the facts of the matter in a great deal of detail. Really that is a matter that can only be dealt with at the hearing. I do not think that it would be proper for me to assume that he is so qualified when there has been a finding by a delegate to the Secretary of the Department of Transport to the contrary. I must take public safety into account. I therefore think that I should not give a general stay of the order at the present time, and I make that ruling reserving to you liberty to apply for a stay of the order should it become necessary for your client to make some particular flight when the matter can be reviewed in the light of the particular flight that is desired to be made.”
13. That cautious approach perhaps reached its zenith in obiter of Ryan J in McPherson v Civil Aviation Authority (1991) 22 ALD 754 where his Honour said:
“Even if I had been able to conclude the applicant had a reasonable prospect of success, on one or other of the questions of law which he apparently seeks to raise, I would have been reluctant to grant a stay which had the effect of allowing the applicant any interim licence to fly as a commercial pilot.
There is a manifest public interest in ensuring that judgments as to the fitness of a person to fly passengers for reward should be made by those with the technical knowledge and experience to make an informed assessment of the risks involved.
In my view it would require a strong prima facie demonstration that a decision to suspend such a licence was totally unreasonable in the sense of being without foundation in fact or law for this court to override, even temporarily, the view of the Civil Aviation Authority, or the Administrative Appeals Tribunal constituted as the present Tribunal partly was, by members with special expertise in this area.
As I have already indicated, the present applicant has not given such a demonstration. I am also inclined to discount the inconvenience to the applicant which the refusal of stay will entail, because of the prospect that this court can afford a hearing of this application within a matter of 2 or 3 weeks, if the applicant so desires. Counsel for the respondent have indicated the readiness of their client to facilitate an expedited hearing within that time frame.
For these reasons the application for a stay must be refused.”
14. In Re Griffiths Grif-Air Helicopters Pty Ltd and Civil Aviation Authority (1993) 31 ALD 380, the Tribunal (Deputy President Forgie, Gibson and Julian, Members) pointed out that McPherson was not a case decided under sub-section 41(2) but a case where the Court was exercising the power under section 44A(2), there having been an appeal from a decision of the Tribunal to the Federal Court.
15. It is clear from the above that a stay order is not to be lightly made and should only be made when the requirements of sub-section 41(2) are satisfied. Those requirements are discussed in some detail in Re Griffiths Grif-Air Helicopters Pty Ltd and summarised by the Tribunal as follows (at pars 53-4):
“(53) Taking into account the interests of the parties, the matters which we should consider are:
§ the prospects of success of the applications for review of the decisions;
§ the hardship to Mr Griffiths and Grif-air if the stay orders are not made; and
§ whether the public safety is likely to be imperilled if the stay orders are not made.
(54) In considering these three matters, we should also remember that there are other matters besides the interests of the parties which the Tribunal should take into account. These arise from the fact that, if the Tribunal considers that it is desirable to make an order, the effectiveness of the hearing and the determination of the application for review. Therefore, the Tribunal must consider with the other three matters listed in the preceding paragraph whether the application for review, if successful, will be rendered nugatory if the request for a stay is not granted.”
16. Adopting those criteria I am satisfied, on the material before me, that:
(a)the applicant has a reasonably arguable case in relation to his application for review because the decision-maker has relied on grounds which include grounds more appropriate to approval as Chief Pilot – grounds relevant to a Commercial Pilot licence seem, as least in some, to be equivocal;
(b)the applicant is the controlling mind of the company in air operations – the respondent asserts he is the defacto Chief Pilot – with likely detrimental consequences for the company if it is forced to dismiss him as an employee;
(c)the applicant and his family are likely to suffer short-term financial hardship if he is dismissed by the company at the end of July;
(d)failure to comply with air safety requirements, as is claimed to have occurred in this case, may result in compromise of public safety, but in this case there are no claimed incidents such as an accident and many of the allegations against the applicant go to process rather than situations where public safety was actually imperilled;
(e)the alleged incidents relied on by the respondent were taken into account when the applicant’s Chief Pilot approval was suspended in January 2002 except for the incident in February 2002 so that it is reasonable to infer that the respondent had no particular concerns about public safety being imperilled because it allowed the applicant to continue as a Commercial Pilot for a further 15 months;
(f)the applicant’s private licences have not been cancelled so I infer he is still regarded as a safe pilot;
(g)the effectiveness of the hearing will be compromised if the matter is brought on too soon and in any event I agree with the respondent that the hearing in this Tribunal should not precede the criminal proceedings set for 26 August 2003 (Re Gruzman and Secretary, Department of Aviation (1986) 9 ALN 111);
(h)subject to (g) above, the hearing should be expedited because the effectiveness of the hearing will be compromised if delayed unduly, given that many of the events relied upon are already fading into history;
(i)in particular, I have taken into account the interest of the parties, the company and the Yugal Community. The community has a particular interest in the company continuing to provide air-services to the community.
17. For these reasons I am satisfied it is desirable to make an order in terms of sub-section 41(2) of the Act staying the implementation or operation of the decision under review. The order will expire on 30 November 2003 or until further earlier order with liberty to apply.
18. I will direct that the matter be listed for hearing at Darwin on dates to be advised but not before 15 September 2003.
I certify that the 18 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member K L Beddoe
Signed: .......................................................................................
AssociateDate of Stay Hearing 20 June 2003
Date of Decision 26 June 2003
Counsel for the Applicant Mr Langmead
Solicitor for the Applicant Wollerman Shacklock
Counsel for the Respondent Mr Harvey
Solicitor for the Respondent Civil Aviation Safety Authority
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