Green and Civil Aviation Safety Authority
[2022] AATA 373
•7 March 2022
Green and Civil Aviation Safety Authority [2022] AATA 373 (7 March 2022)
Division:GENERAL DIVISION
File Number: 2022/0752
Re:John Green
APPLICANT
AndCivil Aviation Safety Authority
RESPONDENT
DECISION
Tribunal:Senior Member A Poljak
Date:7 March 2022
Place:Sydney
The application for a stay order is refused.
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Senior Member A Poljak
CATCHWORDS
PRACTICE AND PROCEDURE – application for a stay order – decision to suspend private pilot licence – whether it is desirable to grant a stay – where the safety of air navigation is the most important consideration – application refused
LEGISLATION
Administrative Appeals Tribunal Act 1975(Cth) s 41
Civil Aviation Act 1988(Cth) ss 9A, 31A
Civil Aviation Regulations 1988(Cth)
CASES
Rhoades and Civil Aviation Safety Authority [2018] AATA 775
Secretary, Department of Employment and Workplace Relations v Anastasiadis [2007] AATA 1065
REASONS FOR DECISION
Senior Member A Poljak
7 March 2022
Mr Green, the applicant, is the holder of a private pilot’s licence – Aeroplane category (PPL) that authorises him to fly aircraft as a private pilot. He was first issued with that licence on 15 November 1976 and has completed around 15,000 hours of aeronautical experience as a Pilot in Command.
The applicant is also the registered owner and operator of a Cessna 310 twin engine aircraft with registration mark VH-BIR (Aircraft).
The Civil Aviation Safety Authority (CASA), by its delegate, decided to suspend the applicant’s PPL in a reviewable decision dated 28 January 2022 (reviewable decision). The applicant has the benefit of an automatic stay under s 31A of the Civil Aviation Act 1988 (Cth) (the CA Act) because he applied to the Tribunal to review the primary decision and asked for a stay under s 41(2) of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act). These proceedings concern whether the applicant should be granted a stay under s 41(2) while the review proceeds to its conclusion.
The power to order a stay under s 41(2) of the AAT Act
Subsection 41(2) of the AAT Act provides that the Tribunal may make 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, to secure the effectiveness of the hearing and the determination of the application for review.
Such an order may be made 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’. The interests of the applicant are obviously relevant; however, it is not intended to simply protect an applicant from the consequences of a decision. It is not a general power available to prevent or contain hardship and loss to the applicant or any other person; see Rhoades and Civil Aviation Safety Authority [2018] AATA 775 at [3].
There are numerous authorities setting out a non-exhaustive set of factors to be taken into account when determining an application for a stay order. In Secretary, Department of Employment and Workplace Relations v Anastasiadis [2007] AATA 1065 at [6]-[7], the Tribunal summarised the well-established relevant factors and principles which may be considered when determining a stay application:
[6] The decision whether to grant a Stay is entirely discretionary. It follows that an applicant does not have an automatic right to a Stay. Given the effect of s 41(1) of the AAT Act, it must necessarily be inferred that the reviewable decision, the decision of the SSAT in this case, is correct until proven otherwise. Further, the general principle applied by the courts that, prima facie, the successful party has the right to the fruits of a judgement should also apply in the case of Tribunal decisions. In the courts, an applicant for a Stay is required to show that there are special circumstances which would justify the stay of execution of the judgement. (emphasis added)
[7] The matters which are considered by the courts to constitute special circumstances are similar to those enunciated by the Tribunal when dealing with Stay applications. Deputy President G.D. Walker in Re Secretary, Department of Workplace Relations and Nicholas [2006] AATA 497 at [21] and Senior Member B.J. McCabe in Re Labrador Liquor Wholesale Pty Ltd and CEO of Customs [2006] AATA 485 at [5] set out the following factors which may need to be considered in determining whether a Stay should be granted.
(a) The prospects of success or the merits of the applicant’s case on review.
(b) Whether there will be prejudice to the parties or anyone else if a Stay were not granted.
(c) Whether it is in the public interest to grant a Stay.
(d) That the review application, if successful, would be rendered nugatory or pointless if the Stay was not granted.
These factors are generally the touchstone against which consideration of stay applications are to be approached. In a civil aviation context, the safety of air navigation is and must be the most important factor in the Tribunal’s consideration of whether it is desirable to grant a stay. The public interest in safety is made clear in the CA Act. For example, s 9A requires CASA (and the Tribunal on review) to regard the safety of air navigation as its primary consideration when discharging its regulatory functions under the legislative scheme.
Background
The applicant’s PPL has previously been suspended on two occasions:
1.On 6 June 2007, the applicant’s PPL was suspended pending completion of a theoretical and practical examination of the applicant’s aeronautical skill and knowledge. That suspension was lifted in November 2007.
2.On 29 November 2012, the applicant’s PPL was suspended for a period of 12 months due to contraventions of the Civil Aviation Regulations 1988 (Cth) (CAR), namely his conduct in flying an aircraft without having undergone a flight review in the preceding 24 months and landing an aircraft after last light without holding the relevant rating to do so.
From 2019 to 2021, CASA investigated allegations related to the applicant’s PPL. The applicant was asked to show cause why his PPL should not be varied, suspended, or cancelled in response to the allegations. He responded on 18 June 2020 and 5 October 2021 and attended a ‘show cause conference’ on 12 August 2020.
In the reviewable decision dated 28 January 2022, CASA, by its delegate, after having considered the show cause notices, the applicant’s responses, and the contents of the show cause conference:
(a)found:
(i)the applicant’s decision to leave the controls of the Aircraft on 28 September 2019 was a deliberate breach of r 225(1) of the CAR and amounted to reckless operation of an aircraft contrary to s 20A of the CA Act and negligent conduct contrary to r 282(4)(a) of the CAR;
(ii)the applicant’s failure to endorse the maintenance release for the Aircraft following its collision with a hanger on 28 September 2019 and his decision to fly the Aircraft on 30 September 2019 without any inspection or certification by a qualified person contravened rr 47(1)(a)(iii), 50(2)(a), 133(1)(d) and 233(1)(g) of the CAR and amounted to reckless operation of an aircraft contrary to s 20A of the CA Act and negligent conduct contrary to r 282(4)(a) of the CAR;
(iii)the applicant negligently performed pilot maintenance on aircraft VH-JMG by leaving an adjustable spanner in its battery compartment which resulted in an in-flight electrical failure (which had the potential to cause loss of life or damage to property) and contravened rr 47(1) and 50(2) of the CAR by failing to endorse the maintenance release with the details of the electrical failure;
(iv)the applicant failed to follow Instrument Flight Rules (IFR) and Visual Flight Rules (VFR) procedures in contravention of CAR rr 172(1), 175(2) and 179(1) on 19 March 2021 in that he failed to notify Air Traffic Control that he was no longer intending to follow IFR procedures; he failed to maintain the minimum safe altitude (at times flying as low as 30 metres); he failed to maintain positive positional fixes with the references on the ground; and he flew in conditions which were well below the minimum visibility for a VFR landing. That conduct:
(A) increased the risk of a loss of situational awareness in relation to surrounding topography which can lead to a collision with terrain or unsighted obstacles;
(B) through the applicant’s making of a number of tight turns at low level, increased the risk of aerodynamic stall at an altitude from which the aircraft could not be recovered;
(C) increased the risk of an aircraft upset being caused by wind shear or turbulence at low level; and
(D) through his lack of radio usage, increased the risk of collision with other airspace users;
(b)was satisfied that the following grounds existed to vary, suspend, or cancel the applicant’s PPL:
(i) the applicant contravened a provision or provisions of the CAR and CA Act (CAR r 269(1)(a));
(ii) the applicant failed in his duty with respect to the safe navigation or operation of an aircraft (CAR r 269(1)(c)); and
(iii) the applicant was not a fit and proper person to have the responsibilities and exercise and perform the functions and duties of a holder of a PPL (CAR r 269(1)(d));
(c)decided to suspend the applicant’s PPL (Decision) until such time as:
(i)12 months passed since the commencement of the suspension;
(ii) the applicant undergoes no less than 15 hours remedial flight training and is certified as having a satisfactory level of aeronautical skill and knowledge suitable to the holding of a PPL;
(iii) the applicant satisfactorily undertakes a flight review; and
(iv) the suspension is lifted by CASA in writing.
Is it desirable to exercise the discretion?
The applicant claims that he will suffer significant hardship should the stay application be refused and the reviewable decision comes into effect. Most of the applicant’s flight experience is from his home airport on Lord Howe Island where he owns and operates a hospitality business called Earl’s Anchorage. In written submissions he claims:
“…aviation is my sport & recreation plus it keeps myself & my wife in touch with children & grandchildren that reside on the east coast of Australia. Of much more importance it will cause far more undue hardship to my hospitality business that has already suffered the crippling effects of COVID restrictions closing off our ability to trade over the last 2 years.
The business employs 20 people & being in a very remote location that has no access to road or rail relies heavily upon me commuting to mainland Australia to access goods & services needed to support the business & maintain equipment to an acceptable standard. There are no qualified/experienced trades personnel available locally to adequately maintain/repair electrical equipment, refrigeration, wastewater plant, mechanical plant & buildings to name a few.”
At hearing, the applicant advised that Qantas link provides two to three services to Lord Howe Island each week and supplies are shipped from mainland Australia each fortnight. However, he claims that these services are insufficient to maintain their business and property. The applicant advised that he had not considered the possibility of hiring another pilot during his suspension period as required. I do note that this would be an increased financial burden.
While I accept that the suspension of the applicant’s PPL would have a level of inconvenience, the applicant has not provided any evidence to establish financial hardship or to demonstrate the potential impact of his PPL suspension on his business or its operations. The hardship expressed by the applicant is not such that the effective hearing and determination would be diminished or eliminated.
It is unlikely that were a stay not to be granted, the hearing would be rendered nugatory as the 12-month suspension may have passed by the time of that hearing. There is no guarantee that the substantive matter will have reached completion before the 12-month suspension of the applicant’s PPL has come to an end. However, I do note that although the matter is factually dense, much has been admitted by the applicant. The applicant’s contentions appear to predominantly be that a lesser penalty ought reasonably to have been imposed in the interests of the safety of air navigation. This is a narrow issue and capable of expedient resolution some time prior to the expiry of the suspension period.
In a civil aviation context, I consider safety to be the most important consideration in the determination of whether it is desirable to grant a stay of the reviewable decision. Its impact is one that affects the public interest and the broader community.
Having regard to the considerations and conduct of the applicant outlined in the reviewable decision, I have doubts about the applicant’s fitness and propriety and competence such that I am not confident that he will not adversely affect the safety of air navigation during the period of any stay. Specifically, in the reviewable decision, the contraventions canvassed a variety of matters including the completion of maintenance books; undertaking of pilot maintenance; the applicant’s operation of aircraft both on the ground and in the air; and the airworthiness of aircraft. Each contravention posed a risk to aviation safety. This factor militates strongly in favour of a stay being refused.
While it is neither necessary nor appropriate for me to determine the substantive matter in an interlocutory application, I must be satisfied that the applicant has some prospects of success. This can be a difficult task given that all the evidence intended to be relied upon at hearing of the substantive matter may not be before me.
It cannot be said that the applicant’s prospects of success are high. Much of the applicant’s conduct the subject of the reviewable decision impacted the safety of aviation in Australia. That conduct is against a background of prior conduct by him that led to two separate suspensions of his PPL.
As already stated, it appears that there is little dispute about the actions of the applicant and events that led to the reviewable decision. The applicant’s present contentions appear to be that the imposition of a suspension of his licence by CASA was not the correct or preferable decision but rather ‘some other restriction or financial penalty could be imposed’. If, on substantive review, the applicant maintains this position and the Tribunal accepts the facts and contraventions set out in the reviewable decision, a suspension does not automatically result.
The imposition of a penalty or restriction in this case, namely whether to vary, suspend or cancel the applicant’s PPL, is discretionary. It is also open for the Tribunal upon review to decide the preferable decision is a more severe penalty such as a longer period of suspension or cancellation. In any event, I consider this factor to be neutral.
For these reasons I am not satisfied that is appropriate in the circumstances for a stay order to be granted. In reaching that view, I have had regard to the interests of the public in ensuring the safety of air navigation and I find this to significantly outweigh the other relevant factors.
Decision
For these reasons, I have decided to decline the application for a stay under s 41(2) of the AAT Act. The automatic stay under the CA Act now ceases to operate.
I certify that the preceding 22 (twenty-two) paragraphs are a true copy of the reasons for the decision herein of Senior Member A Poljak
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Associate
Dated: 7 March 2022
Date of interlocutory hearing: 1 March 2022 Applicant: Self-represented Counsel for the Respondent: M Eade Solicitors for the Respondent: C Swain, Civil Aviation Safety Authority
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