Griffiths, Roy Frederick v Seymour, Robert Michael

[1982] FCA 265

Re: ROY FREDERICK GRIFFITHS
And: ROBERT MICHAEL SEYMOUR
No. Qld.G96 of 1982
Administrative Law

COURT

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION
Fitzgerald J.

CATCHWORDS

ADMINISTRATIVE LAW - Judicial Review of Administrative Decisions - decision not to renew Aerial Work Licence - Decision influenced by criminal convictions then subject to appeal - decision influenced by other considerations, as to the truth or relevance of which the applicant was not given an opportunity to be heard - observations as to the use which may be made of information contained on departmental files - breach of natural justice - decision set aside and matter remitted for reconsideration.

Administrative Decisions (Judicial Review) Act, 1977, sec.5

HEARING

BRISBANE

#DATE 1:12:1982

ORDER

1. The decision of the Queensland Regional Director of the Department of Aviation, as delegate of the Secretary of the Department of Aviation, of 5 August 1982, not to renew the applicant's Aerial Work Licence No. Qld 576, be set aside.

2. The matter be referred back to the Queensland Regional Director of the Department of Aviation, as delegate of the Secretary of the Department of Aviation, to consider whether the applicant's Aerial Work Licence No. Qld 576, ought be renewed.

JUDGE1

Roy Frederick Griffiths has applied to this Court pursuant to s.5 of the Administrative Decisions (Judicial Review) Act 1977 for an order of review in respect of a decision of the Queensland Regional Director of the Department of Aviation that an Aerial Work Licence, issued to the applicant, No. Qld 576, not be renewed from 31 August 1982. The possibility of such a decision was first raised in a letter to the applicant from the Queensland Regional Director dated 14 April 1982. By then the licence had expired, but it was temporarily "renewed", and subsequent extensions were granted to 31 August 1982, whilst consideration was given to the decision to be made. During the period that the decision was under consideration, a number of letters were written to the Queensland Regional Director on the applicant's behalf and discussions took place during which the applicant was represented by lawyers including a member of the Bar. The decision not to renew the licence was communicated to the applicant by a letter dated 5 August 1982 which provided as follows:

"AERIAL WORK LICENCE QLD 576: R.F. GRIFFITHS I refer to my letter of 14 April, 1982, and to subsequent correspondence between Messrs A.W. Bale & Son and this office concerning the abovequoted Aerial Work Licence, during which I advised you that I was considering whether or not to renew Aerial Work Licence No. QLD 576 issued to you. Full details of the issues I have before me for consideration have been set out in that previous correspondence and you have been given the opportunity to provide any facts and circumstances additional to those specified in my correspondence to you. In reaching a decision I took into account the following matters which relate to your behaviour from previous years:-

(1) Convictions recorded in the Magistrates Court in November 1981 and April 1982 which established to the satisfaction of the Court that you -

(a) Failed to comply with Air Navigation Regulation 213 in that you failed to maintain records of flight times of the operating crew employed by your company.

(b) Failed to comply with Air Navigation Regulation 271 in that you omitted to notify an accident which occurred to an aircraft operated by you at or about Alderton Station on or about the 1st day of June 1979.

(c) Failed to comply with Air Navigation Regulation 108 (i) (d) in that on or about the 11th day of June 1979 at or about Alderton Station you commenced flight in an aircraft operated by your company before maintenance carried out had been certified.

(d) Failed to comply with Air Navigation Regulation 49(k) in that between the 8th day of June and the 11th day of June 1979 at or about Manning Station in the State of Queensland you failed to ensure that records with respect to the aircraft were kept and retained in accordance with the directions given in Air Navigation Orders Part 108 Section 100.5.1 Issue 3 made pursuant to Regulation 49(k).

(2) Your failure to comply with the condition of your licence which requires that the maintenance carried out on aircraft operated by you shall be in accordance with that Maintenance Agreement between you trading as Grifair and Helifix dated 19 February, 1981. At condition (b) of that agreement you are required, among other things, to notify Helifix when periodic inspections are due on your aircraft. Your failure to comply with that condition arose following approval by this Department for you to exceed the time in service of the tail rotor blades of your aircraft VH-RFY by 58 hours or three months whichever occurs first. The 58 hours period was selected by you to coincide with the next periodic inspection due on the aircraft. Evidence was placed before me that you operated the aircraft as pilot in command for at least 80 hours without notifying Helifix that the time had arrived for a periodic inspection, at which time the tail rotor should have been replaced by them as required by the condition of your licence and the maintenance agreement. This Department was not approached for authorisation for this work to be done by anyone else. As a consequence of this failure on your part, the tail rotor failed in flight and the aircraft of which you were pilot in command at that time crashed near Stanthorpe on 20 August, 1981.

(3) The matters enumerated in Attachments A, B, C and D of my letter to Messrs A.W. Bale & Son concerning this subject on 20 May, 1982. While I do not propose to restate the details of those attachments in this letter, they dealt with:- - At Attachment A, accidents and incidents involving you as operator or pilot in command over the period 1976-1982 inclusive. There were eight such occurrences listed under that heading. - At Attachment B there were listed irregularities observed of your performance as a pilot over the period September 1976 until the present which included ten occurrences. - At Attachment C there were listed irregularities in the maintenance of specific aircraft with which you were associated during 1979, of which there were nine occurrences detailed. - At Attachment D there were listed the irregularities observed during surveillance of the operations of your organisation Grifair. While again the full reports of those airworthiness surveillance actions were not listed, there was provided to you substantial evidence of repeated failures on the part of your organisation Grifair, to observe the Air Navigation Regulations and Orders relating to the maintenance of aircraft.

(4) In the course of a hearing in the Queensland Magistrates Court in November 1981, information was provided to the Court that in 1976 in the Auckland New Zealand Magistrates Court you were convicted on ten charges for breaches of the New Zealand Civil Aviation Regulations (1953). In a report made available to me on that matter, I noted that while you were apparently aware of the Civil Aviation Regulations governing your activities, you chose not to observe them because as was stated by the Magistrate "you remain unconvinced of the necessity to comply with this safety procedure".

In considering the weight to be given to these various events and the submissions made on your behalf by Messrs A.W. Bale & Son and by Counsel Mr D.J. Draydon, I have had regard for the events of past years only to the extent that they reveal a continuing pattern of behaviour by you which is inconsistent with safe operating practice and reveals many occasions when you operated in contravention of the Air Navigation Regulations and Orders.

While noting that submissions made on your behalf offer in some cases explanations of admitted events and in others denial in the absence of the production of proof by the Department, I have felt that the records maintained by this Department and other authorities are likely to be more accurate than your memory of events, some of which occurred some years ago. I have accordingly not been influenced by the submissions made on your behalf to the extent of rejecting Departmental records as not being accurate. I have therefore accepted these records and given them weight to the extent only that they establish a pattern of behaviour over the years 1975 to 1979/1980.

In 1980 renewal of your operating licence was made subject to conditions which among others included

- a requirement that in respect of agricultural operations you should employ a suitably qualified chief pilot and

- maintenance of your aircraft will be carried out within the terms of a maintenance agreement executed between yourself and a (named) approved maintenance organisation

- the (then) Department of Transport to be notified within 48 hours should clause (g) of the maintenance agreement be enforced. (Note: Clause (g) dealt with the termination of the maintenance agreement.)

These conditions were imposed in recognition that you had demonstrated you were not able yourself to direct the affairs of your organisation in respect of the maintenance and operation of your aircraft within the Regulations and Orders governing safety. Through the observance of these conditions others would be responsible for these matters. Nevertheless, as the daily operations remained under your control you remained in such a position that your actions could still influence the course of events.

On 20 August, 1981, the Stanthorpe accident occurred. The events preceding this accident are not in dispute and clearly demonstrate your part, both as pilot in command of the aircraft and as the responsible person for the organisation's operations in contributing to the structural failure which caused this accident. I have given this event great weight in reaching my decision as I consider that it illustrates that your approach to compliance with the Regulations and Orders governing safety has not changed.

This accident was followed on 16 January, 1982, by that near Smithton, Tasmania, which was attributed to you conducting agricultural operations in weather so adverse to success that you had to fly so close to the crop that your spray booms contacted the crop. I note that you offer another explanation as to what part of the aircraft made contact and you say that the aircraft struck a concealed obstruction. The adverse conditions in which the operation occurred are not denied. While this accident reflects on your judgement as an agricultural operator, I do not regard it in the same light as the Stanthorpe accident in deciding regarding the renewal of your licence. I regard the accident as no more than further evidence of your tendency to operate to less than desired safety standards.

I have given consideration to the possibility of further revising the conditions contained in your licence with a view to reducing the opportunity for you to avoid compliance with the Regulations and Orders governing safety, including Mr Draydon's proposal that the licence contain conditions of a probationary nature, i.e. that the licence be reissued subject to the condition that if any directive Regulation or Order is breached within the next twelve months then action would be taken immediately. I note that a similar condition has been contained in the licence from the outset - to no effect.

I am satisfied that the facts discussed in this letter and in our previous correspondence reveal on your part a pattern of behaviour which reveals a continuing tendency to operate without regard for compliance with the Regulations and Orders governing the safety of operations. I am, therefore, left with no alternative but to refuse to renew your licence. In taking this action I must point out that I am not at this point in time acting against your Pilot Licence in the belief that this licence is required by you for the continued earning of your living which I consider would best be carried out in the employ of and under the supervision of some other operating organisation which has retained its licence through conducting its affairs with proper regard for the Regulations and Orders governing the safety of operations. I will, however, view with the most serious concern any further personal infringements of the Air Navigation Regulations and Air Navigation Orders.

Accordingly, acting under the power delegated to me by the Secretary, Department of Aviation, under Regulation 200(2)(a) of the Air Navigation Regulations I refuse to renew Aerial work Licence No. QLD 576 issued to R.F. Griffiths. The licence will expire on 31 August, 1982, following which you should cease to exercise the privileges of that licence.

Your attention is drawn to your right of appeal against this decision under the provisions of the Administrative Decisions (Judicial Review) Act 1977. An application for an order of review must be lodged with the Federal Court no later than the 28th day after receipt of this letter of refusal to renew your licence.
Yours faithfully,
(Sgd)
(R.M. SEYMOUR)
Regional Director"

The "Attachments A, B, C and D" referred to in that letter had been compiled from departmental records and listed a startling array of "accidents and incidents" and "irregularities" during the period in which the applicant has been in Australia.

There is really no alternative but to quash the decision, irrespective of whether or not it would be established on a review of the merits that a refusal to renew the licence was appropriate. It is sufficient to refer to three defects which occurred in the decision making process, not all of which are of equal significance but which, taken together at least, are such that the question whether the licence should be renewed must be reconsidered.

1. The first matter relied on by the Regional Director was certain convictions described in paragraph (1) of his letter of 5 August 1982. Two were under appeal at the time, and the outcome is still unknown. Another, see sub-paragraph (d), related to a matter which the Director-General had agreed not to take into account. Further, although a conviction was subsequently recorded in respect of that matter on the applicant's guilty plea, that did not occur until after the decision not to renew the licence.

2. The Director-General gave "great weight" to the Stanthorpe accident, which was caused by a tail rotor failure on the applicant's helicopter. There is no doubt but that the aircraft was being operated at the time in breach of a condition which required the replacement of the tail rotor when it had been in service for 58 hours after the end of June 1981. At the time of the crash, the tail rotor had exceeded that period by more than 22 hours. The Director-General plainly was of the view that the breach was deliberate and indicated a totally unacceptable attitude by the applicant to the law and to safety requirements. He may very well have been correct. However, the applicant had throughout insisted that there had been a misunderstanding. The period of 58 hours had been provided by him to the department as the period after which the helicopter would next be due for a periodic service (100 hourly). In fact, such service was not due for something in excess of 80 hours. The applicant's belief, he asserted, was that the tail rotor did not have to be replaced until that service, which was still not due when the crash occurred. No explanation has yet been offered as to how the wrong figure was provided or why the error was not corrected. Nonetheless, the issue as to whether or not the breach was deliberate was very much in dispute and the Director-General had agreed to have the departmental officer who had been involved in the discussions with the applicant available for questioning. He was requested but failed to do so and, without further notice to the applicant, resolved the critical issue adversely to the applicant relying heavily upon his conclusion on that issue for his decision to refuse the licence.

3. The only other matter discussed before me concerned the Queensland Regional Director's reliance upon the "accidents and incidents" and "irregularities" enumerated in Attachments A, B, C, and D. The applicant represented himself before me and I do not propose to travel beyond what was canvassed. Further, I think that it is appropriate that I should say as little as possible on this final matter, which raises potentially difficult questions of general importance, since the matter was not fully argued in these proceedings.

On the course of the exchange of correspondence between 14 April and 5 August 1982, the applicant by his then solicitors admitted and/or explained only about eight of the matters referred to in the Attachments. He denied all others, and persisted in demands that they be formally proved. Plainly what was required was a hearing, with evidence, cross-examination, and argument. Before me, the applicant acknowledged that such a process was impractical and that he could respond to all, or almost all, of the matters raised by reference to his logs. In view of the time limit for prosecution under Air Navigation Regulation 319, it was suggested that no problem of possible selfincrimination would arise.

Unfortunately, the extreme position for which the applicant contended for in correspondence, which the defendant was no doubt anxious to avoid, seems to have distracted both parties. The Queensland Regional Director might, perhaps, have acted on the departmental records on the basis that, having been given an opportunity to explain or contradict them, the applicant had failed or refused to do so. In order to pass on the propriety of that course in a particular case, in a particular case it might be necessary to know more of the nature of the records and the sources of their contents. That was not however what the Queensland Regional Director did. He expressed a general and apparently arbitrary preference for the accuracy of the departmental records over the applicant's memory. It is true that he said that he relied on the contents of the departmental records only for the pattern of behaviour revealed but plainly the pattern had no validity beyond its foundaitions in the individual matters.

I do not think it is possible or desirable to attempt to prescribe general formulae. There are no special procedures ordained by statue to govern the making of a decision whether or not to renew a licence such as that now relevant. The licensee must be given the opportunity of being heard. The precise details of what that necessitates and the use to which deparmental records may be put will vary from case to case, depending on the particular circumstances, including the nature of the records and the sources of the information which they contain. It is unlikely that, in the usual case, it will be proper either to ignore records or to treat their contents as possessing Biblical reliability. It is also unlikely that there will be many cases in which a hearing or rules of evidence or procedure appropriate in a court will be called for. Nonetheless, such matters as a lack of cogency in particular evidence, perhaps because it is hearsay which in the circumstances should not be considered reliable, and possible difficulties in recording issues dependent on credibility without seeing and hearing witnesses, may not always be able to be ignored.

It is unnecessary to say more in this case. The combination of factors to which reference has been made satisfies me that it is appropriate that the decision not to renew the licence, which is of obvious importance to the applicant because it affects his livelihood, should be quashed and the question whether or not to renew it reconsidered. It is a matter for the Department whether the applicant should remain without a licence in the meantime, although in that event the reconsideration should take place expeditiously. The applicant did not ask that the matter be reconsidered by a different delegate of the Department of Transport, nor did he ask for costs.

I order that the decision of the Queensland Regional Director of the Department of Aviation, as delegate of the Secretary of the Department of Aviation, of 5 August 1982, not to renew the applicant's Aerial Work Licence No. Qld. 576, be set aside, and that the matter be referred back to him to consider whether the Licence ought be renewed. I make no order as to costs.