Invincible Airscrews Pty Ltd and Civil Aviation Safety Authority

[2020] AATA 21

Invincible Airscrews Pty Ltd and Civil Aviation Safety Authority [2020] AATA 21 (13 January 2020)

Division:General Division

File Number(s):      2019/1643

Re:Invincible Airscrews Pty Ltd

APPLICANT

AndCivil Aviation Safety Authority

RESPONDENT

DECISION

Tribunal:Deputy President Bernard J McCabe

Date:13 January 2020

Place:Sydney

The application is dismissed under s 42B(1) of the Administrative Appeals Tribunal Act 1975.

..................................[sgd]......................................

Deputy President Bernard J McCabe

CATCHWORDS

PRACTICE AND PROCEDURE – whether the Tribunal has jurisdiction to hear the matter – prospects of success – operation of certification regulations – operation of transitional provisions – whether the transitional provisions for propellers applies to allow application of original regulations – certificate of type approval – type certificates – whether a type certificate can be issued under the certificate of type approval requirements – no prospects of success – application dismissed under s 42B(1)

LEGISLATION

Administrative Appeals Tribunal Act 1975

Civil Aviation Regulations 1988

Civil Aviation Safety Regulations 1998

REASONS FOR DECISION

Deputy President Bernard J McCabe

13 January 2020

1. This case is all about timing. The applicant wants the Civil Aviation Safety Authority (CASA) to issue the relevant approvals for a type A68 wooden propeller. He says he originally made the request in 1998. While neither CASA nor the applicant have a copy of the original application or certification, there is some evidence of the decision-making process commencing – but then it petered out. That is a problem because the regulations governing certification changed in 1998. The new rules do not appear to permit the applicant to obtain the necessary approvals for the propeller because they refer to different standards which the applicant cannot now satisfy. The applicant claims there was a reviewable decision notwithstanding the absence of a response from CASA, and that the correct or preferable decision is for CASA (or the Tribunal on review) to rely on transitional provisions in the regulations to grant an approval having regard to the old standards.

2. CASA denied there was a reviewable decision, and argued in the alternative that the matter should be dismissed on the basis the application has no utility or prospects of success even if there was a reviewable decision. CASA says the applicant can no longer rely on the old standards and insists the transitional provisions in the regulations do not assist. It says the applicant should instead file a fresh application under the new regulatory regime, something the applicant is reluctant to do.

3. An interlocutory hearing was held by telephone on 13 August 2019 at which the questions of jurisdiction and prospects of success were discussed. I am satisfied that, even if the applicant is able to identify a reviewable decision, the Tribunal is unable to provide meaningful relief and the matter should be dismissed pursuant to s 42B(1) of the Administrative Appeals Tribunal Act 1975. I explain my reasons below.

   The legislative regime and the transitional provisions

4. The applicant applied for certification of the wooden propeller on 14 July 1998. No application form was found in the records of either the applicant or CASA. But a copy of a covering letter from the applicant requesting that its application be considered was produced by the applicant. The applicant had sought the issuing of a Certificate of Type Approval (CTA) in respect of the A68 wooden propeller under regulation 22 of the Civil Aviation Regulations 1988 (CAR88) as they then were. Regulation 22 provided that CASA is to issue a CTA upon application and after it is satisfied certain conditions were met. For whatever reason, no CTA was ever issued to the applicant.

5. On 1 October 1998, the certification regime for aircraft and aircraft components was amended as part of broad changes to civil aviation safety laws in Australia. The Civil Aviation Safety Regulations 1998 (the CASR – the Civil Aviation Regulations 1998 until December 2002) introduced, among other things, requirements for the issue of Type Certificates (TC). These new regulations displaced the certification process under the old CTA regime. The new regulations deal with aircraft propellers under regulation 21.021. Regulation 21.017 requires an application for a TC under regulation 21.021 must comply with the airworthiness standards set out in Part 35. Regulation 35.001 sets out the airworthiness standards for propellers as being either the standards set out in Part 35 of the US Federal Aviation Regulations (FARs), or the standards set out in the European Union Aviation Safety Agency Certification Specification for Propellers (EASA CS-P). Because the A68 propeller had specification standards issued by the British aviation agency, it would be unable to comply with the present requirements for a TC. The applicant would need to demonstrate compliance with either of the new standards to satisfy the conditions to be issued a TC.

6. The applicant contends that the new regime for TCs should not apply to him because of the operation of transitional provisions. Sub-regulation 313(6) provides that applications pending before CASA at the time the new regime came into effect on 1 October 1998 would be dealt with as if the original regulations were in force (i.e. under Regulation 22 of the CAR88). Sub-regulation 313(7) deals with aircraft engines and propellers. It is set out below as it appeared in the CAR 1998 (CASR when first introduced).

   (7)CAR 1998 applies to a certificate of type approval for an aircraft, or an aircraft engine or propeller, issued under these regulations on an application mentioned in subregulation (6) as if it were a type certificate issued under regulation 21.13A or 21.29 of CAR 1998, or a type acceptance certificate issued under regulation 21.29A of CAR 1998.

7. The applicant argues the provision compels CASA to decide its application under the old CTA regime. It says that sub-regulation 313(7) has the effect of requiring CASA to issue a TC for any pending engine or propeller CTA approved after 1 October 1998. I cannot accept that reading of sub-regulation 313(7). The reference to the CAR 1998 (the CASR as it was then known) make it clear that the transitional provisions do not apply to aircraft engines and propellers in the same way as for other applications for CTAs. Instead, the new CAR 1998 (CASR) requirements were intended to be applied to the certification of propellers and engines. This is further made clear in sub-regulation 313(8), which carves out a specific exception for aircraft engines and propellers in relation to the application of the original regulations. That is, while the original regulations apply to CTA applications pending when the new regulation came into effect, this would not be the case for CTA applications pending for engines and propellers.

   (8)The original regulations apply as if they were still in force to a certificate of type approval for an aircraft component (other than an aircraft engine or propeller) issued on an application mentioned in subregulation (6).

8. In any event, sub-regulation 313(7) has since been removed from CAR88, with sub-regulations 313(6) and (8) expressly noting the transitional provisions apply to aircraft components ‘other than an aircraft engine or propeller’. In either case, the transitional provisions do not apply to the certification of aircraft propeller. The effect of the removal of sub-regulation 313(7) is that for CASA to make a decision on the application for the certification of the A68 propeller, the applicant must make a fresh application. CASA no longer has the power to decide applications for CTAs for propellers under the new regime.

9. Even if I accept there was a reviewable decision, I cannot do anything about it at this juncture. I do not need to express a concluded view about whether CASA was at fault in the way it handled the original application for approval. CASA is unable to issue a CTA or TC for a propeller in accordance with an application made under the original regulations. Because CASA, and by extension the Tribunal on review, cannot give the applicant what it wants, the powers under s 42B of the AAT Act become relevant. The discretion to dismiss under s 42B is engaged where the Tribunal is satisfied the proceeding:

   (a)is frivolous, vexatious, misconceived or lacking in substance; or

   (b)has no reasonable prospect of success; or

   (c)is otherwise an abuse of the process of the Tribunal.

10. These proceedings are misconceived and lack substance within the meaning of s 42B(1)(a) in that the Tribunal cannot provide the remedy the applicant seeks. The Tribunal’s hands are tied by the legislation; the outcome is clear and the prospects of success are effectively zero. That means the grounds for dismissal in s 42B(1)(b) are also made out.

    CONCLUSION

11. It is unclear whether the applicant ever made a valid application for a CTA prior to 1 October 1998. Even assuming that a valid application was made, in light of the legislative changes to the registration regime and the specific exclusion of propellers from the transitional provisions, a CTA cannot be able to be issued. I am satisfied the application has no prospects of success and should be dismissed under s 42B of the AAT Act.

I certify that the preceding 10 (ten) paragraphs are a true copy of the reasons for the decision herein of Deputy President Bernard J McCabe

....................................[sgd]....................................

Associate

Dated: 13 January 2020

Date(s) of hearing:	13 August 2019
Date final submissions received:	23 August 2019
Applicant:	By phone
Solicitors for the Respondent:	Mr A Carter, CASA