Mark Scott Sullivan and Civil Aviation Safety Authority
[2012] AATA 827
•22 November 2012
[2012] AATA 827
Division GENERAL ADMINISTRATIVE DIVISION File Number
2012/0792
Re
Mark Scott Sullivan
APPLICANT
And
Civil Aviation Safety Authority
RESPONDENT
DECISION
Tribunal Deputy President PE Hack SC
Date 22 November 2012 Place Brisbane The Tribunal declines to make the decision sought by the applicant.
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Deputy President PE Hack SC
CATCHWORDS
CIVIL AVIATION – cancellation of commercial pilot (helicopter) licence – preliminary arguments – applicant seeking to have decision under review set aside summarily – whether CASA lacked power to make cancellation decision – whether cancellation decision was exhausted by court order of suspension – decision sought by applicant declined.
LEGISLATION
Civil Aviation Regulations 1988 (Cth) r 269
CASES
Shi v Migration Agents Registration Authority [2008] HCA 31; (2008) 235 CLR 286
Re Power & CASA [2007] AATA 1328; (2007) 95 ALD 413 at [77]
REASONS FOR DECISION
Deputy President PE Hack SC
22 November 2012
The applicant, Mr Mark Sullivan, is an experienced helicopter pilot. On 30 March 2010 Mr Sullivan was the pilot in command of a Robinson R 44 helicopter, VH-HCQ, which crashed on take-off at Flying Fox Station in the Northern Territory. The respondent, the Civil Aviation Safety Authority (CASA) undertook an investigation into that crash and its aftermath.
That investigation resulted in an employee of CASA, in September 2011, laying an information in the criminal courts of the Northern Territory which alleged that Mr Sullivan was guilty of six offences against the Criminal Code (Cth), the Civil Aviation Act 1988 (Cth) or the Civil Aviation Regulations 1988 (Cth). The charges laid were in the following terms[1],
[1] I have taken the wording from the applicant’s submissions in this application.
1.On or about 30 March 2010, at or around Flying Fox Station at Roper Highway, Mataranka in the Northern Territory of Australia, did as a member of the operations personnel of an operator, namely Heli Australia Pty Limited, fail to comply with all instructions contained in the Operations Manual, in so far as they related to his duties or activities, in that he loaded and/or authorised the loading of a generator, weighing in excess of 77 kg, on an unoccupied passenger seat, in the Robinson R 44 Helicopter Registration VH – HCQ and further, the generator was only restrained by a seatbelt.
Contrary to r 215(9), Civil Aviation Regulations
2.On or about 30 March 2010, at or around Flying Fox Station at Roper Highway, Mataranka in the Northern Territory of Australia, did as a member of the operations personnel of an operator, namely Heli Australia Pty Limited, fail to comply with all instructions contained in the Operations Manual, in so far as they related to his duties or activities, in that he loaded and/or authorised the loading of two (2) 20 litre jerry cans of fuel in the cargo pods of the said helicopter.
Contrary to r 215(9), Civil Aviation Regulations
3.On or about 30 March 2010, at or around Flying Fox Station at Roper Highway, Mataranka in the Northern Territory of Australia, did as the pilot in command of an aircraft allow the aircraft to take off when its gross weight exceeded its maximum take-off weight.
Contrary to r 235(4), Civil Aviation Regulations
4.On or about 30 March 2010, at or around Flying Fox Station at Roper Highway, Mataranka in the Northern Territory of Australia, did give information, namely the Aviation Accident or Incident Notification Report to another person, namely the Australian Transport Safety Bureau, knowing that the information was false or misleading, and the information was given in compliance or purported compliance with the law of the Commonwealth, namely section 19 of the Transport Safety Investigations Act 2003.
Contrary to s 137.1(1), Criminal Code
5.On or about 30 March 2010, at or around Flying Fox Station at Roper Highway, Mataranka in the Northern Territory of Australia, did as pilot of the Robinson R 44 Helicopter Registration VH – HCQ, operate or permitted the aircraft to be operated and the operation of the aircraft resulted in the aircraft carrying dangerous goods not in accordance with the regulations or with the written permission of the Civil Aviation Safety Authority and in accordance with the conditions specified therein.
Contrary to s 23(1) and s 29(5), Civil Aviation Act
6.On or about 30 March 2010, at or around Flying Fox Station at Roper Highway, Mataranka in the Northern Territory of Australia, did operate an aircraft, namely the Robinson R 44 Helicopter Registration VH – HCQ, being reckless as to whether the manner of operation could endanger the life of another person or persons, namely Alan Mole and Leslie Smale.
In addition, on 3 January 2012, a delegate of CASA, relying on the power in r 269(1) of the Civil Aviation Regulations, cancelled Mr Sullivan's Commercial Pilot (Helicopter) Licence. Mr Sullivan commenced these proceedings, by which he seeks a review of CASA's decision to cancel his licence, on 27 February 2012.
The hearing of the criminal proceedings commenced in the Darwin Court of Summary Jurisdiction in April 2012. On 23 May 2012, after considerable evidence had been given, Mr Sullivan pleaded guilty, on the basis of an agreed statement of facts, to charges 1, 4 and 5; the other three charges were withdrawn by the prosecutor and Mr Sullivan was discharged in relation to those charges. In respect of charge 1 Mr Sullivan was fined $1000, on charge 4 he was fined $5000 and on charge 5 he was sentenced to a term of imprisonment of three months but that term was suspended under section 21B of the Crimes Act 1914 (Cth) upon Mr Sullivan entering into a bond to be of good behaviour for period of 18 months. Additionally, the Court imposed upon Mr Sullivan, pursuant to s 30A of the Civil Aviation Act, an exclusion period of 12 months in respect of his Commercial Pilot (Helicopter) Licence.
I am presently concerned to deal with some preliminary arguments which Mr Sullivan says mean that the decision under review must be set aside; that, he says, is the only conclusion open to the Tribunal as a matter of law. As will appear, I do not agree. Subject to any application that Mr Sullivan may make to the Court, the matter should proceed to hearing in the normal way and be determined on its merits.
The first argument for Mr Sullivan is that CASA lacked the power to make the cancellation decision of 3 January 2012. To understand the argument it is necessary to have regard to the terms of r 269 of the Civil Aviation Regulations. It provides, so far as is presently relevant,
(1)Subject to this regulation, CASA may, by notice in writing served on the holder of an approval, authority, certificate or licence (an authorisation), vary, suspend or cancel the authorisation if CASA is satisfied that one or more of the following grounds exists, namely:
(a)that the holder of the authorisation has contravened, a provision of the Act or these regulations, including these regulations as in force by virtue of a law of a State;
(b)that the holder of the authorisation fails to satisfy, or to continue to satisfy, any requirement prescribed by, or specified under, these regulations in relation to the obtaining or holding of such an authorisation;
(c)that the holder of the authorisation has failed in his or her duty with respect to any matter affecting the safe navigation or operation of an aircraft;
(d) that the holder of the authorisation is not a fit and proper person to have the responsibilities and exercise and perform the functions and duties of a holder of such an authorisation;
(e) that the holder of the authorisation has contravened, a direction or instruction with respect to a matter affecting the safe navigation and operation of an aircraft, being a direction or instruction that is contained in Civil Aviation Orders.
(1A)CASA must not cancel an authorisation under subregulation (1) because of a contravention mentioned in paragraph (1) (a) unless:
(a)the holder of the authorisation has been convicted by a court of an offence against a provision of the Act or these Regulations (including these Regulations as in force by virtue of a law of a State) in respect of the contravention; or
(b) the person was charged before a court with an offence against a provision of the Act or these Regulations (including these Regulations as in force by virtue of a law of a State) in respect of the contravention and was found by the court to have committed the offence, but the court did not proceed to convict the person of the offence.
The argument for Mr Sullivan focuses upon r 269(1A) and the prohibition in it upon cancellation because of a contravention of a provision of the Civil Aviation Act or Civil Aviation Regulations unless the holder has been convicted by a court in respect of the contravention or has been found by the court to have committed the offence. When CASA “purported” to cancel the licence on 3 January 2012 neither of the conditions precedent in r 269(1A) had been satisfied with the result, so it is said, that CASA did not have jurisdiction to cancel Mr Sullivan's licence. And, it is said, the fact of the subsequent convictions “did not, and cannot, cure the invalidity of the decision”.
Having regard to the holding of the High Court in Shi v Migration Agents Registration Authority[2]I very much doubt the accuracy of that latter proposition. However I need not decide that question because, as it seems to me, the argument fails on the facts.
[2] [2008] HCA 31; (2008) 235 CLR 286.
CASA’s cancellation decision was evidenced by a lengthy letter of 3 January 2012 which set out in some detail findings of fact relating to the attempted take-off of HCQ on 30 March 2010 and events thereafter. Reference was made to various provisions of the Civil Aviation Act (referred to as the CAA) and the Civil Aviation Regulations (referred to as the CAR) said to have been breached by Mr Sullivan. Then reference was made in paragraph 48 to the terms of r 269(1) of the Civil Aviation Regulations. The letter continued,
49.On the basis of the findings set out above, I am satisfied that you attempted a take-off from Flying Fox Station on 30 March 2010 in a manner that was manifestly unsafe and reckless and in breach of multiple provisions of the CAR and the CAA.
50.I am satisfied that your conduct in this regard constituted a failure by you to adequately discharge your duty as a commercial pilot to conduct flying operations in accordance with the requirements of the aviation legislation and in a safe and professional manner. Your failure to adequately perform your duties in this regard had a catastrophic effect on the safe operation of the aircraft. I am therefore satisfied that the ground set out in r. 269(1)(c) is met in this case.
51.Along with an appropriate level of aeronautical skill and knowledge, the holder of an Australian flight Crew licence must be a person of honesty and integrity who demonstrates an appropriate attitude to compliance with his statutory obligations such that CASA can repose confidence in that person to diligently perform his duties and discharge his obligations as a pilot in an honest, lawful and safe manner.
52.On the basis of the findings set out above, I am not satisfied that you have the personal qualities of integrity and honesty necessary to be an Australian flight crew licence holder. I have also found that you have a contumelious attitude to compliance with requirements of the Australian aviation legislation. I am therefore not satisfied that CASA can repose any confidence in you to conduct your flying activities in a lawful manner. By reason of your failure to adequately discharge your duties as a pilot in your conduct of the take-off from Flying Fox Station, and by reason of the lack of honesty and integrity you have demonstrated in making a false report to the ATSB regarding the circumstances of the incident, I have concluded that you are not a fit and proper person to be the holder of a Commercial Pilot (Helicopter) Licence within the meaning of r. 269(1)(d) of the CAR.
DECISION
I am satisfied that the facts and circumstances described in this notice justify the cancellation of your Commercial Pilot (Helicopter) Licence number… on the grounds set out in CAR 269(1)(c) and (d). Accordingly, I have cancelled your Commercial Pilot (Helicopter) Licence number… with effect from the date of this notice.
The result is that CASA did not cancel Mr Sullivan's licence because he contravened a provision of the Civil Aviation Act or Civil Aviation Regulations; there is thus no question that it breached the prohibition in r 269(1A) and no question that its decision was invalid. It cancelled his licence because it concluded that his acts or omissions satisfied it that he had failed in his duty with respect to matters affecting the safe navigation or operation of his helicopter and because those acts or omissions demonstrated, so it was concluded, that he was not a fit and proper person to have the responsibilities and exercise and perform the functions and duties of the holder of such a licence. It is not to the point that those acts or omissions might, or did, become the basis of a successful prosecution.
Mr Anderson, counsel for Mr Sullivan, sought to overcome this difficulty by submitting that, despite CASA’s stated reliance on paragraphs (c) and (d) of r 269(1), the case was nonetheless one that involved contraventions of the Civil Aviation Act and the Civil Aviation Regulations. Where, as here, the underlying conduct relied upon as demonstrating satisfaction of paragraphs (c) or (d) of r 269(1) amounted to, or could amount to, one or more contraventions of the Civil Aviation Act or the Civil Aviation Regulations, a licence, certificate or authority could not be cancelled absent a conviction or a finding that an offence had been committed.
The difficulty with that submission, as Mr Harvey, counsel for CASA pointed out, is that it overlooks the structure of r 269. That regulation prescribes a mechanism for the variation, suspension or cancellation of a licence, certificate or authority. It requires the provision of notice of the facts and circumstances relied on by CASA and the provision of an opportunity to show cause, within a reasonable time, why action ought not be taken. Then CASA must determine whether it is satisfied that one or more of the matters in paragraphs (a) to (e) are made out. If it is so satisfied, the discretion to cancel, suspend or vary is enlivened, subject to the prohibition in r 269(1A). There is nothing about the context or language of r 269 or the statutory scheme more generally that would require conduct that might amount to a contravention to be considered under that head only and not form part of the wider considerations in r 269(1)(c) or (d).
I reject the proposition, implicit in Mr Sullivan’s argument, that CASA may not rely on conduct that would constitute a contravention of the Civil Aviation Act or the Civil Aviation Regulations as a basis of a cancellation decision where CASA is satisfied that the conduct demonstrates the matters in r 269(1)(c) or (d) unless those contraventions are established by a conviction or finding of guilt. The argument is contrary to the scheme of Part 16 of the Civil Aviation Regulations (in which r 269 is found) and has been rejected by the Tribunal[3].
[3] See Re Power & CASA [2007] AATA 1328; (2007) 95 ALD 413 at [77].
There is then, in my view, nothing in Mr Sullivan's first argument.
The second argument focuses upon the exclusion period imposed on Mr Sullivan in the criminal proceedings. The order imposing that suspension “superseded the [CASA] decision”[4]. The power of CASA to cancel the licence “was exhausted by the order of suspension made by the Court”[5]. Given that the cancellation power had been exercised prior to the order of the Court I have considerable difficulty in seeing how that could be so.
[4] Applicant’s outline of submissions, paragraph 25.
[5] Applicant’s outline of submissions, paragraph 32.
Viewed narrowly the argument is fundamentally flawed. The cancellation decision which is the subject matter of the proceedings in the Tribunal was made on 3 January 2012. It represents the present state of affairs. Subsequent to that decision the Court of Summary Jurisdiction imposed an exclusion period of 12 months from 24 May 2012. If nothing is done Mr Sullivan's licence remains cancelled at the end of the exclusion period. Unless the cancellation decision is set aside or varied by the Tribunal (and absent a successful challenge in the Court) the present state of affairs will continue. The argument has to be not only that the power to cancel the licence was exhausted but that the operation of the magistrate’s order was to retrospectively make invalid the original decision by CASA to cancel Mr Sullivan's licence. How that came about was never made clear to me.
But more broadly the argument must fail because it does not distinguish between an exclusion imposed as part of a sentence by a court exercising criminal jurisdiction and cancellation decision taken to protect the public interest in aviation safety. There is, to my mind, nothing inconsistent in the notion that the same conduct might found both criminal charges and a licence cancellation. For self-evident policy reasons the drafter of r 269 has concluded that where contraventions of the statute or regulations are the only basis for a cancellation decision the fact of contraventions ought be determined by a criminal court, to the criminal standard and in accordance with the usual safeguards of the criminal courts. But I do not accept the argument that Mr Sullivan advances that resort by CASA to the criminal courts, and the submission that a licence exclusion is warranted as part of the penalty imposed, can preclude the exercise of CASA’s power to cancel the licence, a fortiori after that power has been exercised.
Resort to notions of double punishment, res judicata or issue estoppel[6], with respect, miss the point. Mr Sullivan is not in jeopardy of being punished twice for the same conduct; he has been, and can only be, punished once. But the same conduct may also be relied upon to demonstrate that he failed in his duty with respect to matters affecting the safe navigation or operation of his helicopter or that he was not a fit and proper person to have the responsibilities and exercise and perform the functions and duties of the holder of a pilot licence. Mr Sullivan’s position is no different from that of many occupations where criminal conduct can be punished appropriately and be relied upon to demonstrate unfitness for office. There is nothing in the context or language of the legislation to suggest that a different scheme is intended for those who hold licences under the Civil Aviation Act.
[6] Applicant’s submissions, paragraphs [34] to [37].
The final argument for Mr Sullivan may be disposed of shortly. He submits that r 269, on its proper interpretation, is subject to an implied term that a decision to cancel a licence (or a decision to affirm such a cancellation) would be undertaken “reasonably in the Wednesbury sense”. That may be correct, but if it is it is not capable of summary determination; it is an argument for the hearing.
It follows that I decline to make a decision setting aside the decision under review. The matter will be listed in the New Year for directions regarding the conduct of the hearing.
I certify that the preceding 20 (twenty) paragraphs are a true copy of the reasons for the decision herein of Deputy President P E Hack SC.
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Associate
Dated 22 November 2012
Date of hearing 20 November 2012 Counsel for the Applicant Mr J Anderson Solicitors for the Applicant McMahon Broadhurst Glynn Counsel for the Respondent Mr I J Harvey Solicitors for the Respondent Civil Aviation Safety Authority In-house Litigation Team
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