McBain and Civil Aviation Safety Authority - [2001] AATA 811

DECISION AND REASONS FOR DECISION [2001] AATA 811

ADMINISTRATIVE APPEALS TRIBUNAL )

) No V01/1219

GENERAL ADMINISTRATIVE DIVISION       )
           Re      BERNARD ERIC McBAIN
  Applicant
           And    CIVIL AVIATION SAFETY AUTHORITY
  Respondent

DECISION

Tribunal Mrs Joan Dwyer, Senior Member Mr A Argent, Member

Date25 September 2001
PlaceMelbourne

Decision      The application for a stay is refused.
  (Sgd) Joan Dwyer
  Senior Member
CATCHWORDS
CIVIL AVIATION - Stay Application - cancellation of Commercial Helicopter Pilot's licence - operational manager of company providing helicopters and pilots for fish spotting operations – breaches of Civil Aviation Act and Civil Aviation Regulations – whether hearing nugatory if no stay granted – whether a stay is desirable – air safety issues - stay refused.
Administrative Appeals Tribunal Act 1975 – ss 37, 41(2)
Civil Aviation Act 1998 ss 20AA(4), 27
Civil Aviation Regulations 1998 – reg 269

REASONS FOR DECISION

25 September 2001 Mrs Joan Dwyer, Senior Member Mr A Argent, Member

This is an application under s.41(2) of the Administrative Appeals Tribunal Act 1975 for a stay of a decision made on 22 August 2001, cancelling Mr McBain's Commercial Pilot (Helicopter) Licence ARN 404564 pursuant to Regulation 269 of the Civil Aviation Regulations 1998 ("the Regulations"). It is the second such application. The first was made and heard in Queensland and refused by Senior Member Muller on 13 September 2001.
Mr McBain appeared and gave evidence. Mr Anastasi a solicitor with the Civil Aviation Safety Authority ("CASA") appeared for the respondent.
The Tribunal had before it the documents ("the T documents") lodged pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 ("the AAT Act") and two affidavits of Mr Charles, sworn 29 August and 5 September 2001 and two facsimiles from Mr McBain received by the Tribunal on 21 September (7 pages) and 24 September 2001 (15 pages).
At all times relevant to this review Mr McBain was the Operations Manager of McBain Holdings Pty Ltd (the company). The company was the owner of four helicopters. During the relevant period, January 1999 to September 2000, the company provided pilots and helicopters to Taiwanese fishing vessels in the western Pacific Ocean, for fish spotting operations.
The company undertook the fish spotting operations without being the holder of an air operator's certificate ("AOC") for aerial work. Mr McBain agreed that such a certificate was required. (see s 27 of the Civil Aviation Act 1988) ("the Act").
The alleged breaches are summarised in the decision under review (T3 pp4-15). In substance they consist of breaches of the Act and Regulations requiring the holding of an AOC and requiring that only qualified people perform maintenance of aircraft and that appropriate documentation be maintained. The decision under review summarised the matter as follows:
"32.I am satisfied that you created a serious aviation safety risk by flouting the applicable law in sending out young inexperienced pilots to fly in unregistered helicopters, without an AOC, maintenance releases, aircraft log books, with unauthorised maintenance being carried out on such helicopters, and in a harsh flying environment, over water and a long way from land."
Mr McBain said that the pilots were not "young" and some were not inexperienced. However he did not answer the factual allegations other than to say that he believed the pilots were licensed by CASA to carry out maintenance, and that maintenance releases were in existence, although he could not produce them. The T documents included a vast amount of detailed material prepared by three pilots who were employed by the Company. A number of faxes to Mr McBain or notes in diaries and work sheets relate to pilots' concern about maintenance issues. Two of Mr McBain's responses are set out in paragraph 18 of the decision under review:
"18.Examples of instructions provided by you to the pilots concerning maintenance of the aircraft are as follows:
(i)In response to a request from Colin Nordstrom for information concerning proposed repairs to the tail rotor transmission of VH-MBM you sent him a fascimile transmission from the Airways Hotel Port Moresby, New Guinea on 28 October 1999 as follows:
'Nord. Why in the fucking hell are you changing the T/R gearbox. I have had no reports of chip lights or any other problem. You have a maintenance problem. You have a maintenance manual on the boat. Change it as per the F/M instructions. You get paid big money for being out there so now you need to fix it. No fly no pay. What's wrong with it. How many chip lights have you had. Tell me the problem. My fax tomorrow afternoon is PNG (75) 9821767 Attn: Bernie Mc. Let me know what's wrong with it. Thanks for 2 minutes notice.'
(ii)In a fascimile transmission on the company letterhead dated 7 December 1999 addressed to Jim Benbow you stated:
'As of February 2000 all pilots will be on performance contracts. They must supply own tools. Any corrosion they will have to pay for the supply and repair. Machine not kept flying for some other reason than mechanical they will not be paid (not fixing helicopter because they are to lazy) any parts lost, damaged or stolen then the pilot on this boat will have to pay for them.'"
Senior Member Muller in his decision refusing a stay on 13 September 2001 said:
If the facts contained in the statements are true, the company conducted its operations in serious breach of Australian standards of safety as defined by the relevant legislation and regulations.

We agree with that comment.

Senior Member Muller in his decision of 13 September 2001 set out the history as follows:
9.The applicant had been issued with a "show cause" notice on 21 February 2001. The notice contained 23 paragraphs of facts and incidents which on their face appear to involve breaches of the rules relating to the proper and safe running of an air operation.
10.On 8 June 2001, an informal conference was held in Townsville between representatives of CASA and the applicant and his solicitor. At that conference the applicant was given the opportunity to respond to the various allegations of unsafe practices which had been made against him. Although the conference was reasonably lengthy and all parties had plenty to say, nothing of any substance was achieved, except that the applicant asserted that he had significant documentary evidence to assist his case. The representatives of CASA gave him 7 days from the date of the conference to produce documentary material.
11.There is nothing in the section 37 statement to suggest that any further information was provided by the applicant to CASA prior to the date of the decision to cancel the applicant's licence.
12.To support this application for a stay, the applicant's solicitor, Shane Paul Charles, has filed two affidavits, one dated 29 August 2001 and the other dated 5 September 2001. The combined effect of the two affidavits makes the following points:
(i)Mr McBain is currently residing in Darwin and has full-time employment with a helicopter company there. Employment opportunities in the field are limited.
(ii)Mr McBain ceased operating the business of McBain Holdings Pty Ltd in or about October 2000.
(iii)Mr McBain is 33 years of age and has been flying for about 15 years.
(iv)Mr McBain has no qualifications for work other than those in the air industry.
(v)Mr McBain has no other source of income.
(vi)Mr McBain is no longer the operator of a business which employs pilots. He is not in charge of employees. On the contrary, he is now subject to the control of his employer.
(vii)The allegations made against Mr McBain are largely unfounded and untrue.
(viii)If he is unable to earn a living, Mr McBain will not be able to afford legal representation to present his case. He will need legal assistance because of the complex nature of the case.
(ix)Should a stay be granted, Mr McBain undertakes not to carry on a business, either alone or in a partnership, as the operator of an aircraft, and he is prepared to submit to any conditions on his licence which the Tribunal may see fit to impose.
Senior Member Muller concluded
13.There is no evidence before the Tribunal that Mr McBain is medically unfit or incompetent to pilot helicopters or fixed wing planes. It is alleged that Mr McBain has engaged in conduct which amounts to contempt for the regulations relating to the safe commercial operation of helicopters. If the allegations are true there is no scope for an eventual finding that Mr McBain was forgetful, too trusting of his pilots, disorganised or even slightly negligent. The allegations are that he deliberately flouted the rules.
14.No statement, document or acceptable piece of evidence of any description has been put before CASA by the applicant to refute the allegations made against him.
15.The Tribunal is not satisfied that the applicant has no capacity to earn an income outside of flying helicopters pending the outcome of this review. The Tribunal is satisfied that since the company for which the applicant was operations manager has ceased the operation, there will be no irreparable harm done to anyone, should the stay not be granted.
16.On the material currently before the Tribunal the applicant appears to be a person who has an unacceptable attitude towards the rules relating to the safe operation of helicopters. The safety of aircraft operation is a matter of paramount importance in the administration of the Civil Aviation Regulations. It over-rides the personal discomfort felt by the applicant.
17.On balance, the application should be refused and I order accordingly.
When the matter came before the Tribunal today, Mr McBain had lodged further material. This consisted of material as to financial circumstances and a statement from Mr Jarrod Michael, a pilot who was employed by the Company from August 12999 to October 2000. Mr Michael challenged some of the statements made by the three pilots relied on by CASA, but even his statement reveals possible breaches of the Regulation. Mr Michael says he never flew without a maintenance release in force, but the copy maintenance release supplied only covers the period 19 January 2000 to a date which is illegible but looks like 17 March 2000 or maybe 17 July 2000. Mr Michael does not address the issue of maintenance work being done by pilots without appropriate certificates to perform maintenance work. Further, Mr Michael can only speak about the documents on the helicopters he flew. He says he does not believe he was "the exception to the rule".
On the other hand the pilots who made statements to CASA do state that one of the helicopters Mr Michael flew did have appropriate documentation at least for a time, but the others did not. Further, Mr McBain did not dispute that one of the helicopters was without an aircraft log book. He said it had been taken by a previous pilot and it would have been too time consuming to start a new log book when the new pilot took over.
The relevant legislative provisions are found in CAR 269 which provides so far as relevant:
269. (1) Subject to this regulation, CASA may, by notice in writing served on the holder of a licence or certificate or an authority, vary, suspend or cancel the licence, certificate or authority where CASA is satisfied that one or more of the following grounds exists, namely:
(a) that the holder of the licence, certificate or authority 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 licence, certificate or authority 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 a licence or certificate or an authority;
(c) that the holder of the licence, certificate or authority has failed in his or her duty with respect to any matter affecting the safe or efficient navigation or operation of an aircraft;
(d) that the holder of the licence, certificate or authority is not a fit and proper person to have the responsibilities and exercise and perform the functions and duties of a holder of such a licence or certificate or an authority; or
(e) that the holder of the licence, certificate or authority 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.
CASA in its decision relied on Reg 269(1)(a) and (d). We are surprised that Reg 269(1)(c) was not also specified.
is a stay required to secure the effectiveness of the hearing and determination of the application for review?
Mr Anastasi submitted that it is only, "where, absent a stay, the review hearing would be rendered nugatory," that the Tribunal is empowered to grant a stay. That appears to be the effect of s 41(2) of the AAT Act.
As Mr McBain's license has been cancelled, not merely suspended, the hearing will not be rendered nugatory if no stay is granted. There will still be a live issue as to whether the cancellation should be set aside or varied.
Mr McBain seemed to be suggesting that if he did not obtain a stay he would have to declare himself bankrupt and the hearing would be rendered nugatory in the sense that he would no longer be able to go on flying. We do not accept that the hearing would be rendered nugatory because of financial hardship. If Mr McBain succeeded on the hearing he could resume his career as a pilot.
There is therefore a real question whether we have power to grant a stay. However having heard from the parties we consider it appropriate to give reasons as to why we are not satisfied that the grant of a stay would be desirable.
would a stay be desirable?
Where a stay is sought in a civil aviation matter, the issue of air safety must, in our view, be the paramount consideration. Re Ramsay v Department of Transport (1977) 2 ALD 97.
Mr McBain submitted that there would be no risk to air safety if the cancellation of his license were to be stayed until the hearing of the substantive matter. He said, if he were free to fly he would be flying as an employee of a company which has a Chief Pilot and would be subject to the Chief Pilot and to the Company's Operations Manual.
From the evidence Mr McBain gave, we find that he would be detached from Darwin and based at Gove if he were free to fly for the company by which he is now employed. He said the Chief Pilot is based at Moorabbin and he (Mr McBain) would work directly under the supervision of an Operations Manager based at Darwin. He would be operating by himself at Gove and there is no Licensed Aircraft Mechanical Engineer (LAME) at Gove.
The Tribunal is aware that Gove is a considerable distance east of Darwin and that Mr McBain would be there on his own. The evidence in the T documents, and Mr McBain's evidence at the hearing today leaves us with considerable doubt as to whether Mr McBain would comply with the Regulations.
We were troubled by the evidence Mr McBain gave. He appeared to put very little weight on the admitted breaches of the Act and Regulations. It seemed much more important to him to denigrate the pilots who made the statements relied on by CASA. That approach did not give us the impression that Mr McBain appreciated the seriousness of his breaches of the Act and Regulations. They include operating without an AOC, allowing pilots who are not licensed for that purpose to perform maintenance on aircraft, failing to ensure that log books are maintained (see T docs p65), and that maintenance releases entered as required. Mr McBain seemed not to recognise the safety implications of these matters and of the entries in the pilots' work sheets and statements (see for example T docs pp145-147 and pp194-195). We would have found Mr McBain's evidence more persuasive if he had addressed the issues which are raised in the material, some of which he did not dispute, rather than simply denigrate the pilots who he formerly employed.
The evidence did not raise a prima facie case that the allegations about the breaches of the regulations are without foundation. Nor did it establish a prima facie case that Mr McBain has satisfactory explanations for the breaches of the Regulations. A decision as to whether cancellation of his license is appropriate cannot be made without hearing his evidence and the evidence from CASA which would have to be called on the full hearing of this matter. The matters raised in considerable detail in the T documents are in our view serious matters.
Justice Ryan in McPherson v Civil Aviation Authority (1991) 22 ALD 754 said:
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.

One Member of the Tribunal, Mr Argent, has an aviation background. We agree with the views of Ryan J and consider they apply to this matter. Mr McBain is hoping to fly helicopters for Telstra. CASA has decided to cancel his licence. It would require a strong prima facie case to find on a stay application that the view of CASA that his licence should be cancelled was erroneous. Mr McBain has not presented evidence of that nature.
conclusion

We recognise there is hardship to Mr McBain in him being unable to continue flying commercially prior to the substantive hearing of this matter. On the other hand we are not satisfied at this stage that there is a prima facie case that he is a fit and proper person to fly a helicopter commercially. We must balance his interests and those of the community which has an interest in air safety.
The Tribunal said in Re Griffiths Grif – Air Helicopters Pty Ltd and Civil Aviation Authority (1993) 31 ALD 380 at p386:
(58) There is a public interest in ensuring that air safety procedures are followed in the civil aviation industry. That concern extends to those on the ground and to those who are passengers, whether as pilots or otherwise…
(59) Taking all of these matters into account, we consider that it is not desirable to grant the request for a stay. Any hardship to Mr Griffiths and Grif-Air as a result of our decision does not outweigh the public interest in air safety when considered against our conclusions as to his failure to establish a prima facie case at this stage. In our view, the application for review will not be rendered ineffective by our decision.
Similarly in this matter we consider it is not desirable to grant the request for a stay. We hope that a prompt hearing of the substantive issue can be arranged, however there is no point in having such a hearing until Mr McBain has gathered and exchanged all the relevant material on which he intends to rely.
The application for a stay of the cancellation decision is refused.
I certify that the 29 preceding paragraphs are a true copy of the reasons for the decision herein of Mrs Joan Dwyer, Senior Member and Mr A Argent, Member
Signed:         Grace Carney
  Associate
Date/s of Hearing  25 September 2001
Date of Decision  25 September 2001
Counsel for the Applicant        Nil
Solicitor for Applicant               Self Represented
Counsel for the Respondent    Nil
Solicitor for the Respondent    Mr A Anastasi