McBain and Civil Aviation Safety Authority - [2001] AATA 784

DECISION AND REASONS FOR DECISION [2001] AATA 784

ADMINISTRATIVE APPEALS TRIBUNAL )

) No Q2001/774

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

DECISION

Tribunal D W MULLER (Senior Member)

Date13 September 2001
PlaceBrisbane

Decision The application to stay the operation or implementation of the decision under review is refused.
..............................................

D W MULLER
Senior Member
CATCHWORDS
CIVIL AVIATION - Stay Application - cancellation of Commercial Helicopter Pilot's licence - operational manager - maintenance - log books - whether serious risk to air safety - stay refused.

Administrative Appeals Tribunal Act 1975 – ss 37, 41(2)
The Civil Aviation Regulations 1998 – reg 269

REASONS FOR DECISION

D W MULLER , Senior Member

The applicant seeks an order under s.41(2) of the Administrative Appeals Tribunal Act 1975 staying a decision dated 22 August 2001, to cancel the applicant's Commercial Pilot (Helicopter) Licence ARN 404564 pursuant to Regulation 269 of The Civil Aviation Regulations 1998.
At all times relevant to this review the applicant carried out the duties of Operations Manager of McBain Holdings Pty Ltd (the company). The company was the registered holder of certificates of registration in respect of four helicopters.
During the relevant period, January 1999 to September 2000, the company was employed by the owners of Chinese fishing vessels, operating in the western Pacific Ocean, for commercial fish spotting operations.
The company employed at least five pilots to fly the company helicopters and to carry out the fish spotting operations.
The company undertook the said fish spotting operations without being the holder of an aerial work purposes AOC.
The list of alleged breaches is long. A convenient summary is to be found in paragraph 32 of the decision under review:
"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."
Examples of incidents which indicate the alleged breaches occurred are set out in paragraph 18 of the decision.
"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.'"
The section 37 statement contains statements from former employee pilots. 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.
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.
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.
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.
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.
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.
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.
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.
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.
On balance, the application should be refused and I order accordingly.
I certify that the seventeen preceding paragraphs are a true copy of the reasons for the decision herein of D W Muller (Senior Member)
Signed:         .................................................................
  Associate
Date of Hearing                  5 September 2001
Date of Decision                  13 September 2001
Counsel for the Applicant                        Mr Derrington
Solicitor for the Applicant                         Bernays & Bernays
Solicitor for the Respondent                   Mr A Anastasi