Merridew and Civil Aviation Safety Authority
[2010] AATA 951
•11 November 2010
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2010] AATA 951
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2010/4335
GENERAL ADMINISTRATIVE DIVISION ) Re JONATHAN MERRIDEW Applicant
And
CIVIL AVIATION SAFETY AUTHORITY
Respondent
INTERLOCUTORY DECISION
Tribunal Mr Egon Fice, Senior Member Date11 November 2010
PlaceMelbourne
Decision The Tribunal refuses to grant a stay of the decision made by CASA on 1 October 2010 [sgd] Egon Fice
Senior Member
STAY – charter flight – below lowest safe altitude – instrument flight rules – Command Instrument Rating – Commercial Pilot (Aeroplane) Licence – prospects of success in the substantive application – prejudice to others whose interests may be affected – safety of air navigation – visual flight rules – flight test for Command Instrument Rating – failed Command Instrument Rating test
Administrative Appeal Tribunal Act 1975 s 41(2)
Civil Aviation Act 1988 ss 9A(1), 20A, 31A
Civil Aviation Regulation 1988 - 5.13, 178(2), 265, 265(1)(a), 265(2), 265(3), 269, 269(3)
Re McKenzie v CASA [2008] AATA 651
REASONS FOR INTERLOCUTORY DECISION
29 November 2010 Mr Egon Fice, Senior Member 1. On 16 July 2010 Mr Jonathan Merridew was a pilot in command of a twin engine Beechcraft E95 aeroplane on a charter flight from Lilydale to overfly Carrum and Albert Park before returning to Lilydale. The flight, conducted at night, had been planned under the instrument flight rules (IFR). Mr Merridew planned the flight at 3,000 feet.
2. Mr Merridew departed Lilydale and duly climbed to his planned level of 3,000 feet.
3. At some point in the flight, which was not clear on the evidence, but prior to overflying Mt Dandenong which has an elevation of 2,500 feet, Mr Merridew was advised by Melbourne Air Traffic Control (ATC) that his planned level was below the radar lowest safe altitude (LSALT) which was 3,600 feet. According to the Civil Aviation Safety Authority, (CASA) Mr Merridew advised ATC that he calculated a LSALT of 3,000 feet. However, this was in dispute as Mr Merridew said in evidence given by telephone that he had a discussion with the controller indicating that he had the towers on top of Mt Dandenong visual. According to CASA, ATC then told Mr Merridew that he was overflying Mt Dandenong and Mr Merridew confirmed that he had the mountain visual. There was no dispute about the fact that Mr Merridew overflew Mt Dandenong at an altitude which was below LSALT for an IFR flight. In fact, there was no disagreement about the fact that Mr Merridew cleared the obstacles on Mt Dandenong by some 430 feet.
4. CASA investigated Mr Merridew’s flight and in doing so, considered copies of his flight plan, a transcript of the communications he had with ATC and a copy of the radar trace of his flight on that day, 16 July 2010. Those materials were not before me on this application.
5. On the facts I have set out above, CASA reached the view that Mr Merridew as pilot in command had breached a Civil Aviation Regulation 1988 (CAR) 178(2) and that he had operated an aircraft in a reckless manner which could endanger the life or property of another person, contrary to the Civil Aviation Act 1988 (CA Act), s 20A. Having made those findings, CASA concluded that Mr Merridew did not possess the aeronautical skills and aeronautical knowledge required of him as the holder of Commercial Pilot (Aeroplane) Licence (CP(A)L) and a Command Instrument Rating (CIR), particularly in relation to flight planning.
6. In a decision dated 1 October 2010, CASA notified Mr Merridew that pursuant to CAR 265(1)(a), his CP(A)L; his CIR and Private (single engine aeroplane) Instrument Rating were suspended pending re-examination. CASA required Mr Merridew to pass the following tests:
(a)flight test for the initial issue of a CP(A)L and
(b)flight test for the initial issue of a CIR
7. On 7 October 2010 Mr Merridew lodged an application with the Tribunal seeking review of CASA’s decision of 1 October 2010. On the same day, Mr Merridew lodged an application under s 41(2) of the Administrative Appeal Tribunal Act 1975 (AAT Act) seeking a Stay of CASA’s decision of 1 October 2010.
8. I heard this application on 11 November 2010 by telephone. At the conclusion of the hearing, I gave an oral decision and reasons for the decision, refusing to grant the orders sought by Mr Merridew. On the following day, Ms Carol Swain, a principal lawyer with the legal branch of CASA, telephoned the Tribunal and asked that it be provided with reasons for my decision in writing. These are those reasons.
TRIBUNAL’S POWER TO ORDER A STAY
9. The operation of the decision made by CASA to suspend Mr Merridew’s CP(A)L and CIR is not affected by reason of his application to this Tribunal. The only means by which the operation or implementation of that decision can be stayed is by an order made under s 41(2) of the AAT Act, which provides:
(2) The Tribunal may, on request being made, as prescribed, by a party to a proceeding before the Tribunal (in this section referred to as the relevant proceeding), if the Tribunal is of the opinion that it is desirable to do so after taking into account the interests of any persons who may be affected by the review, make such order or orders staying or otherwise affecting the operation or implementation of the decision to which the relevant proceeding relates or a part of that decision as the Tribunal considers appropriate for the purpose of securing the effectiveness of the hearing and determination of the application for review.
10. Mr Merridew gave evidence by telephone stating that the business for which he conducted charter flying was a small family business run by his father, who is 75 years of age. However, Mr Merridew said that his role in the company, which runs the flying school business, was that of a contract pilot employee. Other than assisting his father in the business, I did not understand him to have any financial interest in the company operating the flying school. He said that the flying school engaged a chief pilot together with himself and that if he were not available for charter flying, the business would suffer considerable financial hardship. He said that it was not possible to get other qualified charter pilots to do the flying, particularly at this time of the year. Mr Merridew said there were some 22 aircraft at the flying school, most of which were used for flying training operations. He said that there were a number of instructor pilots available to the flying school to conduct that work, although he was somewhat equivocal about whether any of those instructor pilots would be available to fly charter work.
11. There was no documentary evidence before me at all to support anything which Mr Merridew said about the operations of the Lilydale Flying School, and his involvement in that organisation. From the oral evidence of Mr Merridew, which, with respect, was equivocal at times, I have no basis upon which to make a finding that, if the operation of CASA’s decision made on 1 October 2010 were not stayed, the effectiveness of the hearing and determination of the application for review would be impaired. For that reason alone, I decided that this was not an appropriate case in which to exercise the powers of the Tribunal under s 41(2) of the AAT Act.
12. In case I am wrong about my decision regarding s 41(2) of the AAT Act, I also considered a number of other factors which are relevant to the grant of a stay in these circumstances. They included:
(a)Mr Merridew’s prospects of success in the substantive application;
(b)the prejudice to others whose interests may be affected by the review; and
(c)the safety of air navigation.
13. As to the prospects of success, while I am acutely aware that this process does not require a mini trial of the issues, the only evidence before me on the issues about flying below LSALT on 16 July 2010 was the evidence given by Mr Merridew by telephone. CASA simply relied on submissions made in writing and lodged with the Tribunal. Although CASA mentioned that it had examined the transcript of Mr Merridew’s communications with ATC as well as a radar trace of Mr Merridew’s track on that flight, none of this material was before me. Further, Mr Merridew did not agree with what CASA said about the conversations he had with ATC regarding the LSALT on the route he flew that night. Quite clearly, I do not have sufficient evidence before me to form any preliminary views about prospects of success. I did not have a copy of the terminal area chart supporting the LSALT track between Lilydale and Carrum or the visual terminal chart indicating the spot height of Mt Dandenong. Not having sufficient material to form even a preliminary view about prospects of success, I declined to do so.
14. The only evidence I had of prejudice to other parties whose interests might be affected by the Tribunal’s review of decision was the statement of Mr Merridew regarding his father’s flying business. As I have already said, some of that evidence was equivocal and it appeared to me that the bulk of flying operations, which involved flying training, would not be affected. The extent to which charter operations would be affected was unclear. While there was some suggestion that there would be a significant adverse affect on his father’s business, I accept that there will, inevitably, be some effect but I cannot determine its extent.
15. In cases such as this, the adverse affects on the safety of air navigation are clearly paramount. This is plainly expressed in s 9A(1) of the CA Act. Mr John Ribbands of counsel, who appeared on behalf of Mr Merridew, submitted that the test which should be applied in respect of the safety of air navigation is that which was stated by Deputy President Hack in Re McKenzie v CASA [2008] AATA 651 where he said:
[is] whether the grant of a stay will create a real, as distinct from fanciful, risk that the safety of air navigation will be compromised and passengers, staff or other persons put at risk.
16. There is an additional factor which must be taken into account when determining the affect on the safety of air navigation in this case. On 3 November 2010, Mr Merridew undertook a flight test for the initial issue of a CIR. Although CASA agreed to conduct the flight test for the initial issue of a CIR together with the flight test for the initial issue of a CP(A)L, Mr Merridew said he declined to do the flight test for the initial issue of the CP(A)L because, as I understood it, he considered himself to have held this licence for some 10 years and had accumulated some 4,000 flying hours. He did not consider that he was in need of a test to establish whether he could satisfy the initial issue of that licence. In any event, Mr Merridew failed the CIR test.
17. I had before me a report prepared by Mr Greg Imlay, a CASA flying operations inspector with the Northern Region, Darwin office. He conducted the CIR flight test on 3 November 2010. Mr Merridew was asked to fly a route between Moorabbin – Mangalore – Bendigo – Avalon – Moorabbin. Mr Imlay made the following points about that flight:
(a)Mr Merridew’s flight planning contained two errors, both of those being calculations of LSALT between Moorabbin and Melbourne, and Melbourne and Mangalore, although the errors were on the safe side;
(b)his answers to pre-flight examination questions were satisfactory including his calculations of LSALT for off air route destinations;
(c)although Mr Imlay pointed out to him the freezing level at 10,000 ft in the west and 5,000 ft in the east, he planned the route to Mangalore at 6,000 ft and the Bendigo – Avalon sector at 7,000 ft, above the height of the freezing level;
(d)there was a small issue about the maintenance release regarding the progressive total column rather and the total time in service (TTIS);
(e)the first simulated engine failure (after takeoff) resulted in incorrect drill;
(f)on the second practice engine failure during a missed approach, Mr Merridew again used incorrect drill and failed to control the airspeed;
(g)on an NDB approach, Mr Merridew was unable to sustain the tracking tolerances required by Civil Aviation Order 40.2.1 but nevertheless continued the decent;
(h)he did not choose a more suitable route away from potential icing conditions although aware of them;
(i)Mr Merridew took off with the pitot heat off and turned it on when he caught sight of clouds and later in flight switched it off again;
(j)despite deciding on the Melbourne – Mangalore leg that he would remain at 5,000 feet after being advised that another aircraft had reported icing at 6,000 feet, on the flight from Mangalore to Avalon, he chose to fly at 7,000 feet, climbing through icing conditions;
(k)continuing to climb in and out of cloud with ice accumulating until coming out on top of the cloud with a light coating of rime ice with some patches of thicker clear ice; and
(l)placing the aircraft in a position where it then had to descent through visible moisture after the aircraft was cold soaked and had experienced icing on the climb through cloud.
18. Mr Ribbands submitted that Mr Merridew was willing to accept a suspension of the CIR pending a further test, but that he should be permitted to continue to fly under the visual flight rules (VFR) whilst retaining his CP(A) L. Mr Ribbands submitted that the requirement for Mr Merridew to undergo a flight test for the initial issue of a CP(A) L was unnecessary and in the circumstances onerous. This was because what led to Mr Merridew’s licence being suspended was an error in calculating LSALT which related only to his CIR.
19. With respect to Mr Ribbands, I cannot accept his submission. The fact is that Mr Merridew was exercising the privileges of his CP(A) L, carrying fare paying passengers, when he flew below LSALT on a night IFR flight. The problem with that flight was not only that Mr Merridew flew below LSALT on an IFR flight, but that he planned to fly below that altitude, that being a command decision on a commercial flight. There is a clear overlap between the exercise of the privileges under the CIR and the CP(A) L in those circumstances. In fact, as is clearly evident from CAR 5.13, an instrument rating can only be issued to the holder of a flight crew licence. The rating is in fact merely a permission to a CP(A) L holder to fly under the IFR.
20. Mr Ribbands was also critical of CASA for not proceeding under CAR 269 which would have afforded Mr Merridew the benefit of an automatic stay under s 31A of the CA Act. That is, had Mr Merridew applied to the Tribunal within five business days of the decision having been made by CASA, the statutory stay in existence for the first five days would have continued until the end of the 90th day after CASA notified Mr Merridew of its decision. In fact, Mr Ribbands submitted that CASA had determined Mr Merridew was not a fit and proper person to exercise the privileges of a CP(A) L.
21. I cannot accept Mr Ribbands’ submissions regarding CASA’s decision not to proceed under CAR 269. To begin with, CASA did not make a decision regarding Mr Merridew’s fitness and propriety to exercise the privileges of a CP(A) L. It merely concluded that he appeared not to possess the aeronautical skills and knowledge required of a holder of a CP(A) L and a CIR, particularly in relation to flight planning. For those reasons, CASA decided that the appropriate course was to suspend Mr Merridew’s CP(A) L and CIR under CAR 265, which is, by its very nature, a temporary position. Its purpose is to permit the holder of a licence to demonstrate to CASA that he or she should be allowed to continue to exercise the privileges of the licence. This is evident from CAR 265(2) which provides:
(2)Where the result of the examination does not show any ground on which the licence or authority may be suspended or cancelled, CASA shall forthwith terminate the suspension of the licence or authority and, by notice in writing served on the holder of the licence or authority, notify the holder that the suspension has been so terminated.
22. Furthermore, CAR 265(3) provides that if CASA does not terminate the suspension following the examination, but rather decides to give the holder of the licence a show cause notice under CAR 269(3), then the licence or authority remains suspended for the times specified by CASA in the notice. Of course, if a show cause notice were to issue, then the provisions of s 31A would have affect. In this case, CASA has not issued a show cause notice.
23. As the matter stands at present, all that Mr Merridew is required to do is to conduct a satisfactory flight test for the initial issue of a CP(A) L and a CIR. It seems to me that this is not an onerous obligation and one which was properly sought by CASA. Upon demonstrating satisfactory performance in the course of a flight test, Mr Merridew’s licence and CIR would be reinstated.
24. For the reasons I have set out above, and as stated in my oral decision, I decline to grant a stay of the decision made by CASA on 1 October 2010, suspending Mr Merridew’s CP(A) L and CIR.
I certify that the twenty-four [24] preceding paragraphs are a true copy of the reasons for the decision herein of
Egon Fice, Senior MemberSigned: ..........Elise Montalto..................................................
Elise Montalto, AssociateDate of Hearing 11 November 2010
Date of Interlocutory Decision 11 November 2010
Date of Written Reasons 29 November 2010
Counsel for the Applicant Mr J Ribbands
Solicitor for the Applicant Mr J Maitland, Maitland Lawyers
Solicitor for the Respondent Ms C Swain, Civil Aviation Safety Authority
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