Polar Aviation Pty Ltd and Civil Aviation Safety Authority

[2006] AATA 270

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2006] AATA 270

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          Nos.   N2005/1599-1602, N2005/1603

GENERAL ADMINISTRATIVE   DIVISION		)
Re		POLAR AVIATION PTY LTD

Applicant

And CIVIL AVIATION SAFETY AUTHORITY

Respondent

DECISION

Tribunal Senior Member M D Allen

Date24 March 2006

PlaceSydney

Decision

The decision under review is varied in the following manner, namely:

1.      By deleting condition 1.

2.      Condition 4 is amended by substituting for paragraphs 1 and 3 of the said condition the following:

(i)      Within 7 days from the end of each calendar month Polar Aviation Pty Ltd will provide to the CASA Team Leader Airworthiness Perth GA Field Office located at 130 Fauntleroy Avenue Redcliffe WA, a written report detailing, by aircraft registration, all defects noted or entered in the maintenance release of each aircraft over the immediately preceding calendar month.

3.      Within 7 days from the end of each calendar month, Polar Aviation Pty Ltd will provide to the CASA Team Leader Flying Operations Perth GA Field Office located at 130 Fauntleroy Avenue Redcliffe WA, a copy of the flight and duty records for each pilot employed by Polar Aviation Pty Ltd (whether employed on a permanent or casual basis) showing details of the flight and duty of each pilot over the immediately preceding calendar month.

4.      In all other respects the decision under review is affirmed.

(Sgd) M.D. ALLEN

.............................
  Senior Member

CATCHWORDS

CIVIL AVIATION – review of four conditions imposed by the Respondent on Applicant’s Air Operator’s Certificate – conditions imposed due to applicant’s background of repeated breaches of safety -  application of Civil Aviation Orders, akin to policy – decision under review varied by deleting condition 1 and varying condition 4.

Civil Aviation Act 1988 ss 28(3), 31(1)

Australian Securities and Investments Commission v Donald (2003) 136 FCR 7

REASONS FOR DECISION

Senior Member M D Allen

1.        On 5 August 2005 the Administrative Appeals Tribunal made the following decision in applications for review by Polar Aviation Pty Ltd (Polar) and the proprietor of Polar, Mr Clark Butson, namely:

1.        In matter No 2005/52 the decision to refuse to issue an Air Operator’s       Certificate (AOC) to Polar Aviation Pty Ltd be set aside and the matter is          remitted to the Respondent for reconsideration in accordance with the         following direction:

(a)that the respondent will, in good faith, do all things necessary, subject to the requirements of the Civil Aviation Act 1988 and the applicable legislation, to cause to be issued to Polar Aviation Pty Ltd by no later than 2 September 2005, an AOC covering charter and aerial work operations (including flying training).

2.In matter No 2005/25 the decision to cancel the approval of Mr Clark Butson as Chief Pilot of Polar Aviation Pty Ltd is affirmed.

3.In matter No 2005/26 the decision to cancel the approval of Mr Clark Butson as Chief Flying Instructor is set aside and in substitution therefor the Tribunal determines that Mr Butson is approved as Chief Flying Instructor of Polar Aviation Pty Ltd.  This decision is to take effect on 2 September 2005.

2.        In a second decision, the Tribunal affirmed a prior decision to cancel the Air Operator’s Certificate issued to Polar Aviation Pty Ltd.

3.        In conformity with the decision detailed above, the Respondent on 2 September 2005, issued an Air Operator’s Certificate (“AOC”) to Polar subject to 4 conditions.  Polar has sought review of those conditions.

4.        Any review of the conditions imposed by the Respondent upon Polar’s AOC can only take place by having regard to the decision by the Respondent to refuse to issue an AOC to Polar and to cancel the approval of Mr Butson to act as its Chief Pilot and Chief Flying Instructor.

5. The Respondent’s statement of reasons for the cancellation of Polar’s AOC and the approvals of Mr Butson as Chief Pilot and Chief Flying Instructor are set out at document T4 of the documents provided to the Tribunal pursuant to s 37 of the Administrative Appeals Tribunal Act 1975  Suffice it to say that the decisions were made after repeated breaches of safety by Polar and a failure by Mr Butson to fulfil the duties incumbent upon him as Chief Pilot.  A further detailed recitation of the alleged breaches is set out in the Respondent’s Statement of Facts and Contentions in this matter.

6.        Mr Butson was not only the Chief Pilot of Polar at the relevant time but he is the proprietor of, and to all intents and purposes, the controlling mind of Polar.  As is disclosed in correspondence exhibited both in this matter and in the previous hearing, taken with Mr Butson’s evidence and demeanour in these proceedings, he has a combative attitude towards the Respondent and to my mind, resents what he regards as an over zealous approach to the auditing of air safety standards applicable to both him and his company.

7.        This has unfortunately not been assisted by an over officious approach to their duties by individual officers of the Respondent.  I note however that one of the officers against whom particular complaints were alleged was not called in these proceedings, there being no necessity to do so, but is thus unable to answer the allegations made against him.

8.        In reality the matter with which I had to deal in these proceedings was whether the conditions imposed upon Polar’s AOC are unduly restrictive and represent an attempt by the Respondent to negate the effect of the Tribunal’s decision of 5 August 2005 or whether they represent an honest attempt to comply with the Tribunal’s decision having regard to the concerns regarding air safety the Respondent has regarding both Polar and its proprietor.

9.        Condition 1 of the AOC reads:

“Flying training operations may only be conducted if the Chief Pilot of Polar Aviation Pty Ltd approved by CASA holds a flight instructor (aeroplane) rating.”

10.      Civil Aviation Order 82.0, Appendix 1 reads inter alia:

“4.3     Unless otherwise approved in writing by CASA, a Chief Pilot must hold a licence with the appropriate endorsements and ratings to permit him or her to act as pilot in command of all operations authorised by the operator’s certificates.”

11. The Applicant’s submissions are that the duties of Chief Pilot and Chief Flying Instructor are separate and apart. As detailed in the Civil Aviation Regulations, the responsibilities of a Chief Pilot and a Chief Flying Instructor overlap to an extent, however there is a paradox in that a Chief Pilot who does not hold at least the same or greater qualifications as the Chief Flying Instructor cannot supervise the operations of a Chief Flying Instructor.

12. Further, the Applicant submits the Civil Aviation Regulations prohibit a Chief Pilot from supervising a Chief Flying Instructor unless he has the same or greater qualifications.

13.      For its part the Respondent draws a clear distinction between the duties of a Chief Flying Instructor with regard to pupils and the duties of a Chief Pilot in ensuring that the operations of the flight training school are conducted in accordance with the conditions attached to the school’s AOC and the applicable aviation legislation.  For example, paragraph 2.2 to Appendix 1 of Civil Aviation Order (“CAO”) 82.0 states:

“2.2The responsibilities of a Chief Pilot must, unless CASA otherwise specifies in writing, include the following responsibilities.

a)Ensuring that the operator’s air operations are conducted in compliance the Act, the Civil Aviation Regulations 1988 and the Civil Aviation Orders.”

14.      The Respondent concedes that there have been instances where it has approved a Chief Pilot for a flying school where that Chief Pilot did not have an instructor rating.

15.      Whereas I consider that there is some force in the Applicant’s submissions, I must take into account the provisions of paragraph 4.3 in Appendix 12 CAO 82.0.  To my mind, that CAO is akin to policy and as has been pointed out in many decisions of this Tribunal, the Tribunal will, as far as possible, give effect to policy.

16.      That being said, condition 1 as presently framed is unduly onerous and binds the Respondent’s own discretion.  The preferable decision is that condition 1 be removed thus allowing the provisions of paragraph 4.3 in Appendix 1 of CAO 82.0 to take their effect.

17.      So far as condition number 2 is concerned there is no dispute, the particular clauses of the condition being standard conditions.

18. Condition number 3 restricts the activities of Mr Butson with Polar. He is not to perform the role or have the responsibilities of Chief Pilot, Operations Manager, or key personnel as that term is defined in paragraphs 28(3)(b), (c) or (d) of the Civil Aviation Act.

19.      The order of 5 August 2005 affirms the cancellation of Mr Butson’s approval as Chief Pilot of Polar.  This cancellation was brought about by a series of failures by Mr Butson in his role as Chief Pilot.

20.      During the hearing of Mr Butson’s application to review the cancellation of this Chief Pilot’s approval it was stated, upon cross examination by Senior Counsel for Mr Butson, of Mr Farquhason the Manager General Aviation Office Perth, that if Mr Butson were to apply to be approved as Chief Pilot of Polar in 1 years time, that application would be considered on its merits.

21. That a condition of issuing an AOC to Polar was that Mr Butson not hold the position of Chief Pilot, Operations Manager or any position that fell within paragraphs 28(3)(b)2(d) of the Civil Aviation Act was also canvassed during this cross examination.

22.      To my understanding the decision of the Tribunal of 5 August 2005 was made on the acknowledgement by Mr Butson that his involvement with the management of Polar’s actual flying activities was to be curtailed and the decision reflected this.  It was also understood by all parties that Mr Butson could reapply to the Respondent at the expiration of twelve months from the date of the Tribunal’s decision.

23.      A peculiar difficulty is the strong and abrasive personality of Mr Butson.  The Respondent clearly takes the attitude that as currently advised, it is not appropriate to have him as Operations Manager or as key personnel as he would unduly influence the Chief Pilot in the carrying out of his duties.  These misgivings are compounded when regard is had to Mr Butson’s effective control of the company and thus being the employer of the Chief Pilot.  Having regard to the material before me in both the August proceedings and these proceedings, I am not persuaded that the Respondent’s misgivings are misconceived.

24.      I find that any application by Polar or Mr Butson to have Condition number 3 removed is premature.

25.      Condition 4 refers to reporting conditions imposed upon Polar.  The current Operations Manager of Polar, Mr Hargreaves, gave evidence which I accept that whereas he finds the discipline of conforming to the reporting conditions helpful in his duties as Operations Manager, the frequency of reporting is onerous.

26.      While I appreciate the Respondent’s concerns, particularly with the incidents which led to the initial cancellation of Polar’s AOC, having heard Mr Hargreaves and Mr Siggins, the current Flying Operations Inspector charged with oversight of Polar, I am satisfied that the time limitations suggested by Polar will achieve the required degree of supervision.

27.      Condition 4 is therefore varied by substituting in paragraphs 1 and 3 thereof a period of 7 days after the end of each calendar month instead of the fourteen day requirement as at present.

28.      A further order sought by the Applicant from the Tribunal was that a direction be made transferring the surveillance by the Respondent of Polar to its Kimberley/Darwin office or failing that, that the Tribunal make a recommendation to similar effect.

29.      While the Tribunal does possess all the powers and discretions of the Respondent, see for example Australian Securities and Investments Commission v Donald (2003) 136 FCR 7, I do not believe they go so far as to directing a Respondent how its internal administration should be arranged. Likewise, I consider any recommendation to like effect to be importunate and decline to make it.

30.      The decision under review will be varied as set out in the reasons above.

I certify that the 30 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member Allen

Signed:         (E.Pope)           .....................................................................................

Associate

Date of Hearing  9 and 10 March 2006
Date of Decision  24 March 2006

Counsel for the Applicant               Mr P Lithgow

Solicitor for the Applicant               Grundy Maitland & Co Lawyers

Counsel for the Respondent          Mr I Harvey
Solicitor for the Respondent          CASA, Office of Legal Counsel