Re Fergus Hanley Applicant And Civil Aviation Safety Authority Respondent
[2012] AATA 183
•29 March 2012
[2012] AATA 183
Division GENERAL ADMINISTRATIVE DIVISION File Number
2012/0781
Re
FERGUS HANLEY
APPLICANT
And
CIVIL AVIATION SAFETY AUTHORITY
RESPONDENT
INTERLOCUTORY DECISION
Tribunal Egon Fice, Senior Member
Date of hearing 8 March 2012 Date of
written reasons
29 March 2012
Place Melbourne The Tribunal has, in accordance with section 41(4)(a) of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act), given the Respondent a reasonable opportunity to make submissions to it in relation to the making of this order, and has taken into account the interests of the Respondent and any other persons who may be affected by the review of the Respondent’s decision.
The Tribunal considers that the following order is appropriate for the purpose of securing the effectiveness of the hearing and determination of the application for review.
Pursuant to section 41(2) of the AAT Act, the Tribunal orders that:
1.the operation/implementation of the Respondent’s decision of 21 February 2012 to cancel the applicant’s Pilot Licences and Flight Instructor Ratings is stayed until the decision of the Tribunal on the application for review comes into operation or until further order of the Tribunal; and
2.liberty to apply is reserved.
..............[sgd]..........................................................
Egon Fice, Senior Member
CIVIL AVIATION – stay application – cancellation of Private Pilot (Helicopter) Licence – cancellation of Commercial Pilot (Helicopter) Licence – Cancellation of Airline Transport Pilot (Helicopter) Licence – Cancellation of Grade 1 and 2 Flight Instructor (Helicopter) Rating – Revocation of Chief Flying Instructor approval – heavy landing
Administrative Appeals Tribunal Act 1975 (Cth) ss 37, 41(1), 41(2), 41(3)
Civil Aviation Act 1988 (Cth) ss 9A, 20A, 20AA, 31A
Civil Aviation Regulations 1988 (Cth) regs 5.58(5), 47(1), 269(1), 269(3)
Re Commonwealth of Australia and Quirke (1986) 9 ALD 92
Re Dart and Director-General of Social Services (1982) 4 ALD 553
Re Griffiths Grif-Air Helicopters Pty Ltd and Civil Aviation Authority (1993) 31 ALD 380
Re Labrador Liquor Wholesale Pty Ltd and CEO of Customs (2006) 63 ATR 1158
Re Secretary, Department of Workplace Relations and Nicolas (2006) AATA 497
Re Tweed and Australian Securities and Investment Commission (2007) AATA 1226
Re VBJ and Australian Prudential Regulation Authority (2005) 60 ATR 1013REASONS FOR DECISION
Egon Fice, Senior Member
29 March 2012
Mr Fergus Edward Hanley was employed by Apple Helicopters Pty Ltd (Apple Helicopters) which was formerly known as Newcastle Helicopters Australia Pty Ltd. He held a Private Pilot (Helicopter) Licence (PPL), Commercial Pilot (Helicopter) Licence (CPL) and an Airline Transport Pilot (Helicopter) Licence (ATPL). Mr Hanley also held a Grade 1 and Grade 2 Flight Instructor (Helicopter) Rating and Approval as Chief Flying Instructor (CFI) of Apple Helicopters.
On 23 December 2011 the Civil Aviation Safety Authority (CASA) issued a notice to Mr Hanley to show cause why his licences, CFI approval and flight instructor ratings should not be varied, suspended, cancelled or revoked. The incident which led to CASA taking this action arose following a heavy landing while Mr Hanley was demonstrating an emergency autorotation to a student pilot. CASA alleged that following the heavy landing, Mr Hanley left the student pilot at the controls of the helicopter with the engine running, exited the cockpit and conducted an inspection of the aircraft. Following that inspection, Mr Hanley is alleged to have hover-taxied the helicopter back to the Apple hangar, a distance of some 340 m from the landing site.
CASA alleged that Mr Hanley was aware that the aircraft had sustained extensive damage as a result of the heavy landing and his decision to hover-taxi the aircraft back to the hangar constituted reckless operation of the aircraft contrary to s 20A and s 20AA(4) of the Civil Aviation Act 1988 (the CA Act). CASA also alleged that Mr Hanley breached reg 47(1) of the Civil Aviation Regulations 1988 (CAR).
On 21 February 2012, following Mr Hanley's response to the show cause notice given to him by CASA, CASA notified Mr Hanley that it had decided to cancel his licences and flight instructor ratings, and to revoke his approval as CFI. On 27 February 2012 Mr Hanley lodged with the Tribunal an application for review of CASA's decision. Together with that application, Mr Hanley lodged a request for an order pursuant to s 41(2) of the Administrative Appeals Tribunal Act 1975 (AAT Act) seeking a stay of CASA's decision made on 21 February 2012.
Pursuant to s 31A of the CA Act, where CASA is required by the Act or the regulations to provide a show cause notice to the holder of the civil aviation authorisation concerned, the decision of CASA is automatically stayed until the fifth business day after the day CASA notified the holder of the decision. However, where the holder of the civil aviation authorisation applies to the Tribunal for an order under s 41(2) before the end of the fifth business day, then the stay continues to have effect until the Tribunal makes an order under s 41(2) or decides that no order should be made. Because Mr Hanley lodged his application with the Tribunal within five business days of CASA's decision to cancel his licences and instructor ratings, the decision relating to his licences and instructor ratings is stayed until the Tribunal makes an order staying the decision or decides that no order should be made. However, because no show cause notice is required before CASA revokes a CFI approval, the automatic stay provisions do not apply to that approval.
I heard Mr Hanley's stay application on 8 March 2012. At the conclusion of that hearing I ordered that the operation or implementation of CASA’s decision be stayed until a final decision is made by the Tribunal. CASA requested that I provide written reasons for my decision. These are those reasons.
POWER TO GRANT A STAY
Generally, and subject to the provisions contained in s 31A of the CA Act, the making of an application to the Tribunal for review of a decision does not affect the operation of that decision or prevent the taking of action to implement the decision (s 41(1) AAT Act). An applicant aggrieved by an agency decision may seek to stay the decision in accordance with s 41(2) of the AAT Act. It 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.
Where the Tribunal has made an order under s 41(2), it may, on a request being made by a party to the proceedings, make an order varying or revoking the stay order (s 41(3)).
The provisions set out in s 41(2) of the AAT Act make it clear that the matters to be considered by the Tribunal when deciding whether to make a stay order are whether:
(a)it is desirable to do so after taking into account the interests of any persons who may be affected by the review; and
(b)it is appropriate for the purposes of securing the effectiveness of the hearing and the determination of the application for review.
As Deputy President SA Forgie said in Re Griffiths Grif-Air Helicopters Pty Ltd and Civil Aviation Authority (1993) 31 ALD 380, at 384:
(47) We have not found any further authority since the date of Liddle's case and also adopt the interpretation that the word ``desirable'’ connotes a ``positive aspiration'’ and that it is ``something worthy of achievement'’ rather than ``merely advisable'’. Unlike s 157(1) of the Superannuation Act 1976 (Cth), s 41(2) does qualify the matters which the tribunal may take into account in forming its opinion as to what is desirable. The qualification relates to the interests of any persons who may be affected by the review.
The obvious persons who may be affected by a review of CASA's decision are the applicant and the respondent.
The matters which should be properly taken into account when considering whether a stay should be granted have been variously expressed, depending upon the nature of the matter before the Tribunal (see for example Re VBJ and Australian Prudential Regulation Authority (2005) 60 ATR 1013; Re Tweed and Australian Securities and Investment Commission (2007) AATA 1226; Re Secretary, Department of Workplace Relations and Nicolas (2006) AATA 497; and Re Labrador Liquor Wholesale Pty Ltd and CEO of Customs (2006) 63 ATR 1158). In this particular matter, the relevant factors are as follows:
(a)the prospects of success or the merits of the applicant's case on review;
(b)whether the parties or anyone else would be prejudiced if the stay is not granted;
(c)whether public safety is likely to be imperilled if the stay is granted; and
(d)whether the review application, if successful, would be rendered nugatory or pointless if the stay was not granted.
PROSPECTS OF SUCCESS OR MERITS OF THE APPLICANT'S CASE
It is well understood that when considering an applicant's prospects of success for the purposes of the stay application, it is not appropriate to conduct a preliminary trial of the issues (see Re Dart and Director-General of Social Services (1982) 4 ALD 553 at 555). Rather, the Tribunal must consider whether there are facts and circumstances which, if established at the substantive hearing, would provide a basis for the applicant's success in the review on application; or whether there are points of law raised which, if sustained, would lead to that conclusion (see Re Commonwealth of Australia and Quirke (1986)
9 ALD 92 at 95).
Mr Hanley's licences and instructor ratings were cancelled by CASA on the grounds set out in reg 269(1)(c) and (d) of the CAR. His CFI approval was revoked under
reg 5.58(5) of the CAR. This stay application cannot affect the revocation of his CFI approval because his employment with Apple helicopters was terminated. The application relates only to the cancellation of his licences and instructor ratings.
One further problem arises because, even if at the substantive hearing of this matter the Tribunal were to find facts as stated by CASA, and agreed that those facts gave rise to breaches of the CA Act or the CAR, that would not automatically result in a suspension or variation of Mr Hanley's licences and instructor ratings. Regulation 269 of the CAR provides:
(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,…
Even if the Tribunal were satisfied that any of the grounds set out in reg 269 were found to exist, it is required to exercise discretion as to whether it should vary, suspend or cancel the approval, authority, certificate or licence. It must exercise its discretion according to law. In particular, the Tribunal must have regard to the safety of air navigation as the most important consideration (s 9A of the CA Act). Whether it is appropriate in the circumstances of this case to cancel the licences and instructor ratings will depend on the findings that are made only after a full hearing.
The evidence before me on this stay application comprised a number of documents provided by CASA pursuant to s 37 of the AAT Act as well as an affidavit sworn by
Mr Hanley on 7 March 2012. The s 37 documents contained a statement provided to CASA by Mr Michael Andrew Hope on 8 December 2011. Mr Hope is the owner of the helicopter which was damaged in the heavy landing incident and he was also the student pilot receiving training from Mr Hanley at the time of the incident.
Initially, Mr Hope informed CASA investigator, Mr Shaun Bennetts, that following the heavy landing, the helicopter was not taxied back to the hangar. However, some six weeks after the heavy landing incident, Mr Hope changed his evidence stating in his statement to CASA that after Mr Hanley inspected the helicopter following the heavy landing, it was taxied back to the hangar, a short distance of approximately 100-200 m from where the landing occurred. Mr Hope gave no reasons for changing the evidence which he gave to CASA.
In his affidavit Mr Hanley said that following the heavy landing, he and Mr Hope sat in the helicopter for about 2 minutes and completed the steps necessary to shut down the engine. He said that they got out of the helicopter, walked around it and noticed there was damage to the tail which consisted of a kink to the lower side of the tail boom and damage to the left rear skid anchor point. Mr Hanley said he told Mr Hope that there would not be any more flying on that day. Mr Hanley said Mr Hope became agitated and he told Mr Hope to go home. He said Mr Hope returned to his car, which was parked adjacent to the flying school hangar, and left the airfield. Mr Hanley said he then walked to the hangar and hooked up a quad bike and tow bar which is usually used to move large helicopters into and out of the hangar. Using the quad bike and a set of dual wheels which were affixed to the helicopter, he towed the helicopter back to the hangar.
It is not clear to me whether there were any other witnesses to this incident. While CASA did not refer to any witnesses who may have observed the incident, in an Investigation Report dated 12 December 2011 the investigator, Mr Bennetts, stated that Mr Hope was subsequently contacted following industry intelligence being received which indicated that the information Mr Hanley provided to CASA was false. According to Mr Bennetts, the industry intelligence was received on 5 December 2011 and, following the discussion with Mr Hope, he apparently confirmed that the information he previously gave to CASA was false and that the helicopter had in fact been flown after the heavy landing.
In the course of the stay application hearing, Mr Anthony Carter, a lawyer with the legal branch of CASA, indicated that CASA would provide further information about the industry intelligence said to have been received by Mr Bennetts. Despite the conversation between Mr Hope and Mr Bennetts apparently being the trigger for
Mr Hope changing the statement he provided to CASA on 10 November 2011, no reference is made to it in the show cause notice or the notice of cancellation issued by CASA. In fact, the cancellation notice states that Mr Hope approached CASA of his own volition to correct the record concerning the events which occurred following the heavy landing.
In the cancellation notice CASA stated that in addition to the fact that Mr Hope approached it of his own volition to correct his previous statements, it also relied on the fact that Mr Hope had been prepared to provide a signed statement confirming his amended version of events and it could discern no obvious interest on Mr Hope’s part to correct the record. With respect to CASA, without further investigation and objective evidence regarding why Mr Hope changed his version of events following the heavy landing, I see no reason at all why Mr Hope's evidence should be preferred to that of Mr Hanley at this preliminary stage. In fact, because Mr Hope changed his evidence some six weeks after the incident as a result of what appears to be a suggestion made by CASA about industry intelligence, I have some concern about Mr Hope's evidence. Nevertheless, at this early stage, it is not useful, nor is it necessary to attempt a determination as to which version of events is correct.
CASA was also critical of Mr Hanley for what was claimed to be an unexplained delay in reporting the incident to CASA and to the Australian Transport Safety Bureau (ATSB). A file note made by Mr JR Alexander, a flying operations inspector with CASA, of a meeting held on 23 November 2011, records that Mr Hanley did provide reasons for the delay in reporting the incident. Whether those explanations are satisfactory remains to be determined.
CASA also relied on an incident which took place on 7 March 2004 when Mr Hanley was the pilot in command of a helicopter at Bankstown airport. On that occasion, Mr Hanley was demonstrating low-level manoeuvres when the aircraft struck the ground causing damage to the rotor blades, the skids and the engine sub-frame assembly. Following that ground strike, Mr Hanley hover-taxied the aircraft back to the maintenance facility. CASA did not take action against Mr Hanley following that incident because it said it could not establish that at least some of the damage sustained was damage of which Mr Hanley must have been aware prior to taxing the aircraft back to the hangar. Nevertheless, CASA contended that the incident demonstrated that Mr Hanley had a previous history of operating a helicopter in similar circumstances after the helicopter had sustained damage in an uncontrolled ground contact.
With respect to CASA, I have concerns about its attempt to rely on the 2004 incident to demonstrate that Mr Hanley must have once again simply followed the procedure he followed some seven years previously. It appeared to me that CASA was attempting to use this incident by way of similar fact evidence. Such evidence is usually highly prejudicial and it is questionable whether one previous incident of a similar kind can be used in the way it appears CASA has used this evidence; and whether it should be allowed into evidence at all.
For the sake of completion, I mentioned to the parties at the stay hearing that the notice of decision to cancel Mr Hanley's licences and instructor ratings was said to be made pursuant to reg 269(3) of the CAR. That is clearly the wrong sub-regulation and is likely to be simply a typographical error. However, it may be that where a notice is given which has very significant consequences for the recipient, it should be correct on its face. Mr Andrew Molnar, who appeared on behalf of Mr Hanley, did not make submissions about this fact in the course of the hearing. However, he did indicate that he wanted the opportunity to consider the point as he had not noticed the error previously.
Although Mr Carter submitted that Mr Hanley had not made out a strong prima facie case, with respect, I cannot agree. To begin with, all that the applicant is required to demonstrate on a stay application is that he has an arguable case. Given the state of the evidence at this stage of this matter, I find that the applicant has established a prima facie case. If the facts and circumstances said to be true by Mr Hanley are established at the substantive hearing that would provide a basis for his success in the review on the application.
PREJUDICE IF STAY NOT GRANTED
The issue of hardship is usually examined under this heading. However, as I have previously stated, if hardship is evident it must have some prejudicial effect on the party claiming it.
Mr Hanley said he was married with three children, all of them of school age. His wife is studying and she has no other income. Mr and Mrs Hanley have a substantial mortgage. Mr Hanley submitted that without the use of his pilot licences and instructor ratings, he was unable to earn an income. He said that he has earned his income as a pilot for the past 14 ½ years although prior to this, he was carpenter. He did not currently hold any of the necessary licenses to perform carpentry work in Queensland, where he and his family reside.
Mr Carter submitted that the powers provided under s 41(2) of the AAT Act must be exercised for the purposes of securing the effectiveness of the hearing and determination of the application for review rather than for the purposes of protecting an applicant from any loss or from the suffering of any hardship at all, no matter how insignificant. While I accept Mr Carter’s submissions up to a point, the problem must be determined in light of each applicant's particular circumstances. I accept that the Tribunal’s review jurisdiction does not empower it to restore the applicant to the position he or she enjoyed prior to the making of the reviewable decision. However, given Mr Hanley's financial circumstances, it seems to me that there is a real risk that the effectiveness of the hearing and determination of the application for review will be jeopardised if a stay were not granted. In these circumstances, it is my opinion that Mr Hanley will suffer significant prejudice were he not able to continue to earn an income as a pilot even if this matter is brought on for hearing within the next few months.
EFFECT ON AVIATION SAFETY
Quite plainly, in aviation matters, this factor must be given prominence when considering whether a stay should be granted. If there is a real risk to the safety of air navigation by allowing Mr Hanley to continue to work as a helicopter pilot and flight instructor, then a stay should not be granted.
Mr Carter submitted that the key safety-related issue for me to determine on the stay application is whether I can have any confidence that Mr Hanley will comply with conditions attaching to his licences and instrument ratings, and observe aviation laws generally bearing in mind his conduct relating to the incidents on 7 March 2004 and
29 October 2011. I have already expressed my concern about CASA relying on the incident of 7 March 2004. As for the recent incident, the evidence of Mr Hanley and
Mr Hope is diametrically opposed. Clearly, at this stage of the proceeding, I have no way of determining which account is the truth. One of those persons is plainly being untruthful. I explained to those persons before me at the stay hearing that the person not telling the truth could expect to be visited with serious consequences.Regardless, the two events mentioned by CASA are the only occasions when Mr Hanley has come to the attention of CASA for alleged failure to comply with provisions in the CA Act or the regulations. He has extensive flying experience, some 5200 hours total flying time and 2300 hours as a flight instructor which includes 1300 hours on type. He has been flying for about 14 years. Even if the two incidents occurred as CASA has claimed, the circumstances of the second incident may be such that it does not warrant CASA cancelling Mr Hanley's licences and instructor ratings. For example, Mr Hanley may have genuinely believed that the damage to the helicopter following the heavy landing was not sufficient to render the helicopter unserviceable. This appears to be the ground upon which CASA declined to take action against Mr Hanley following the 2004 ground strike. I am not satisfied that if Mr Hanley is permitted to continue to fly until his application is finalised, the safety of air navigation would be imperilled.
REVIEW RENDERED NUGATORY
A review would be rendered nugatory if, despite being successful on the substantive application, an applicant has suffered irreparable damage. Although Mr Hanley contended that he would suffer damage to his reputation if a stay were not granted, there was no evidence before me to support that contention. Mr Hanley's employment with Apple Helicopters has been terminated. While I was not made privy to the reasons why his employment was terminated, the simple fact of termination will, in my opinion, have some effect on Mr Hanley's ability to gain further employment as a helicopter pilot and instructor. That is reason enough to bring this matter on for a substantive hearing as soon as possible. It also gives me some concern about whether the final outcome, should Mr Hanley be successful, would render the application nugatory.
CONCLUSION
Taking into account all of the relevant factors which should be considered on an application for a stay, my view is that a stay should be granted. I have found that
Mr Hanley does have reasonable prospects of succeeding in this application if he is able to establish the facts he claims on objective evidence. His explanation for the delay in reporting the matter to CASA and to the ATSB may be accepted given the circumstances in which Mr Hanley found himself following the heavy landing incident. The only significant evidence against a favourable finding is Mr Hope's evidence. The circumstances surrounding Mr Hope changing his evidence need to be fully explored.I have found that Mr Hanley will suffer prejudice if a stay is not granted. This is essentially for the reason that he would not be able to continue to earn an income. While I did not have complete details of Mr Hanley's financial circumstances, the fact that he has a wife and three children to support and a substantial mortgage to repay is sufficient for the present purposes.
I am not of the view that the safety of air navigation will be imperilled should a stay be granted. Even if the circumstances of the second incident are established by CASA at the substantive hearing, it nevertheless must exercise discretion in determining whether the licences and instructor ratings should be cancelled. Mr Hanley's flying record, save for the two incidents mentioned by CASA, seems to be unremarkable.
In my opinion, Mr Hanley has not established that a review would be rendered nugatory if a stay were not granted. However, there are sufficient grounds for believing that this might be the case, particularly as his employment with Apple Helicopters has been terminated.
It follows that it is desirable that the operation and implementation of CASA's decision made on 21 February 2012 to suspend Mr Hanley's helicopter pilot licences and flight instructor ratings should be stayed until the final determination of his application by the Tribunal.
I certify that the preceding thirty nine (39) paragraphs are a true copy of the reasons for the decision herein of Egon Fice, Senior Member.
...........................[sgd].............................................................
Associate
Dated 29 March 2012
Date of hearing 8 March 2012 Date of Written Reasons 29 March 2012 Advocate for the Applicant Mr A Molnar Solicitors for the Applicant Australian Federation of Air Pilots Advocate for the Respondent Mr A Carter Solicitor for the Respondent Civil Aviation Safety Authority,
Legal Services Branch
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