Re Scott and ASIC

Administrative Appeals Tribunal

ORDER AND REASONS FOR ORDER [2009] AATA 789

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2009/4432

GENERAL ADMINISTRATIVE DIVISION		)
Re		ANTHONY PARKES

Applicant

And CIVIL AVIATION SAFETY AUTHORITY

Respondent

And          REATON COURT PTY LTD  
  Third Party    

ORDER

Tribunal Senior Member Bernard J McCabe

Date1 October 2009

PlaceBrisbane

Decision The Tribunal refuses to order the implementation of the decision under review be stayed pursuant to s 41(2) of the Administrative Appeals Tribunal Act 1975.

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Senior Member

Is the stay order sought for an appropriate purpose?

9.      The applicant’s financial circumstances are such that his business will probably fail before the review can be completed if the decision is not stayed. The review will, in effect, become pointless in the absence of a stay. I accept it is unlikely the applicant will be able to obtain a replacement chief pilot in the interim that would permit the company to continue its operations in accordance with its Air Operator Certificate (“AOC”) and the Civil Aviation Act 1988. It follows I am satisfied the first limb of the test in s 41(2) of the AAT Act has been satisfied.

Is it desirable to stay the decision having regard to the interests of the parties who will be affected by the review?

10.     The interests of the applicant and his wife – and perhaps his financiers – will be severely damaged in the short term if I do not make a stay order. He is likely to lose his business and perhaps his other assets. That unhappy result might come to pass even if I order the stay, of course, in the event his application for review is unsuccessful.

11.     The applicant’s prospects of success are also relevant to the discussion. It is not appropriate to undertake a detailed assessment of the strength of his case given that all of the evidence is not in. Mr Carter said the applicant will vigorously contest the decision. Mr Carter pointed to a number of matters in dispute and foreshadowed obtaining expert evidence. I am not prepared to say the case has no merit, which counts in his favour.

12.     I must also consider the interest of the public in air safety. Indeed, public safety in a case like this is the most important consideration. I acknowledge that CASA has not taken the step of suspending the applicant’s permit or cancelling the AOC on the basis that there is an imminent threat to air safety. But CASA says there are still significant concerns, and points to the incidents in February this year and the more recent incident in August over Robina to support its case.

13.     The applicant said concerns arising out of the three incidents say more about the applicant’s capacity as a pilot. They did not reflect on his competence in the role of a chief pilot. CASA has not taken regulatory action against the applicant in his capacity as a pilot at this point. Mr Carter said…