Re Snook and Civil Aviation Safety Authority
[2008] AATA 861
•25 September 2008
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2008] AATA 861
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2008/2804
| GENERAL ADMINISTRATIVE DIVISION | ) | ||
| Re | PETER SNOOK | ||
Applicant
| And | CIVIL AVIATION SAFETY AUTHORITY |
Respondent
INTERLOCUTORY DECISION
| Tribunal | Mr Egon Fice, Member |
Date25 September 2008
PlaceMelbourne
| Decision | The Tribunal decides that implementation of the decision of the Civil Aviation Safety Authority dated 24 June 2008 be stayed until 12 December 2008. |
(sgd) Egon Fice
Member
CIVIL AVIATION – stay application – suspension of private pilot’s licence and aircraft maintenance engineer’s licence – variation of certificate of approval
Administrative Appeals Tribunal Act 1975 ss 41(1), 41(2), 41(3)
Civil Aviation Act 1988 ss 9A, 31A
Civil Aviation Regulations 1988 Reg 269(1)(c) and (d)
McDonald v Director-General of Social Security (1984) 6 ALD 6
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 Safety Authority (1993) 31 ALD 380
Re Labrador Liquor Wholesale Pty Ltd and CEO of Customs [2006] AATA 485
Re Secretary, Department of Workplace Relations and Nicholas [2006] AATA 497
Re Tweed and Australian Securities and Investment Commission [2007] AATA 1226
Re VBJ and Australian Prudential Regulation Authority [2005] AATA 642
REASONS FOR DECISION
| 25 September 2008 | Mr Egon Fice, Member |
Mr Peter John Snook holds a private pilot licence, an aircraft maintenance engineer’s licence and a certificate of approval to conduct maintenance on aeroplanes, issued to his maintenance organisation which trades as Aeronautique Australia.
The Civil Aviation Safety Authority (CASA) issued a notice to Mr Snook to show cause why his private pilot licence and engineer’s licence should not be suspended, and the certificate of approval varied. Mr Snook responded to that notice. CASA considered Mr Snook’s response and on 24 June 2008 decided to:
(1)suspend Mr Snook’s private pilot (aeroplane) licence for six months and require him to pass a flight test;
(2)suspend his aircraft maintenance engineer’s licence number W9414 for twelve months and require him to successfully undertake and pass an airworthiness legislation examination and a course of training dealing with human factors; and
(3)suspend his certificate of approval number 5156 until he has undergone a risk and safety management training course or other appropriate course as directed by CASA; and require that he participate in an interview with CASA’s manager Western Region to discuss his duties and responsibilities in the management, planning and oversight of his approved maintenance organisation.
CASA’s decision was made in accordance with Regulation 269(1)(c) and (d) of the Civil Aviation Regulations 1988 (CAR).
In accordance with s 31A of the Civil Aviation Act 1988 (the Act), the operation of CASA’s decision was automatically stayed for a period of five business days after the day CASA notified Mr Snook of the decision.
Mr Snook lodged an application for review of CASA’s decision with the Tribunal on 25 June 2008. As a result, in accordance with s 31A(5) of the Act, the automatic stay continued in effect until the end of the 90th day after CASA notified Mr Snook of its decision. That means the automatic stay of CASA’s decision ceased to have effect at the end of 22 September 2008. On 12 September 2008 Mr Snook lodged with the Tribunal an application pursuant to s 41(2) of the Administrative Appeals Tribunal Act 1975 (AAT Act) seeking that the operation and implementation of CASA’s decision be stayed until the final hearing and determination of Mr Snook’s application to the Tribunal.
For the reasons set out below, I am of the view that the operation and implementation of CASA’s decision made on 24 June 2008, to suspend Mr Snook’s private pilot licence and aircraft maintenance engineer’s licence and to vary his certificate of approval, should be stayed until 12 December 2008.
RELEVANT BACKGROUND
On 15 January 2008 Mr Denis Coxal was a pilot of a SUD Aviation GY80‑150 aircraft, registration VH‑YOG. Due to smoke in the cockpit during the flight, he was forced to land in a paddock near Bunbury in Western Australia. Mr Coxal contacted Mr Snook asking him to determine and rectify the cause of the problem.
On the following day Mr Snook inspected the aircraft in the paddock. According to Mr Snook, his inspection did not reveal any obvious cause of the smoke in the cabin. However, he observed that the engine tailpipe, from the rear of the muffler, was missing. He also noticed that there was discolouration on the firewall which separates the cockpit from the engine compartment, caused by exhaust deposits. In any event, Mr Snook determined that the aircraft was safe to fly to Bunbury airport for further inspection and repair. This was a 10 minute flight.
In the course of his flight from the paddock to Bunbury airport Mr Snook experienced significant smoke and fumes in the aircraft’s cockpit. It caused him to reduce engine power and open the cockpit door in an attempt to vent the smoke and fumes. Regardless, Mr Snook completed the flight and landed safely at Bunbury airport. An inspection of the aircraft subsequent to that flight disclosed that the carpet on the floor of the cabin on the co-pilot’s side had burned through due to excess heat on the aircraft’s firewall generated by exhaust gases blowing against the firewall because they were not being directed away from it, as would have happened if the tailpipe had been in place.
By flying VH-YOG from the paddock to Bunbury airport, CASA considered that Mr Snook was reckless and endangered persons and property in the course of that flight. This was why CASA decided to suspend Mr Snook’s private pilot’s licence.
Mr Snook was also a licensed aircraft maintenance engineer (LAME). Therefore, CASA contended that when he conducted an inspection of VH-YOG, prior to the flight from the paddock to Bunbury airport, he should have recognised that the aircraft was defective and needed repair. According to CASA, the defective state of the exhaust system on VH-YOG should have been recorded on the maintenance release as a major defect; and the maintenance released endorsed with an entry indicating that the aircraft was not airworthy. Further, the maintenance release for the aircraft was retained by the pilot after he made the forced landing in the paddock. Therefore, when Mr Snook inspected the aircraft and flew it to Bunbury, he did not have access to the maintenance release and he did not record details of his flight from the paddock to Bunbury airport. According to CASA, that also constituted a breach of the CAR.
Mr Snook was also the holder of a certificate of approval which authorised Aeronautique Australia to conduct maintenance on Class B aircraft with a maximum take-off weight not exceeding 3,500 kilograms. According to CASA, on 19 December 2007 in the course of a periodic inspection of VH-YOG, Mr Snook found cracking around the muffler and had repairs performed on the exhaust system. The welding was conducted by another certificate of approval holder. Mr Snook installed the muffler after its repair and returned the aircraft to service following the issue of a maintenance release. The incident which caused the forced landing of VH-YOG on 15 January 2008 occurred 3.2 recorded flight hours following the repairs Mr Snook had conducted on the exhaust system of the aircraft. An inspection by CASA revealed the exhaust system was not re-assembled using appropriate part components as detailed in the manufacturers approved parts catalogue. According to CASA, it was Mr Snook’s failure to correctly re-assemble the exhaust system which contributed to the loss of the tailpipe after only 3.2 further hours of flight. CASA said Aeronautique Australia’s certificate of approval should be suspended to enable Mr Snook to reflect upon his conduct and to undertake appropriate training so that he would gain a proper understanding of his obligations and responsibilities.
There has been a further complication in this matter. On 4 September 2008 CASA issued a second Show Cause Notice to Mr Snook, requiring him to show why his private pilot licence, aircraft maintenance engineer licence and the certificate of approval should not be varied, suspended or cancelled. Mr Snook is permitted 21 days from the date of receipt of that Show Cause Notice to respond. At the time of hearing this application, Mr Snook had not responded to the 4 September 2008 Show Cause Notice. The second Show Cause Notice related to matters in addition to those set out in the first Show Cause Notice and was unrelated to the events which gave rise to the first notice.
Mr Ribbands of counsel, who appeared on behalf of Mr Snook, submitted that there should be an interim stay of the implementation and operation of CASA’s decision based on the first Show Cause Notice until such time as Mr Snook has had an opportunity to respond to the second Show Cause Notice; and, if CASA acts on the second Show Cause Notice to vary, suspend or cancel the licences and approval in question, that Mr Snook have the opportunity to seek review of that decision by the Tribunal. If the second Show Cause Notice leads to an application being lodged with the Tribunal, Mr Ribbands said it is possible that Mr Snook will also seek a stay of the operation and implementation of that decision; and it would therefore be appropriate to review the overall position regarding both applications at that time. Mr J Rule, the principal lawyer with the legal branch of CASA, opposed the grant of an interim stay order.
POWER TO GRANT A STAY
Generally, 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 a stay 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.
Furthermore, if the Tribunal has made an order under s 41(2), it may, on a request being made by a party to the proceeding, make an order varying or revoking the stay order (s 41(3)).
It is clear from the provisions set out in s 41(2) of the AAT Act that the matters to be considered by the Tribunal when deciding whether to make a stay order are whether:
(1)it is desirable to do so after taking into account the interests of any persons who may be affected by the review; and
(2)it is appropriate for the purposes of securing the effectiveness of the hearing and the determination of the application for review.
The matters which should be properly taken into account 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] AATA 642; Re Tweed and Australian Securities and Investment Commission [2007] AATA 1226; Re Secretary, Department of Workplace Relations and Nicholas [2006] AATA 497; Re Labrador Liquor Wholesale Pty Ltd and CEO of Customs [2006] AATA 485; and Re Griffiths Grif-Air Helicopters Pty Ltd and Civil Aviation Safety Authority (1993) 31 ALD 380). It seems to me that the relevant factors in this case are as follows:
(1)the prospects of success or the merits of the applicant’s case on review;
(2)whether the parties or anyone else would be prejudiced if a stay is not granted;
(3)whether public safety is likely to be imperilled if a stay is granted; and
(4)whether the review application, if successful, would be rendered nugatory or pointless if the stay was not granted.
It is also necessary to mention that although no party in a proceeding before the Tribunal bears a burden of proof to establish facts or to make out the case for review, there must be sufficient evidentiary material before the Tribunal to enable it to exercise its discretion in accordance with the law (see McDonald v Director-General of Social Security (1984) 6 ALD 6).
PROSPECTS OF SUCCESS OR MERITS OF THE APPLICANT’S CASE
It is well understood that in considering an applicant’s prospects of success for the purposes of a 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 Commonwealthof Australiaand Quirke (1986) 9 ALD 92 at 95).
There is an additional problem in a case such as this because even if at the substantive hearing of this matter, I were to find the facts as stated by CASA and agreed that those facts gave rise to breaches of the CAR, that would not automatically result in a suspension or variation of Mr Snook’s licences or certificate of approval. Regulation 269 of the CAR provides:
(1)Subject to this regulation, CASA may, by notice in writing served on the holder of a licence or certificate or an authority, vary, suspend or cancel the licence, certificate or authority where CASA is satisfied that one or more of the following grounds exists,…
Clearly, CASA is required to exercise discretion, even if it is satisfied that any of the grounds set out in Reg 269 are found to exist. In exercising that discretion, CASA must do so in accordance with the law. In particular, when exercising its powers and performing its functions, CASA must have regard to the safety of air navigation as the most important consideration (s 9A of the Act). It should be apparent that it will not be appropriate to suspend or cancel a licence or an approval in every case. Whether it is appropriate will depend on the circumstances of the particular case.
Therefore, as in this case, where an applicant has offered an explanation for his or her conduct which gave rise to the Show Cause Notice issued by CASA, there will be a multitude of factors which will need to be considered in detail before it is possible to conclude that CASA’s decision to suspend or cancel is the preferable decision. An example of when it might be so is where, prima facie, the evidence discloses a systemic problem with the conduct of the applicant and possibly the applicant’s attitude towards regulatory compliance. Although CASA has now issued a second Show Cause Notice and the basis for that notice appears to be (unlike the first Show Cause Notice) a number of discrete incidents regarding the maintenance of aircraft which may indicate a systemic problem, I am not prepared to take the second notice into account for the purposes of this application. That is because Mr Snook has not yet responded to the second Show Cause Notice and to consider that notice in the absence of his response would, in my opinion, be unfair to Mr Snook.
It should therefore be reasonably apparent that it cannot be said, in the very early stages of a proceeding such as this, whether an applicant has prospects of succeeding in the substantive application or whether it appears that the applicant’s reasons for seeking review are meritorious. However, by the same token, it cannot be said that Mr Snook has no real prospects of success in this application. This factor does not favour either party.
PREJUDICE IF STAY NOT GRANTED
Under this heading, it is sometimes said that hardship to the applicant or other parties affected by the decision should also be considered. I do not disagree with that proposition; although it seems to me that the hardship, if evident, must have some prejudicial effect on the party claiming it.
Mr Snook provided a written statement to the Tribunal in support of his application for a stay. He also gave oral evidence and was cross-examined in the course of the hearing. Mr Snook said in evidence that he relied on his business as a LAME to earn his livelihood and to support his family. It is his only source of income and his only skill, having been a LAME for nearly 40 years. He uses his private pilot licence in the course of his business by conducting flight tests of aircraft on which he has completed maintenance. He also uses his private pilot licence to fly to more remote areas of Western Australia to conduct maintenance. According to Mr Snook, if his licences or his certificate of approval are suspended or cancelled, he will be unable to earn a living and to service his debts. According to Mr Snook, he requires income of approximately $3,500 per week in order to satisfy his creditors and, as I understood it, to continue operating his aviation maintenance business.
I am satisfied that if the stay is not granted, Mr Snook will suffer financial hardship as he has no other source of income. Although it is possible that Mr Snook could seek employment as an aircraft maintenance engineer without his licence, that would be at a substantially reduced income and, as he said, he would struggle to meet his financial commitments. It also seems to me to be reasonable to infer that Mr Snook, if he is placed in a precarious financial position, may have some difficulty in continuing to engage legal representation and to pursue his only avenue of redress with this Tribunal. Therefore, I accept that the effectiveness of the hearing in this matter may be affected by the financial hardship Mr Snook would experience if a stay order were not made.
EFFECT ON AVIATION SAFETY
In my opinion, this factor should be given prominence when considering whether a stay should be granted. If there is a real risk to the safety of air-navigation as a result of allowing Mr Snook to continue his maintenance operations, the stay order should not be made.
The substantive application before the Tribunal arises from the consequences of a single incident involving aircraft VH-YOG. There is little which arises out of that incident which give me serious concern for the safety of air navigation in the event that a stay is granted, at least until the matters raised in the second Show Cause Notice are before me. The maintenance which was the subject matter of the first Show Cause Notice involved the exhaust system of a 40-year old aircraft. In his response to the Show Cause Notice, Mr Snook said that the tailpipe on that aircraft’s exhaust system was re-fitted in the same way that it had been previously fitted by another engineer. The muffler which was fitted to the aircraft was not the standard muffler for the aircraft which had been out of production for 40 years. In itself, this event does not disclose that Mr Snook’s continued maintenance activities as a LAME are likely to endanger the safety of air navigation. To me it appears to be an isolated incident which arose because of a sequence of errors, not all of which can be attributed to Mr Snook. Mr Snook’s decision to fly the aircraft with a missing tailpipe after being fully aware of why the pilot of the aircraft on the previous flight was forced to land in a paddock does raise a serious question about Mr Snook’s judgment on that occasion. However, I am satisfied that this incident, by itself, does not lead to a conclusion that the safety of air navigation will be imperilled if a stay were granted.
REVIEW RENDERED NUGATORY
Mr Snook’s evidence was that his reputation was important to enable him to retain his current customer base. He said that he has regular customers and services approximately 30 to 40 aircraft per year. He also said that as there were some six competitors based at Jandakot Airport, he had serious concerns that if he was unable to provide LAME services through Aeronautique Australia his customers would go to his competitors. He was concerned that his customers would not return if that were to happen. Mr Snook also pointed out that on the last occasion, in 2002, when CASA decided to cancel his certificate of approval, his reputation was detrimentally affected. Therefore, he had grave concerns that if a stay was not granted and he was successful in this substantive application (as he was in his 2002 application) his reputation would nevertheless be irreparably harmed.
It is difficult not to accept the submissions made on behalf of Mr Snook in relation to this factor. I have examined the decision of Deputy President SD Hotop in Mr Snook’s 2002 application to the Tribunal, and it is evident that Mr Snook has a history of disagreements with CASA. Therefore, if his customers are made aware of CASA’s decision as a consequence of the maintenance and flying of VH-YOG, it seems to me to be likely that his reputation will be adversely affected, even if he is successful in the substantive application. I therefore accept Mr Ribbands’ submission that without a stay, Mr Snook’s substantive application may be rendered nugatory.
CONCLUSION
Having examined the relevant factors which should be considered in this application for a stay of the operation and implementation of CASA’s decision to suspend Mr Snook’s licences and to vary the certificate of approval, I am of the opinion that the balance favours the grant of a stay. On the basis of the Show Cause Notice that is before the Tribunal and taking into account the documents filed in support of Mr Snook’s application, it cannot be said his application is without merit. I am also concerned that because his engineer’s licence is essential for him earning income, he will suffer hardship and that hardship may result in significant prejudice to Mr Snook conducting his substantive application before the Tribunal. I am not satisfied that the safety of air-navigation will be imperilled if a stay were granted. Even if Mr Snook was successful in his substantive application before the Tribunal, I accept that the temporary suspension of his licences may sufficiently tarnish his reputation for him to lose the business he currently operates. That would render the substantive application to this Tribunal pointless. It follows that I am of the view that the operation and implementation of CASA’s decision made on 24 June 2008 to suspend Mr Snook’s private pilot licence and aircraft maintenance engineer’s licence and to vary his certificate of approval should be stayed until 12 December 2008. I have chosen that date because, by that time it is anticipated that the second Show Cause Notice will have resulted in a decision having been made by CASA whether to act upon the matters set out in that notice. If CASA decides to act on the second Show Cause Notice, and Mr Snook seeks review of that decision by the Tribunal, it may then be opportune to re-examine the stay order I have made and, if necessary, vary or revoke the order in accordance with s 41(3) of the AAT Act. In the event that CASA identifies any matter between the date of this decision and 12 December 2008 which gives rise to a cause for serious concern about the safety of air navigation arising out of Mr Snook’s aviation activities, then CASA should immediately make an application under s 41(3) of the AAT Act. In fact, either party will have liberty to apply.
I certify that the thirty three [33] preceding paragraphs are a true copy of the reasons for the decision herein of
Mr Egon Fice, Member
(sgd) Mara Putnis
Clerk
Dates of Hearing 18 September 2008
Date of Decision 25 September 2008Counsel for the applicant Mr J Ribbands
Solicitor for the applicant Maitland Lawyers
Counsel for the respondent Mr J Rule
Solicitor for the respondent Civil Aviation Safety Authority Legal Services Group
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