Reha Ekinci and and and Civil Aviation Safety Authority
[2015] AATA 357
•22 May 2015
[2015] AATA 357
Division GENERAL ADMINISTRATIVE DIVISION File Numbers
2014/0575-0580
Re
Reha Ekinci
APPLICANT
And
Civil Aviation Safety Authority
File Number
2014/0583
Re
Cloud Nine Helicopters Pty Ltd
APPLICANT
And
Civil Aviation Safety Authority
File Numbers
2014/0595; 0598
Re
Air Combat Australia Pty Ltd
APPLICANT
And
Civil Aviation Safety Authority
RESPONDENT
DECISION
Tribunal The Hon. Robert Benjamin, Presidential Member
Date 22 May 2015 Place Hobart The Tribunal grants the Civil Aviation Safety Authority’s request pursuant to s 41(3) of the Administrative Appeals Tribunal Act 1975 (Cth) and revokes the stay granted by Deputy President Tamberlin on 3 March 2014.
Pursuant to s 41(2) of the Administrative Appeals Tribunal Act 1975 (Cth) the Tribunal stays the decisions made on 24 January 2014 by the Civil Aviation Safety Authority in respect of Air Combat Pty Ltd and Cloud Nine Helicopters Pty Ltd until further order and subject to the following directions and conditions:-
(a)Air Combat Pty Ltd and Cloud Nine Helicopters Pty Ltd may continue to operate under their respective Air Operators’ Certificates provided such companies employ a person or persons, other than Mr Ekinci, to hold the position of Chief Executive Officer and who is acceptable to the Civil Aviation Safety Authority, for the purposes of satisfying the requirements of s 28(1)(a) of the Civil Aviation Act 1988 (Cth); and
(b)It is a condition of the Certificate of Approval pursuant to Civil Aviation Regulations 1988 (Cth) reg 30(3) that Air Combat Pty Ltd is to employ a suitably qualified aircraft maintenance engineer LAME, other than Mr Ekinci, and who is acceptable to the Civil Aviation Safety Authority, to be responsible for the supervision and certification of all maintenance activities undertaken at Air Combat Australia Pty Ltd.
Liberty to apply is reserved to all parties in relation to the above orders and conditions.
.............................[sgd]...........................................
The Hon. Robert Benjamin, Presidential Member
CATCHWORDS
CIVIL AVIATION - Application to revoke a stay order – relevant factors to be taken into account – constrained remission for hearing given the limited success of the applicant on appeal to the Full Court – stay revoked
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth) s 41(2). 41(3)
Civil Aviation Act 1988 (Cth) s 9A
CASES
Re Scott & Australian Securities Investment Commission (2009) AATA 798
REASONS FOR DECISION
The Hon. Robert Benjamin, Presidential Member
21 May 2015
INTRODUCTION
This application arises out of proceedings between Reha Ekinci, Air Combat Australia Pty Ltd and Cloud Nine Helicopters Pty Ltd (the Applicants) and the Civil Aviation Safety Authority (the Respondent).
On 9 February 2015, following the remittal of this matter to this Tribunal from the Full Court of the Federal Court, the Respondent lodged a request seeking that “the stay of 3 March 2014 be revoked or, if the Tribunal is not minded to make such an order, that appropriate stay conditions be imposed on the Applicants pending final determination of the remitted applications” (the Revocation Request).
In support of the Revocation Request, I have before me three affidavits prepared by officers of the Respondent, namely:-
(a)Witness Statement of Anthony Carter made 5 March 2015;
(b)Witness Statement of Ian Rae made 5 March 2015; and
(c)Witness Statement of Michael Horsley made 4 March 2015.
Deputy President Tamberlin’s decision with respect to the stay granted on 3 March 2014[1], the decision of Deputy President Tamberlin and Member Bartsch dated 27 June 2014 (the Substantive Decision)[2], the decision of Griffiths J on appeal to the Federal Court[3] and the determination of the Full Court of the Federal Court[4] are in evidence before me.
[1] Ekinci and Ors and Civil Aviation Safety Authority [2014] AATA 114
[2] Ekinci and Ors and Civil Aviation Safety Authority [2014] AATA 424
[3] Ekinci v Civil Aviation Safety Authority [2014] FCA 905
[4] Ekinci v Civil Aviation Safety Authority [2014] FCAFC 180
This application was opposed by Mr Ekinci, who relied upon parts of the previous decisions and determinations (referred to above) and his affidavit filed 27 February 2014. In particular I was taken to the circumstances of a visit by representatives of the Respondent to the Applicants’ place of business on or about 24 February 2015.[5]
[5] Annexure 2 to Affidavit of Reha Ekinci, filed the 27 February 2015
ISSUES
The issue which this Tribunal must determine is whether the stay should be revoked, left in place, or in some other way varied.
RELEVANT CONSIDERATIONS
Given the history of this matter, which I have set out below, the parties recognised that the application was, in essence, a stay application under s 41(2) of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act) rather than simply a revocation application under s 41(3) of the AAT Act. Downes J in Re Scott & Australian Securities Investment Commission [2009] AATA 798 at [4] notes the matters for consideration in determining whether it is appropriate to grant a stay include the following:-
(a)The prospects of success.
(b)The consequences for the applicant of refusal of a stay.
(c)The public interest.
(d)The consequences for the respondent in carrying out its functions depending on whether the stay is granted or not.
(e)Whether the application for review would be rendered nugatory if a stay were not granted.
(f)Other relevant matters that are relevant, amongst which I would include the length of time the ban has already been in place and the gap between today and the hearing of the application.
I have had regard to these matters in making this determination as is set out later in these reasons and having generally accepted the thrust of the submissions of counsel for the Respondent.
I have also had regard to s 9A of the Civil Aviation Act 1988 (Cth) which provides:-
In exercising its powers and performing its functions, CASA [the Respondent] must regard the safety of air navigation as the most important consideration.
BACKGROUND
Given the unusual nature of the matter now before this Tribunal, it is of value to set out the background.
On 24 January 2014 a delegate of the Respondent made decisions to cancel and/or suspend licences, certificates and approval and permits held by the Applicants, namely:-
(a)Cancel Aircraft maintenance engineer licence No. L187910 (LAME) held by Mr Ekinci.
(b)Suspend Certificate of Approval (CofA) for aircraft maintenance No. 1-HCC69 issue 02 held by Air Combat Australia Pty Ltd (Air Combat).
(c)Cancel Airline Transport (ATPL), commercial (CPL), private (PPL) and student pilot licences (aeroplane and helicopter) ARN 187910 held by Mr Ekinci.
(d)Cancel Air Operations Certificate (AOC) No. S594248-05 held by Air Combat.
(e)Cancel Air Operators Certificate (AOC) No. S576371 held by Cloud Nine Helicopters Pty Ltd (Cloud Nine).
(f)Cancel Chief Pilot Approval Nos. 1-5G8V1 & SBAO/151/2004 held by Mr Ekinci.
(g)Cancel Chief Flying Instructor (CFI) Approval Nos. SBAO/150/2004 & 1-SDJTO held by Mr Ekinci.
(h)Cancel the endorsement training approval No. SYDR/177/2007 held by Mr Ekinci.
On 3 March 2014 Deputy President Tamberlin granted a conditional stay of the Respondent’s decision pending the hearing of the substantive application for review of that decision.
The hearing of that application before the previous Tribunal was expedited.
On 27 June 2014 the previous Tribunal set aside the decisions under review and substituted decisions that Mr Ekinci’s aircraft engineer’s licence be suspended for a period of one year, that in relation to the certificate of approval Air Combat must employ a suitably qualified aircraft maintenance engineer other than Mr Ekinci and that it be a condition of the Air Operator’s Certificate of both Air Combat and Cloud Nine that they employ a person or persons to hold a position of Chief Executive Officer other than Mr Ekinci.
The Chief Pilot approvals were cancelled, the Chief Flying instructor appointments were cancelled and an ATO delegation was cancelled.
Air Combat and Cloud Nine did not challenge the Substantive Decision, however, Mr Ekinci appealed to the Federal Court and subsequently to the Full Court of the Federal Court.
On 15 August 2014 Mr Ekinci sought a stay of the orders made in the Substantive Decision. That stay application was dismissed by Griffiths J in the Federal Court.
The appeal in relation to the Substantive Decision was heard by the Full Court and judgment was delivered on 23 December 2014. An amended notice of appeal apparently set out six questions of law supported by ten grounds concerning various aspects of the Tribunal’s Substantive Decision.
The Respondent’s cross-appeal concerned two matters, both being the claim for failure by the Tribunal to give reasons for setting aside the Respondent’s decision to suspend Mr Ekinci’s pilot’s licence and revoke his approval to give conversion training.
The cross-appeal by the Respondent was successful and those matters were remitted to the Tribunal to be addressed and for reasons to be given.[6]
[6] Ekinci v CASA [2014] FCAFC 180 at [106] – [122].
Mr Ekinci was successful on two of his ten grounds of appeal, the first being ground 7 where it was held by the Full Court (in paragraphs 88 and 89) that Mr Ekinci was not provided with procedural fairness concerning the order of the Substantive Decision and that he was not told that the Tribunal was considering, or afforded an opportunity to address, the imposition of the conditions on the certificate of approval of Air Combat and the air operator certificate of Air Combat and Cloud Nine.
The second successful ground of appeal, which was common to both parties, regards a finding that one particular matter was not properly before the Tribunal. It is seemingly a moot point.
The remission of the matter back to the Tribunal is for the limited purposes of conducting a hearing as to any further proposed orders to exclude Mr Ekinci from managing Air Combat and Cloud Nine, to consider and give reasons for any decision in relation to Mr Ekinci’s pilot licences and his approval to give conversion training, and to make consequential adjustments to the orders in the Substantive Decision which are not affected by the appeal decision other than because of the ‘interconnection’ with the affected orders.
The appeal to the Full Court was in relation to the procedural fairness issues and was of narrow compass.
The Full Court set aside the Substantive Decision which had the impact of enlivening the stay made by Deputy President Tamberlin on 3 March 2014.
CONSIDERATION
The evidence of the CASA officers contained in their affidavits as to the state of the hangers was taken into account and I do not intend to repeat that evidence in these short reasons. Similarly the explanations of Mr Ekinci were taken into account. These statements were of course untested.
Counsel for Mr Ekinci provided an outline of submissions and spoke to those submissions.
In those submissions he set out a short history of the proceedings and implicitly conceded that his client’s defence of the stay remaining in place was somewhat difficult given the circumstances that have arisen since that time.
He argued that the Substantive Decision of the previous Tribunal in rejecting the evidence put forward by the Applicants and then going further to make positive findings and conclusions may have reinforced the argument that “the conclusions made by the Tribunal against [Mr Ekinci] was impermissibly infected with an element of bias …”.[7]
[7] Applicant’s Submissions dated 29 April 2015, at [15].
He went on to say that this resulted in the Tribunal being reconstituted for the purposes of the present hearing. I am not sure that the final assertion is accurate or entirely accurate.
However, it is apparent that since the stay was granted in March 2014 significant adverse findings have been made against Mr Ekinci.
A number of the Respondent’s complaints and the findings made with respect to the Respondent’s investigations seem to be consistent with the evidence of the two officers of the Respondent who recently observed the state of the hanger from which the Applicants conducted their businesses.
In determining the Revocation Request this Tribunal has taken into consideration the various findings which have been made in past determinations, including the approach adopted by the Full Court upon remitting the matter back to this Tribunal.
It is clearly open to this Tribunal on a final determination to cancel or suspend licences. Such suspensions can be for the same time as that which was imposed by the previous Tribunal, longer or shorter times.
Counsel for Mr Ekinci made submissions on the approach adopted by the Respondent in relation to its ‘just culture’.[8]
[8] Ibid at [28].
What was urged upon me was that I adopt that ‘just culture’ given the change in circumstances, particularly having regard to the February 2015 affidavit of Mr Ekinci.
However, what I have taken into account is the fact that there was a fully contested hearing where findings were made. I have considered the determinations made in that hearing, having regard to the limited criticism of it by the Full Court and Griffith’s J refusal to grant Mr Ekinci’s application to stay the Tribunal’s Substantive Decision.
This is a much different application to that which came before Deputy President Tamberlin and which resulted in the stay being granted. A number of conclusions were accepted and I have had regard to paragraph 83 of the Full Court decision which provided:-[9]
It is evident that the AAT concluded that, for purposes of ss 28(1)(a) and (b) of the CA Act, Air Combat and Cloud Nine could only hold AOCs if those responsible for compliance with aviation legislation would not be under Mr Ekinci’s influence. Accordingly, it imposed conditions on the relevant AOCs which had the effect of excluding Mr Ekinci from occupying what the AAT described as a “supernumerary position” with the companies. We are not persuaded that the AAT acted illogically or unreasonably in the relevant legal sense in imposing those conditions. Having regard to the evidence and the AAT’s findings regarding Mr Ekinci’s conduct and lack of fitness and propriety, it was plainly open to the AAT to conclude that Mr Ekinci was not an appropriate person to be involved in the senior management of the two companies in order to satisfy the requirements of ss 28(1)(a) and (b) of the CA Act.
[9] Ekinci v CASA [2014] FCAFC 180, at [83].
The prospects of success to which Deputy President Tamberlin referred in the reasons accompanying the stay[10] were substantially determined by findings of fact, much of which was not disturbed by the Full Court appeal.
[10] Ekinci v Civil Aviation Authority [2014] FCA 905.
There was an arguable case that it has been addressed. Such was the concern of Griffith J that he declined a further stay application. The circumstances since that time are, despite the evidence of Mr Ekinci, not markedly different.
As I said earlier the evidence of the two witnesses who attended the Applicants’ place of business in February this year resonates with some of the findings and evidence in the Substantive Decision.
Mr Ekinci submitted that the impact on him, his businesses and those who work for him and for whom he provides services will be impacted and that there will be a severe disruption.
I am conscious of that and I am also conscious of the circumstances to which Mr Ekinci refers in his February 2015 affidavit.
Mr Ekinci’s prospects of success are limited given the earlier comments made in the Full Court, above.
I have thus considered the consequences for Mr Ekinci of refusal of a stay remaining in place, the dismissal of the stay as it applies to him does not to stop the businesses but prevents him from exacting rights in relation to aircraft. This is particularly of concern given the legislative imperative as to the public interest, set out earlier.
The consequences for Mr Ekinci are significant, however the public interest must in this case prevail.
There is a possibility that if Mr Ekinci is successful the rehearing would be rendered nugatory if a stay were not granted, but given the determination of the Full Court and the findings it is not such as would convince me to permit the stay to remain. In that regard, as I indicated above, many of the findings of the previous Tribunal’s determination remain in place.
I have considered the time from this determination to the hearing later this year.
DECISION
I am not satisfied that the stay should remain in place as it was made by Deputy President Tamberlin. There is a significant public interest in flight safety which is reflected in the legislation to which I have alluded earlier, particularly s 9A of the Civil Aviation Act 1988 (Cth), which is supportive of the Revocation Request.
The consequences of the stay are significant for the Applicants but they are much more significant, in my view, given the findings and the circumstances to which I have referred above, in terms of the broader community.
As such this Tribunal grants the Respondent’s request pursuant to s 41(3) of the Administrative Appeals Tribunal Act 1975 (Cth) and revokes the stay granted by Deputy President Tamberlin on 3 March 2014. Pursuant to s 41(2) of the Administrative Appeals Tribunal Act 1975 (Cth) the Tribunal stays the Respondent’s decisions dated 24 January 2014 in respect of Air Combat Pty Ltd and Cloud Nine Helicopters Pty Ltd until further order and subject to the following directions and conditions:
(a)Air Combat Pty Ltd and Cloud Nine Helicopters Pty Ltd may continue to operate under their respective Air Operators’ Certificates provided such companies employ a person or persons, other than Mr Ekinci, to hold the position of Chief Executive Officer and who is acceptable to the Civil Aviation Safety Authority, for the purposes of satisfying the requirements of s 28(1)(a) of the Civil Aviation Act 1988 (Cth); and
(b)It is a condition of the Certificate of Approval pursuant to Civil Aviation Regulations 1988 (Cth) reg 30(3) that Air Combat Pty Ltd is to employ a suitably qualified aircraft maintenance engineer LAME, other than Mr Ekinci, and who is acceptable to the Civil Aviation Safety Authority, to be responsible for the supervision and certification of all maintenance activities undertaken at Air Combat Australia Pty Ltd.
Liberty to apply is reserved to all parties in relation to the above orders and conditions.
I certify that the preceding 52 (fifty-two) paragraphs are a true copy of the reasons for the decision herein of The Hon. Robert Benjamin, Presidential Member ............................[sgd]............................................
Associate
Dated 22 May 2015
Date of hearing 29 April 2015 Counsel for the Applicant Mr A Ribbands Solicitors for the Applicant Maitland Lawyers Counsel for the Respondent Mr B J A Sheilds Solicitors for the Respondent In house
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