Repacholi and Civil Aviation Safety Authority
[2002] AATA 196
•22 March 2002
DECISION AND REASONS FOR DECISION [2002] AATA 196
ADMINISTRATIVE APPEALS TRIBUNAL )
) No W2002/79
GENERAL ADMINISTRATIVE DIVISION )
Re GERALD REPACHOLI
Applicant
And CIVIL AVIATION SAFETY AUTHORITY
Respondent
DECISION
Tribunal Mr R D Fayle, Senior Member
Date22 March 2002
PlacePerth
Decision The application for a stay is refused.
........….(sgd R D Fayle).....................
Senior Member
CATCHWORDS
CIVIL AVIATION – Stay Application – suspension of Pilot's licence – breaches of Civil Aviation Act and Civil Aviation Regulations – whether hearing nugatory if no stay granted – whether stay is desirable – air safety issues – stay refused.
Administrative Appeals Tribunal Act 1975 – s 41(2)
Civil Aviation Act 1998 ss 9, 9A, 20A
Civil Aviation Regulations 1998 – regs 157, 268, 269
REASONS FOR DECISION
22 March 2002 Mr R D Fayle, Senior Member
On 5 March 2002, the Civil Aviation Safety Authority ("CASA" or "the respondent") wrote to Mr Gerald Repacholi ("the applicant") giving notice that his commercial pilot licence, private pilot licence and restricted private pilot licence ("the licence") was suspended pending further investigation. The notice specified that the suspension decision was made pursuant to regulation 268 of the Civil Aviation Regulations 1988 ("the regulations"). The effect of that notice was to suspend the licence for a period of 28 days or until the completion of the investigation, whichever is earlier. The suspension period can be increased within the time specified should CASA give further notice, pursuant to regulation 269, to the applicant to show cause as to why the licence should not be suspended or cancelled.
On 6 March 2002 the applicant applied to this Tribunal pursuant to s29 of the Administrative Appeals Tribunal Act 1975 ("the AAT Act") to grant a stay pursuant to s41(2) of the AAT Act. The stay hearing was expedited and heard on 14 and 15 March 2002. At the time the Tribunal had not been provided with documents pursuant to s37 of the AAT Act. It had before it the following exhibits:
R1 CASA's letter of 5 March 2002 to the applicant;
R2 Personal details of Terence Lindsay Farquharson;R3Comments by Mr Farquharson on the affidavits of Mr Repacholi, Anthony Richard Mitchell and Bill Hamilton*;
R4Comments by Mike Nolan (based on observation of a video tape [of the alleged incident])*
A1Affidavit of Gerald Keith Repacholi, 13 March 2002;
A2 Affidavit of Richard Elmore Coxon, 13 March 2002;
A3 Affidavit of Anthony Richard Mitchell, 13 March 2002;
A4 Affidavit of John Ray Hamilton, 13 March 2002;
A5 Affidavit of Winston James, 13 March 2002
* subject to objection by applicant as to relevance.
Mr Terence Lindsay Farquharson, Mr William John Dolby and Mr Michael John Nolan, the latter by telephone, gave evidence. No oral evidence was presented by or for the applicant. A purported video of the flying incident leading to the suspension of 5 March 2002 (A1) was not produced by the applicant for viewing on the grounds that it may become evidence for any defence of possible civil or criminal actions pursued in future by the respondent. For those reasons the Tribunal did not press for the video evidence. It was confirmed at the hearing that the video held by the respondent was different to that in the possession of the applicant, so without authentication the applicant opposed that too as being admitted into evidence.
Mr Chris McKeown, Barrister represented the applicant, whilst Mr Chris Stevenson, Mallensons Stephen Jaques, represented the respondent.
The letter from CASA of 5 March 2002, advising the applicant of the suspension is central to these proceedings and its essential content is reproduced below for completeness:
"Dear Mr Repacholi,
Notice of Suspension of Pilot Licence Pending Investigation
I am writing to give you notice that I have reason to believe that there may exist facts and circumstances that would justify the suspension or cancellation of your commercial pilot (aeroplane) licence, private pilot (aeroplane) licence and restricted private pilot (aeroplane) licence number 019178 under subregulation 268(1) of the Civil aviation Regulations 1988 ("CAR 1988") on grounds specified in regulation 269 of the CAR 1988. I also have reason to believe that there may be a serious risk to air safety if your pilot licence were not immediately suspended, pending further investigation.
The facts and circumstances and the grounds of my decision are set out below:Facts and Circumstances
You, Gerald Keith Repacholi are now, and at all times mentioned in this notice were, the holder of an Australian commercial pilot (aeroplane) licence, private pilot (aeroplane) licence number (sic) and restricted private pilot (aeroplane) licence number 019178.
On 10 January 2002 you held a valid class 1 medical certificate valid until 29 September 2002.
Your licence is endorsed authorising you amongst others to fly a Cessna 172 aircraft.
Your licence is endorsed with a Float Alighting Gear endorsement.
On 10 January 2002, you allegedly flew a Cessna 172, believed to be VH-THD ("THD") from a trailer attached to a truck at Jandakot airport.
On the 10 January 2002, it appears that having completed the take off in THD from the trailer at Jandakot airport you commenced a left turn below 500 feel above the ground level.
Further, it appears that you then completed a high speed, low level fly by at Jandakot Airport. Information provided to CASA indicates that the height of the aircraft was less than 100 feet above ground level.
The take off from the trailer appears to have been conducted without using any known aircraft performance data. There appears to be no evidence of you instigating procedures to prevent the aircraft from moving forward on the trailer, or preventative measures to stop an inadvertent collision with the vehicle and its occupant/s. By not doing so you endangered that person or persons.
From the matters set out above, I have reason to believe that you may have thereby contravened section 20A(1) of the Act by flying THD in a reckless manner such that you endangered the life of another person in that you flew THD from a trailer attached to a moving vehicle which was occupied by at least one person.
The take off from the trailer appears to have been conducted without using any known aircraft performance data. There appears to be no evidence of you instigating procedures to prevent the aircraft from moving forward on the trailer, or preventative measures to stop an inadvertent collision with the trailer an/or (sic) vehicle.
From the matters set out above, I have reason to believe that you may have thereby contravened section 20A(2) of the Act by flying THD in a reckless manner such that you endangered a person, being the driver of the vehicle, and/or the property of another person, being the trailer, and the vehicle towing the aircraft.
I have reason to believe that you may have contravened subregulation 157(1)(b) of the CAR 1988 by conducting a low fly by at an estimated 100 feet above ground level or less.
I have reason to believe that you may have contravened subregulation 166(1)(g) of the CAR 1988 by turning left after take off below 500 feet above ground level.Grounds for Suspension
Paragraph 268(1) of the CAR 1988 relevantly provides that where CASA has reason to believe that there may exist facts and circumstances that you justify the variation, suspension or cancellation of a pilot licence under regulation 269 and there may be serious risk to air safety if the licence were not suspended, CASA may suspend the licence.
Paragraph 269(1)(a) of the CAR 1988 provides that it is a ground for the suspension or cancellation of a licence if the holder of the licence has contravened a provision of the Civil Aviation Act of the Civil Aviation Regulations.
Paragraph 269(1)(d) of the CAR 1988 relevantly provides that it is a ground if the holder of a licence is not a fit and proper person to have the responsibilities and exercise and perform the functions and duties of a holder of such a licence.
Your actions as the pilot in command of THD on 10 January 2002 indicates (sic) to me that you may not be a fit and proper person to have the responsibilities and exercise and perform the functions and duties of a holder of such a licence because of an apparent lack of judgement and scant regard fro (sic) the safety of persons and property.
On the basis of the facts and circumstances set out above, I have reason to believe that you have contravened the provision of subsection 20A(1) and 20A(2) of the Act, subregulation 157(1) and subregulations 166(1) (sic) of the CAR 1988.Serious Risk to Safety
On the basis of the facts and circumstances described above, I have reason to believe that there is an immediate risk to air safety if your pilot licence were (sic) not suspended immediately, pending further investigation into these matters.
Your actions involving VH-THD on 10 January 2002 indicates (sic) a clear failure on your behalf to comply with specific requirements of aviation legislation and give me reason to be concerned as to your suitability to hold a pilot licence.
Therefore, until the facts and circumstances of this accident (sic) can be investigated thoroughly and such further action as may be appropriate taken by CASA, I have reason to believe that to permit you to continue to exercise the privileges of your pilot licence could pose a potentially serious and immediate safety threat to other aircraft, to such passengers as you may carry in the aircraft you are operating, and to such other persons and property as may be affected by the operation of an aircraft under your control.Suspension
Accordingly, on the basis of the facts and circumstances and on the grounds described above, which I believe justify the suspension or cancellation of your pilot licence on the grounds specified in subrergulation 269(1)(a) and (d) of the CAR 1988, and because I believe there may be a serious risk to air safety if your pilot licences were not suspended immediately, pending further investigation, I hereby suspend your commercial pilot (Aeroplane) licence, your private pilot (Aeroplane) licence and your restricted private pilot (Aeroplane) licence number 019178 under subregulation 268(1) of the CAR 1988.
This suspension is effective from the date of this letter, and shall cease upon the completion of the investigation, or 28 days from and including the date of this letter, whichever is the earlier.
Surrender of Licence
Under regulation 301 of the CAR 1988, I also require you to surrender your licence to the Team Leader Flying Operations at the West Area Office of the Civil Aviation Safety Authority, in person, as 130 Fauntleroy Avenue, Cloverdale, Western Australia, or by posting your licences to PO Box 1082 CLOVERDALE WA 6982, by Friday 8 March 2002."
The letter was signed by Ian Ogilvie, General Manager, General Aviation Operations.
RELEVANT STATUTORY PROVISIONS
Civil Aviation Act 1988
"9 CASA's functions
(1) CASA has the function of conducting the safety regulation of the following, in accordance with this Act and the regulations:
(a) civil air operations in Australian territory;
(b) the operation of Australian aircraft outside Australian territory;
(c) developing and promulgating appropriate, clear and concise aviation safety standards;
(d) developing effective enforcement strategies to secure compliance with aviation safety standards;
(e) issuing certificates, licences, registrations and permits;
(f) conducting comprehensive aviation industry surveillance, including assessment of safety-related decisions taken by industry management at all levels for their impact on aviation safety;
(g) conducting regular reviews of the system of civil aviation safety in order to monitor the safety performance of the aviation industry, to identify safety-related trends and risk factors and to promote the development and improvement of the system;
(h) conducting regular and timely assessment of international safety developments.
(2) CASA also has the following safety-related functions:
(a) encouraging a greater acceptance by the aviation industry of its obligation to maintain high standards of aviation safety, through:
(i)comprehensive safety education and training programs; and
(ii)accurate and timely aviation safety advice; and
(iii)fostering an awareness in industry management, and within the community generally, of the importance of aviation safety and compliance with relevant legislation;
(b) promoting full and effective consultation and communication with all interested parties on aviation safety issues.
(3) CASA also has the following functions:
(a) co-operating with the Bureau of Air Safety Investigation in relation to the investigation of aircraft accidents and incidents;
(b) any functions conferred on CASA under the Civil Aviation (Carriers'Liability) Act 1959 , or under a corresponding law of a State or Territory;
(c) any functions conferred on CASA under the Air Navigation Act1920 ;
(d) any other functions prescribed by the regulations, being functions relating to any matters referred to in this section;
(e) promoting the development of Australia's civil aviation safety capabilities, skills and services, for the benefit of the Australian community and for export;
(f) providing consultancy and management services relating to any of the matters referred to in this section, both within and outside Australian territory;
(g) any functions incidental to any of the functions specified in this section.
(4) In performing the function under paragraph (3)(f), CASA may, under a contract with a foreign country or with an agency of a foreign country, provide services for that country or agency in relation to the regulation of the safety of air navigation or any other matter in which CASA has expertise. Those services may include conducting safety regulation in relation to foreign aircraft under the law of a foreign country.
(5) CASA's functions do not include responsibility for aviation security.
9A Performance of functions
(1)In exercising its powers and performing its functions, CASA must regard the safety of air navigation as the most important consideration.
(2)Subject to subsection (1), CASA must exercise its powers and perform its functions in a manner that ensures that, as far as is practicable, the environment is protected from:
(a) the effects of the operation and use of aircraft; and
(b) the effects associated with the operation and use of aircraft.…
20A Negligent etc. operation of aircraft
(1)No person may operate an aircraft in a careless or reckless manner so as to endanger the life of another person.
(2)No person may operate an aircraft in a careless or reckless manner so as to endanger the person or property of another person."
Civil Aviation Regulations 1988
"157 Low flying
(1) An aircraft must not fly over:
(a) any city, town or populous area at a height lower than 1,000 feet; or
(b) any other area at a height lower than 500 feet.
Penalty: 50 penalty units.
(3) A height specified in subregulation (1) is the height above the highest point of the terrain, and any object on it, within a radius of:
(a)in the case of an aircraft other than a helicopter — 600 metres; or
(b)in the case of a helicopter — 300 metres;
from a point on the terrain vertically below the aircraft.
…
268 Suspension of licence, certificate or authority pending investigation
(1)Where CASA has reason to believe:
(a)that there may exist facts or circumstances that would justify the variation, suspension or cancellation of a licence or certificate or an authority on a ground specified in regulation 269; and
(b)that there may be a serious risk to air safety if the licence, certificate or authority were not suspended;
CASA may, by notice in writing served on the holder of the licence, certificate or authority, suspend the licence, certificate or authority.
(2) Where CASA suspends a licence or certificate or an authority in pursuance of subregulation (1), CASA shall forthwith investigate the matter, and the suspension shall cease upon the completion of the investigation or at the expiration of 28 days from and including the date on which the suspension took effect, whichever is the earlier, but without prejudice to the powers of CASA under regulation 269.
(3) Where:
(a)CASA, upon the completion of an investigation under this regulation, gives to the holder of the licence, certificate or authority a notice under subregulation 269 (3); and
(b)the suspension of the licence, certificate or authority under this regulation had not ceased before the completion of the investigation;
the licence, certificate or authority shall remain suspended during the time specified by CASA in that notice as the time within which the holder of the licence, certificate or authority may show cause why the licence, certificate or authority should not be varied, suspended or cancelled under regulation 269.
…
269 Variation, suspension or cancellation of licence, certificate or authority
(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, namely:
(a)that the holder of the licence, certificate or authority has contravened, a provision of the Act or these regulations, including these regulations as in force by virtue of a law of a State;
(b)that the holder of the licence, certificate or authority fails to satisfy, or to continue to satisfy, any requirement prescribed by, or specified under, these regulations in relation to the obtaining or holding of such a licence or certificate or an authority;
(c)that the holder of the licence, certificate or authority has failed in his or her duty with respect to any matter affecting the safe navigation or operation of an aircraft;
(d)that the holder of the licence, certificate or authority is not a fit and proper person to have the responsibilities and exercise and perform the functions and duties of a holder of such a licence or certificate or an authority; or
(e)that the holder of the licence, certificate or authority has contravened, a direction or instruction with respect to a matter affecting the safe navigation and operation of an aircraft, being a direction or instruction that is contained in Civil Aviation Orders.
(2) A notice under subregulation (1) shall set out the grounds for the decision.
(3) Before taking action under this regulation to vary, suspend or cancel a licence or certificate or an authority, CASA shall:
(a) give notice, in writing, to the holder of the licence, certificate or authority of the facts and circumstances that, in the opinion of CASA, warrant consideration being given to the variation, suspension or cancellation of the licence, certificate or authority under this regulation; and
(b) allow the holder of the licence, certificate or authority to show cause, within such time as CASA specifies in that notice, why the licence, certificate or authority should not be varied, suspended or cancelled under this regulation.
(4) The time specified by CASA in the notice under subregulation (3) as the time within which the holder of the licence, certificate or authority may show cause why the licence, certificate or authority should not be varied, suspended or cancelled under this regulation shall be a time that is reasonable in all of the circumstances of the particular case.
…
301 Surrender of documents
(1) The holder of a licence, certificate or other document issued, or required to be kept, under these regulations, or a person having the custody of a licence, certificate or other document issued, or required to be kept, under these regulations, shall, if CASA by notice in writing so requires, surrender the licence, certificate or document to CASA within such time as is specified in the notice.
Penalty: 5 penalty units."
Administrative Appeals Tribunal Act 1975
"41 Operation and implementation of a decision that is subject to review
(1) Subject to this section, the making of an application to the Tribunal for a review of a decision does not affect the operation of the decision or prevent the taking of action to implement the decision.
(2) The Tribunal or a presidential member 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 or presidential member 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 or presidential member considers appropriate for the purpose of securing the effectiveness of the hearing and determination of the application for review."
DISCUSSION AND REASONS
This is a hearing pursuant to s41(2) of the AAT Act to decide whether to grant a stay. As such it is not the occasion to try the issues or to make findings of fact, which is the Tribunal's role on the substantive hearing; (c/f Re Griffiths Grif-Air Helicopters Pty Ltd and Civil Aviation Authority (1993) 31 ALD 380 at para. 55).
The applicant's own evidence was confined to his affidavit (A1). That sets out the applicant's qualifications. It confirms his holding of commercial pilot licence number 019178 and a LAME, which the Tribunal understands to be an acronym for "licensed aircraft maintenance engineer". The applicant commenced flying in March 1965 and has in excess of 8,000 hours flying time. He has an endorsement for flying a Float Plane. The Tribunal understands that the applicant's endorsement covered the aircraft in question, a Cessna 172 which was fitted with fixed floats but had no wheels. The applicant's Float Plane endorsement was first attained in the USA in 1993 where he gained many ideas about how to operate a float plane safely. He contends that "using a trailer or vehicle to launch a float plane from land is a proven aviation industry practice". He maintains that in the USA the Federal Aviation Authority ("FAA") set Rules and Guidelines for seaplane operations and practices. He deposed that those are "used here in Australia". He further deposed:
"Using a long bed Helicopter trailer with the aircraft sitting inside a frame and using a long runway as at Jandakot Airport is not a serious risk to air safety. There was ample space to abort the take-off if required. There were no passengers, no aircraft were in the vicinity at the time, the tower was closed ie: after hours and is an MBZ. We operated at 5.00am." (para. 6 of A1)
The applicant further deposed that at the time (that is, on 10 January 2002) he had two radios in operation – one operating as for the MBZ and the other to keep in contact with the driver of the trailer. The Tribunal infers from this that the driver of the vehicle was able to speak to the pilot.
It is clear from the applicant's affidavit that he is a very experienced pilot, capable of safe low level and low speed flight as would be required for the agricultural spray operations for which he has considerable experience.
The applicant deposed that if a stay is not granted then "loss of my livelihood and goodwill of my business is a major issue. Agricultural flying is my steady source of income. …The fact, that I have a family to support, bills to pay and commitment to my staff, it will be almost impossible to meet these commitments without a steady income, and flying activities are basically all I know." (paras. 11 & 12 of A1)
From the evidence of Messrs Farquharson, Dolby and Nolan the Tribunal was able to form a background to the events that led to the issuing of the notice pursuant to regulation 268 on 2 March 2002 (R1).
In December 2001 the applicant telephoned Mr Dolby, Team Leader Flying Operations, Western Area, to discuss the problem which he, the applicant, was having in launching his float plane, the Cessna 172 with fixed floats. Apparently the applicant was experiencing some difficulties with the authorities controlling aeroplane take offs on water and he was not able to get permission to take off from the river. During the telephone call the applicant raised the issue of using a "dolly" to take off from the airport, however he was concerned that the dolly would be damaged after take off when dropped. There was no conversation about the possible take off from a trailer.
About 16 January 2002, CASA received anonymous information that the applicant had taken off a Cessna float plane from Jandakot Airport in the early morning of 10 January 2002, flying from the back of a towed trailer. Mr Farquharson immediately called a meeting of his Flying Operations Team (comprised of 6 Flying Operations Inspectors), who reported to him. The Team, including Mr Dolby, was instructed to investigate the rumour and report back. A meeting was held some time later, at which it was reported that there might be a video of the incident. On 27 February 2002, a video, purporting to be of the incident on 10 January 2002, was provided confidentially to CASA. It was after viewing that video by the Flying Operations Team that the suspension letter of 5 March 2002 (R1) was served upon the applicant. That letter was issued from Canberra after having received a report and draft from Mr Farquharson on 1 March 2002.
Mr Dolby said that he did have a further telephone call with the applicant some time after 10 January 2002 (on 16 January 2002 according to A1), when the applicant admitted to having taken off from Jandakot Airport using a trailer to launch his float plane. Mr Dolby's evidence was that there was then no mention of a video of the incident. However, the applicant deposed that the procedure "worked well and a number of people from CASA said they liked it and would like to see the video." (para. 7 of A1)
The depositions from Richard Coxton (A2), Anthony Mitchell (A3), William Hamilton (A4) and Winston James (A5), all experienced pilots can be summed up in the following way. All the deponents are qualified and experienced pilots. With the exception of Mr Hamilton, all have known the applicant in a professional capacity over many years and consider him to be a competent and experienced pilot who demands a high standard of discipline and safety from his pilots and staff, a reference to the flying business operated by the applicant, for which he holds a Chief Pilots licence. Mr Mitchell (A3) opines that the launch of the float plane from a trailer whilst unconventional, is not unsafe. Mr James (5) deposes that the launching of the float plane from a helicopter trailer towed behind a vehicle, whilst not usual, does not present unusual risk. He further deposes that because the applicant is a qualified LAME that provides an added advantage for supervising the procedure. Mr Hamilton (A4), whose qualifications and experience are impressive, deposed that transporting a fixed float aeroplane over land is not desirable "as the degree of potential damage cannot be measured and the additional risk to future safe flight cannot be known … because the undercarriage does not have the spring or oleo shock absorbing equipment of a wheeled undercarriage." (para 10 of A4) Mr Nolan, for the respondent did not disagree with this proposition and added that examination of float plane airframe by x-ray to detect fractures was not mandatory. Mr Hamilton opines that whilst there is risk in all aviation activities that risk in relation to the activity in question was minimised by use of volunteers to assist. There was no corroborating evidence that those assisting on the day, including the driver of the towing vehicle were either experienced or volunteers.
Mr Farquharson, for the applicant, told the Tribunal that in early March 2002 CASA decided to suspend the applicant's licence to allow it to investigate the incident (then confirmed). In sum there were several reasons for concern and investigation – (i) the fact that the take off had been undertaken without prior establishment, with CASA, of the procedure as a tried, tested and approved by the aircraft manufacturer; (ii) without prior satisfying of CASA that the operation was in conformity with the aeroplane's flight manual and operations manual to ensure the safe conduct of the flight operation; (iii) concern that the operation exposed the driver of the tow vehicle to danger and risk; (iv) concern that the left turn shortly after take off, below 500 feet, was in breach of air traffic regulations and may have exposed the pilot and others to unnecessary risk or danger; (v) concern that the low pass over the Jandakot airstrip after take off was in breach of air traffic regulations and may have exposed the pilot, others and property to unnecessary risk or danger; and (vi) concern that the applicant may try the procedure again unless suspended whilst the investigation is conducted. In summing up Mr Farquharson said:
"In our opinion, in acting the way he has, [the applicant] is capable of blatantly disregarding flight rules. Until we [CASA] have worked through an investigation, we consider [the applicant] represents a threat to air safety."
In regard to the matter of safe operation, Mr Nolan referred to the need for mandatory testing of the piston driven engines prior to take off, the "run-up" tests, which required the pilot to test the propeller(s) pitch mechanism and, separately, the motor at full power, whilst the aircraft was braked and stationary. It was not apparent from the video that those procedures had been carried out whilst the float plane was in its frame on the trailer. Mr Nolan, who has considerable experience with float planes, said that as a result of seeing the video he had the following concerns: whether the flight manual specified appropriate take off distance under the circumstances; the float plane was not fitted with brakes so it was not apparent how the take off might be aborted given certain possible conditions which made it advisable or necessary; as float planes do not control direction at take off by using their rudder, there was concern about how the direction might be controlled on and from the back of the trailer or at low airspeed; there was no known established procedure for the take off such that one could determine beforehand that it would actually work; as float planes have no suspension or shock absorbers (unlike those with undercarriage wheels) it raises questions about the effect of the procedure on the metal components of the airframe; and that there was no apparent safety protection for the driver of the vehicle since there was possible danger to the driver, the pilot and anyone who happened to be around if the pilot had to abort and/or the propeller struck the vehicle on take off. He also opined that there may be greater risk from a low level left turn after take off because float planes then have a lower flight performance because of increased drag from the floats. In this regard he opined that such turns should be carried out at a safe altitude.
Mr Nolan also told the Tribunal that in his 12 years experience with float planes he had never heard of the procedure adopted by the applicant to take off from the trailer. He said the fact that the procedure was successful on 10 January 2002 does not mean it is necessarily a safe or proven procedure, since there are many things that ought to be considered before coming to such a conclusion. That is why CASA needs to be satisfied that it is a tried and tested procedure. He made specific reference to what he saw as the recklessness of the take off procedure adopted by the applicant. He said that just viewing the video, there was no apparent means of preventing the propeller going into the cabin of the truck and that is reckless – the same as if the aeroplane had struck the truck on take off endangering the pilot and others. He added that the fact that something [the take off] was tried for the first time and there was no evidence of prior consultation by the applicant with experts or the authorities [CASA], together with an apparent disregard for the regulations, was reckless.
During the hearing there was discussion as to how the suspension of licence 019178 may affect the applicant's Chief Pilots ("CP") licence. It was submitted that the aerial business operation in which the applicant is engaged needs a CP licence and part of that person's duties is to carry out surveillance and supervision of the employed pilots. That task necessarily involves the CP in flying. So a CP whose private/commercial flying licence is suspended (as in this instance) cannot fulfil his/her entire duties as a CP and operate within the regulations. That constraint would of itself limit the scope of mandated duties to be performed by the CP. The conclusion in this regard is that so long as CP is unable to perform all of the required duties, to that extent that entity has an ineffective CP and therefore its operations are necessarily restrained, unless it appoints another CP. Mr Farquharson said in evidence that CASA had indicated to the applicant that it would treat with favour a proper application to appoint another qualified person to CP of the applicant's business.
IS A STAY REQUIRED TO SECURE THE EFFECTIVENESS OF THE HEARING AND DETERMINATION OF THE APPLICATION FOR REVIEW?Subsection 41(2) of the AAT Act requires the presiding member hearing the stay application to take into account the interests of any persons who may be affected by the review (that is, the subsequent merits review), to determine whether it is desirable to stay, in this case, the suspension notice, for the purpose of securing the effectiveness of the hearing and determination of the application for review.
Mr Stevenson submitted that those persons affected by the decision to suspend the applicant's licence extended beyond the applicant and the respondent to include, in a case concerning air navigation safety, the general public. He submitted that the alleged incidents, the take off, the low level turn and the low level pass, were serious and that, if proved, they showed a contempt for the air navigation law intended to secure the safe operation of aircraft in which case the applicant may well be a menace to the public; c/f Re Pelling and Secretary, Department of Aviation (1984) 5 ALD 638.
Mr Stevenson further pointed to the decision of Deputy President Forgie and Members Gibson and Julian on 27 August 1993 in Re Griffiths Grif-Air (supra) where the concept of "desirable" in terms of s41(2) of the AAT Act is discussed. In that Tribunal's opinion the term connotes a positive aspiration – that is, something worthy of achievement towards which one should actively aim, a reference to the decision in Re Celik and Department of Immigration and Ethnic Affairs (1988) 9 AAR 215. And later, a relevant reference from the same decision is the observation that discretions are granted by statue so that attention may be given to individual cases. He said that it would require a strong prima facie demonstration that a decision to suspend a licence was totally unreasonable in the sense of being without foundation in fact or law for the Tribunal to override it by granting a stay; c/f Re Mc Pherson v Civil Aviation Authority (1991) 22 ALD 754 (Ryan J). In the present case, Mr Stevenson submitted, officers of the respondent, experienced in and responsible for the proper administration of the controlling Act and Regulations, made a decision to suspend pending investigation and their reasons for having made that decision must be upheld pending that investigation, absent that decision on its face being totally unreasonable. He submitted that the Tribunal should be most cautious in setting aside the suspension, by the grant of a stay, having regard to the statutory responsibilities of the respondent imposed by s9 and s9A of the Act and its own expertise in fulfilling those obligations.
Mr McKeown submitted that there was indeed a clear case supporting the stay order. He submitted that it took the respondent nearly two months to decide to impose a stay because the applicant, in their opinion (not admitted), had operated an aircraft in a careless or reckless manner so as to endanger the life of another person or property. This he said was not apparent from the evidence since it is clear that the applicant is a competent and experienced pilot and that there is no likelihood that the take off procedure would be repeated, simply because there is now no need. In his submission the applicant has been denied natural justice, which would demand that the respondent should have made inquiries of the applicant about the circumstances of and relevant events leading up to the take off on 10 January 2002. He said that despite the applicant having advised the respondent on 16 January 2002 that he had made the take off in question, and despite offering to discuss it with them, the respondent made no attempt to do so and waited about three weeks before issuing the suspension notice under Reg 268 (R1). Mr McKeown submitted that if the respondent was serious about a concern that the procedure was dangerous or reckless or that the applicant may repeat it, then they ought to have issued the suspension notice immediately, on learning of the incident, which would have allowed them time to investigate. Instead, it appears they investigated, without reference to or contact with the applicant, before issuing the suspension notice under Reg 268. That action precluded the applicant any opportunity to satisfy them about their safety concerns. In those circumstances, he submitted, the suspension is a punitive rather than a safety measure. It gave the applicant no recourse or opportunity to show cause. It is punitive in the sense that it denies the applicant his right to carry on his gainful employment. It was punitive rather than a safety measure because there was no evidence that the applicant would repeat the take off. Mr McKeown submitted that the most appropriate course of action in the circumstances, where there was no obvious threat to persons (including other aircraft, crew and passengers) or property or to air navigation generally, would have been to have given the applicant notice pursuant to Reg 269(3). Such a notice would have allowed procedural fairness in that the applicant is given time to show cause as to why the licence should not be suspended, varied or cancelled.
In support of those contentions Mr McKeown said that the evidence is that the procedure was safe and that it had been proven under FAA rules. He further submitted that the operation was executed safely, with precautions taken to ensure that the float plane was properly positioned and anchored to the trailer and that the safety of the driver was taken into account. He submitted that the applicant is an experienced pilot who controlled the actual moment of take off to ensure more than sufficient speed and power to affect a prompt and safe take off, which happened. There was, he submitted no threat to the safety of any person or property. He further submitted that the left turn soon after take off at low level was safe as was the low pass over the airstrip because the MBZ communications satisfied the applicant that there was no other aircraft in the zone, an outcome of the precaution of taking off early in the morning before the traffic increased and the airport went over to tower control. He further submitted that the low pass over the airstrip was safe because an airstrip is a low fly area by definition.
Mr McKeown further submitted that not to grant a stay would render the hearing of the application nugatory. The Tribunal understands this submission to be founded on the proposition that as at the time of the stay hearing there remained only 18 more days, at the most, for the suspension in terms of Reg 268 and after that the matter is otiose. Further, the Tribunal understands that this submission is also founded on the proposition that to continue the suspension beyond the 28 day period then the respondent must give the applicant notice pursuant to Reg 269 to show cause. In that circumstance, it was submitted (or at least this is the Tribunal's understanding of the submission) that a suspension etc pursuant to Reg 269 becomes a fresh issue and would be the subject of a fresh application pursuant to s29 of the AAT Act.
On the other hand it was submitted for the respondent in this regard, that to grant a stay negates from that time, the effect of the suspension pending investigation. In this respect it would permit the applicant to continue flying when there may be a prima facie case to suspend although an investigation is incomplete. The respondent submitted that there was a prima facie case to suspend but that was not reliably established until the receipt of the video on 27 February 2002, from which time the respondent acted with alacrity to prepare and serve the notice pursuant to Reg 268 on 5 March 2002. In this regard Mr Stevenson submitted that there were a number of red herrings in the applicant's arguments. The first is the suggestion that the take off whilst unconventional was not unsafe because it succeeded. It was Mr Stevenson's submission that the evidence of Messrs Farquharson, Nolan and Dolby should be preferred – that the untried and unproven procedure was potentially unsafe and reckless as that term is used in s20A of the Act. Secondly, is the applicant's submission that it was safe because the procedure was conducted in the early hours of the morning whilst the airport was an MBZ and whilst the applicant was operating on MBZ assuring himself that there were no other aircraft in the zone. Mr Stevenson submitted that other pilots in the area would expect the applicant to have cleared 500' before turning and to turn before achieving that regulated height was reckless. He further submitted that the respondent has knowledge that pilots have used MBZ airports without making necessary radio contact to avoid incurring a landing fee. Thirdly, the applicant's submission that he is an experienced and safe pilot ensured that he would not have attempted the take off without being satisfied that it was proven and safe, that he knew the take off speed of the aircraft, he controlled the take off moment and that a take off at a faster speed (as implied by Mr McKeown) was an additional precaution and therefore safer. Mr Stevenson alluded to the evidence of Mr Nolan in particular which demonstrated to the Tribunal that there are several doubts about those claims and it was incumbent on the applicant, especially as an experienced pilot, to have sought the necessary approvals from CASA beforehand, and not to have deliberately breached the Regulations in relation to the turn and fly by. These facts, it was submitted establish a prima facie case for suspension pending investigation.
The Tribunal is satisfied that the suspension does impose a serious constraint on the applicant being able to pursue all the activities associated with his flying operations and related business. However, the Tribunal has no detailed evidence as to whether this poses financial hardship, serious financial hardship or even hardship on the applicant. All that the Tribunal has to go by is the affidavit of the applicant. That deposes that the suspension raises as a major issue the matter of "loss of my livelihood and goodwill of my business"; (para 11 of A1). In the opinion of the Tribunal there is simply insufficient evidence for it to conclude that without a stay the applicant's livelihood and the goodwill of his business is threatened or indeed irreparably damaged– especially considering that the stay was limited to 28 days maximum.
Mr Stevenson, for the respondent, submitted that in terms of s41(2) of the AAT Act there must be some good reason to grant a stay, bearing in mind that this is not the substantial hearing on merit.
In reaching its decision in this matter, whether it is desirable to grant the stay, the Tribunal must take into account the interests of the parties; the prospects of the application succeeding on review; the prospect that the applicant will suffer irreparable damage and hardship as a direct consequence of suspension pursuant to Reg 268; and whether the public safety is likely to be imperilled if the stay is not made. In its opinion the Tribunal must balance the interests of the applicant and those of the respondent and of the general public. Since the Tribunal is of the opinion that a prima facie case exists that the applicant was in breach of the Regulations and that there may be circumstances supporting a finding that the applicant operated the float plane on 10 January 2002 without due regard to the those Regulations and in a careless or reckless manner, the Tribunal, having regard to all of the evidence before it, makes the following findings:
That despite the evidence by and for the applicant, who denied the allegations, the material before the Tribunal indicates that although the applicant, when he presents his case in detail may succeed, at this juncture the applicant has not established a prima facie case of ultimate success;
That the applicant has not established a prima facie case of hardship;
That the Tribunal has no evidence on which to assess the likelihood of the applicant being a threat to public safety should there be a stay order. In a situation like this, concerning public safety, the Tribunal can only acknowledge that the decision to suspend the licence pursuant to Reg 268 was made by responsible officers of the respondent whose duties require them to carry out the requirements of the Act. The Tribunal is not of the opinion that the evidence supports a conclusion that the suspension was a punitive measure although it is clear from the submissions of Mr McKeown that there are other means available to the respondent to deal administratively with the matter and facilitate the investigation now in progress. It was Mr Farquharson's evidence that the respondent considered it appropriate in the circumstances to impose the Reg 268 measure.
DECISION
Taking all of the above matters into account, the Tribunal considers that it is not desirable to grant the request for a stay. The Tribunal refuses the request pursuant to s 41(2) of the AAT Act for an order staying the operation of the decision of the respondent to suspend the applicant's licence (019178) pursuant to Reg 268.
I certify that the 27 preceding paragraphs are a true copy of the reasons for the decision herein of Mr R D Fayle, Senior Member.
Signed: ..........(sgd V Wong)..................................
AssociateDate/s of Hearing 14 and 15 March 2002
Date of Decision 22 March 2002
Counsel for the Applicant Mr C McKeown
Counsel for the Respondent Mr C Stevenson
Solicitor for the Respondent Mr G Galic
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