Snell and Civil Aviation Safety Authority

[2010] AATA 984

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2010] AATA 984

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2009/3710; 2010/1499

GENERAL ADMINISTRATIVE DIVISION		)
Re		LINDSAY SNELL

Applicant

And CIVIL AVIATION SAFETY AUTHORITY

Respondent

DECISION

Tribunal Deputy President P E Hack SC

Date8 December 2010  

PlaceBrisbane

Decision

The Tribunal:

1. sets aside the decisions with respect to document 1 dated 18 November 2008, document 6 dated May 2009 and document 7 (undated) and substitutes decisions that access be granted to those documents;

2. varies the decision with respect to document 5 dated 21 January 2009 such that only paragraphs 1, 2 and 5 on page 5 of that document are exempt;

3. otherwise affirms the decisions under review;

4. specifies 5 January 2011 as the date upon which the decision will come into operation;

5. certifies that the proceedings have terminated in a manner favourable to the applicant.

......................[signed].....................

Deputy President

CATCHWORDS

FREEDOM OF INFORMATION – request for access – respondent claiming exemptions on release of documents – respondent’s claims affirmed, varied and set aside – proceedings terminated in manner favourable to applicant

Administrative Appeals Tribunal Act 1975 (Cth), s 43(5B)

Freedom of Information Act 1982 (Cth), ss 4, 36, 40(1)(d), 41

REASONS FOR DECISION

8 December 2010   Deputy President P E Hack SC    

Background

1. Mr Lindsay Snell is a very experienced fixed-wing and helicopter pilot. He is an “authorised testing officer” (ATO) for the respondent, the Civil Aviation Safety Authority. As an ATO he was a delegate of, but not an employee of, CASA. In June 2008 Mr Snell was engaged, in his capacity as an ATO, to conduct a Grade 1 helicopter instructor rating review required by another pilot, Mr Fergus Hanley. Mr Snell’s assessment of Mr Hanley was observed by Mr Russell Grundy, a CASA employee with the position of Flying Operations Inspector, Eastern Region.

2. Mr Snell was not impressed with Mr Hanley’s abilities. He assessed that Mr Hanley had failed the test. Mr Grundy had a similar view.

3. A further test was arranged for Mr Hanley, conducted later in June 2008 by Mr Graeme Gillies, another ATO, and observed by Mr Neil Forbes, CASA employee and a Flying Operations Inspector. Mr Hanley failed this test as well.

4. In July 2008 Mr Hanley wrote a letter to the responsible Minister complaining about the conduct of the two tests. That complaint was investigated, and reported on, by the Industry Complaints Commissioner (ICC), a position occupied at that time by Mr Michael Hart. Mr Hart subsequently sought the opinion of another ATO, Mr David Richards, on the way in which the testing of Mr Hanley had been undertaken.

5. In March 2009 Mr Snell sought access, pursuant to the Freedom of Information Act 1982 (the FOI Act), to documents concerning the test by him of Mr Hanley in June 2008 and, in particular, the report by Mr Hart, the ICC. Thirty nine pages of documents were identified by CASA. Some material was released to Mr Snell but the majority was subject to claims by CASA for exemptions under the FOI Act. The original decision of CASA of 18 June 2009 was affirmed on internal review on 24 July 2009. That decision is the subject matter of application 2009/3710 lodged in the Tribunal on 10 August 2009.

6. Then on 16 November 2009 Mr Snell requested access to documents that had come into existence after the first request. The ICC final report was identified as the only additional document coming within the scope of his request. On 25 November 2009 CASA decided that that report was exempt. That decision was varied on internal review on 29 January 2010 when it was decided to release the report to Mr Snell but with quite substantial deletions.

7. That decision is the subject matter of application 2010/1499 lodged on 13 April 2010.

8. Two further procedural matters need be noticed. The first is that Mr Hanley was given the opportunity to agree to the release of information to Mr Snell and the opportunity to participate in the proceedings but chose not to do either. The other matter to note is that, through inadvertence, unedited copies of two of the documents in issue were reproduced in the documents provided to the Tribunal pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (Cth).

   The documents

9. Twelve documents have been located and identified in a schedule which was made an exhibit in the proceedings[1]. The schedule, which was provided in accordance with the Tribunal’s Freedom of Information Practice Direction, sought to identify the documents, the extent of any claim for exemption[2] and the statutory basis for the exemption claimed. The Authority made some amendments to the schedule in the course of the hearing and, at my request, a typescript version was forwarded after the hearing. The substitute schedule, which I have had marked Exhibit 4A, varies slightly from the document tendered and that has created its own controversy. I will deal with that controversy in the course of my discussions about the documents.

   [1]    Exhibit 4.

   [2]    Somewhat wider claims for exemption were made in the respondent’s Statement of Facts and Contentions lodged on 21 July 2010. I have acted on the claims advanced in the Schedule, as amended.

10. Despite twelve documents having been identified in the schedule there are, in truth, only nine documents; documents 10, 11 and 12 are copies of documents 2, 3 and 4 respectively. I will deal with the documents in chronological order. Documents 1 to 4 are the subject matter of application 2009/3710, the balance are the subject matter of application 2010/1499.

11. Document 3 and document 11 are copies of the letter of complaint from Mr Hanley to the Minister for Infrastructure, Transport, Regional Development and Local Government dated 23 July 2008. Exemptions under ss 36 and 40(1)(d) of the FOI Act are claimed over the entirety of the document.

12. Document 2 and document 10 are copies of a letter dated 12 August 2008[3] to Mr Hanley from CASA’s Eastern Region Manager, Mr Peter John, explaining why Mr Hanley failed to meet the standard of competency required. In effect, exemption from release is claimed pursuant to s 41 of the FOI Act over those parts of the letter that do not deal with the testing of Mr Hanley undertaken by Mr Snell. A decision has been made to release to Mr Snell that part of the letter that deals with the test of Mr Hanley undertaken by him on 9 June 2008.

    [3]    The schedule describes it as “undated” however the date appears on the last page of the letter.

13. Document 4 (and document 12) is an email “chain” of messages between CASA officers in early September 2008. Exemption is claimed over the entirety of the document on the basis of ss 36 and 40(1)(d) of the FOI Act.

14. Document 1 is the interim report dated 18 November 2008 from the ICC of CASA to the then CEO of CASA Mr Bruce Byron. Objection was taken on behalf of Mr Snell to the miniscule alteration post hearing to the extent of the claim for exemption. The exemption claimed originally was described, in part, as “All but the final two paragraphs on page 2”. The amended schedule, forwarded after the hearing, now describes that part of the claim as “All but the heading and the final 2 paragraphs on page 2”. Both descriptions are clumsy; in reality the claim for exemption is for the whole of page 2 of the letter except for the last two paragraphs and the heading to those two paragraphs. However the change complained of provides for access to the heading on page 2. That was discussed during the hearing and there is no basis for any complaint by Mr Snell as no additional claim for exemption is made, quite the opposite. I will however formalise the matter by varying the decision to incorporate the concession made in relation to the heading.

15. In reality, exemption under ss 36 and 40(1)(d) of the FOI Act is claimed over the whole of the substance of the report except for that part of it which discusses the tests supervised by Mr Snell which are discussed in the final two paragraphs on page two of the report.

16. Document 5 is the report from Mr Richards to the ICC dated 21 January 2009. At the hearing CASA withdrew some claims for exemption with the result that a variation of the decision under review will be required, at least, to that extent. The position now is that exemptions pursuant to ss 36 and 40(1)(d) of the FOI Act are claimed over all the report except insofar as it deals with the tests administered by Mr Snell and the conclusions reached by Mr Richards about that testing.

17. Document 8 is a file note of a conversation between the ICC and Mr Hanley on 13 March 2009. The entire document is claimed to be exempt on the basis of ss 36 and 40(1)(d) of the FOI Act.

18. Document 9 is an email from the ICC to various CASA officers dated 6 April 2009. It is claimed to be exempt in its entirety by virtue of ss 36 and 40(1)(d) of the FOI Act.

19. Documents 6 and 7 need be considered together. The former is the final report of the ICC dated May 2009. The latter is an extract, in table form, of the recommendations made in the final report. It adds nothing to the final report. Both documents are claimed to be exempt of the basis of ss 36 and 40(1)(d) of the FOI Act.

20. There was an apparent change in the claims made in respect of document 6. In its original schedule CASA claimed on exemption over “Paragraphs 4.1 – 4.7 on page 6”. Now it claims an exemption over “All of page 6”. But the change is without substance. Paragraphs 4.1 to 4.7 occupy the entirety of page 6 except for a two word heading which introduces the paragraphs. The fact that CASA asserts a claim for exemption over the whole of page 6 is plain from the deletions made to it before it was provided in redacted form, to Mr Snell’s solicitors.

    The legislation

21. The FOI Act operates on the fundamental premise that every person has a legally enforceable right to obtain access to the documents of an agency such as CASA unless the documents are exempt[4]. And, so far as these proceedings are concerned, CASA has the task of establishing that its decision was justified[5].

    [4] See s 11(1), FOI Act.

    [5] See s 61(1), FOI Act.

22. The exemptions in issue here are those in ss 36, 40(1)(d) and 41 of the Act. Those sections read, so far as is relevant:

    “36  Internal working documents

    (1)  Subject to this section, a document is an exempt document if it is a document the disclosure of which under this Act:

    (a)  would disclose matter in the nature of, or relating to, opinion, advice or recommendation obtained, prepared or recorded, or consultation or deliberation that has taken place, in the course of, or for the purposes of, the deliberative processes involved in the functions of an agency or Minister or of the Government of the Commonwealth; and

    (b)  would be contrary to the public interest.

    (2)  In the case of a document of the kind referred to in subsection 9(1), the matter referred to in paragraph (1)(a) of this section does not include matter that is used or to be used for the purpose of the making of decisions or recommendations referred to in subsection 9(1).

    (5)  This section does not apply to a document by reason only of purely factual material contained in the document.

    (6)  This section does not apply to:

    (a)  reports (including reports concerning the results of studies, surveys or tests) of scientific or technical experts, whether employed within an agency or not, including reports expressing the opinions of such experts on scientific or technical matters;

    (b)  reports of a prescribed body or organization established within an agency; or

    (c)  the record of, or a formal statement of the reasons for, a final decision given in the exercise of a power or of an adjudicative function.

    (7)  Where a decision is made under Part III that an applicant is not entitled to access to a document by reason of the application of this section, the notice under section 26 shall state the ground of public interest on which the decision is based.

    40Documents concerning certain operations of agencies

    (1)  Subject to subsection (2), a document is an exempt document if its disclosure under this Act would, or could reasonably be expected to:

    …

    (d)  have a substantial adverse effect on the proper and efficient conduct of the operations of an agency; or

    …

    (2)This section does not apply to a document in respect of matter in the document the disclosure of which under this Act would, on balance, be in the public interest.

    41Documents affecting personal privacy

    (1)  A document is an exempt document if its disclosure under this Act would involve the unreasonable disclosure of personal information about any person (including a deceased person).

    (2)  Subject to subsection (3), the provisions of subsection (1) do not have effect in relation to a request by a person for access to a document by reason only of the inclusion in the document of matter relating to that person.

    (3)  Where:

    (a)  a request is made to an agency or Minister for access to a document of the agency, or an official document of the Minister, that contains information concerning the applicant, being information that was provided by a qualified person acting in his or her capacity as a qualified person; and

    (b)  it appears to the principal officer of the agency or to the Minister (as the case may be) that the disclosure of the information to the applicant might be detrimental to the applicant’s physical or mental health, or well‑being;

    the principal officer or Minister may, if access to the document would otherwise be given to the applicant, direct that access to the document, so far as it contains that information, is not to be given to the applicant but is to be given instead to a qualified person who:

    (c)  carries on the same occupation, of a kind mentioned in the definition of qualified person in subsection (8), as the first‑mentioned qualified person; and

    (d)  is to be nominated by the applicant.

    (4)  Subject to subsection (5), where:

    (a)  access to a document has been given to a person; and

    (b)  the document contains personal information of a medical or psychiatric nature, about the person that has been provided by, or has originated from, a qualified person acting in his or her capacity as a qualified person; and

    (c)  access was not given with the qualified person’s knowledge;

    the principal officer or Minister (as the case may be) must notify the qualified person that access to the document has been so given.

    (5)  Subsection (4) does not apply if it is not reasonably practicable to notify the qualified person.

    (6)  Without limiting the matters that may be considered in deciding whether it is not reasonably practicable to notify the qualified person, consideration is to be given to:

    (a)  the length of time since the information was provided by, or originated from, the qualified person; and

    (b)  the likelihood that the qualified person is still carrying on the same occupation; and

    (c)  the frequency with which, but for subsection (5), the principal officer or Minister would be required to make notifications under subsection (4); and

    (d)  the resources available to make such notifications.

    (7)  The powers and functions of the principal officer of an agency under this section may be exercised by an officer of the agency acting within his or her scope of authority in accordance with arrangements referred to in section 23.

    (8)  In this section:

    qualified person means a person who carries on, and is entitled to carry on, an occupation that involves the provision of care for the physical or mental health of people or for their well‑being, and, without limiting the generality of the foregoing, includes any of the following:

    (a)  a medical practitioner;

    (b)  a psychiatrist;

    (c)  a psychologist;

    (d)  a marriage guidance counsellor;

    (e)  a social worker.”

23. Finally, it is necessary to have regard to the meaning of “personal information”. It is defined, in s 4 of the FOI Act, as meaning:

    “information or an opinion (including information forming part of a database). whether true or not, and whether recorded in a material form or not, about an individual whose identity is apparent, or can reasonably be ascertained, from the information or opinion”.

    The evidence

24. I was provided with a statement of Mr Snell which sets out the background to the matter in some greater detail than was apparent from the s 37 documents. His evidence was uncontroversial and warrants no further comment.

25. In addition I had the benefit of a statement from Ms Elizabeth Hampton who has been employed by CASA as the ICC since June 2010. Prior to her present engagement Ms Hampton was employed in complaint handling sections of other Commonwealth agencies, including the Office of the Commonwealth Ombudsman, for the past 10 years. She has, then, considerable experience in dealing with complaints made about agencies and those employed or engaged by them.

26. Given the way in which CASA put its case it is not necessary to consider all of the evidence of Ms Hampton. Some of her evidence warrants remark. The office of ICC is not one recognised by statute however its function is to provide a mechanism for members of the public, and for those within the aviation industry, to register complaints about conduct of CASA employees and delegates and to provide confidence that those complaints will be dealt with fairly and efficiently. At the time in question in those proceedings reports by the ICC were made only to the CEO of CASA. They were not publicly accessible nor provided to other officers of CASA. It was a matter for the CEO to determine whether any recommendations made should be accepted or rejected.

27. Ms Hampton, with the benefit of her considerable experience, expresses the view that complainants generally have an expectation that complaints will be dealt with in a confidential manner. She makes reference to the Ombudsman’s, Better Practice Guide to Complaint Handling and the reference therein to a complainant’s “right to expect that their privacy will be respected and [the] complaint will be investigated in private”. I would, have been prepared to infer that of complainants generally however the settled view of the Commonwealth Ombudsman is entitled to great respect.

28. Necessarily, the object of the complaint will be entitled to be fairly informed of the subject matter of the complaint and have a full opportunity to respond to the matters of the complaint. The question that arises in the present case is whether the object of the complaint is entitled to access to the complaint itself. That question needs be addressed by reference to the legislation however so far as complaint handling generally is concerned the views of Ms Hampton and of the Ombudsman suggest that that is not necessary. I would not have thought that, generally, it would be necessary to provide the complaint itself to the person complained of to allow a full opportunity to respond.

29. Ms Hampton also refers to the relatively small size of the aviation industry and her experience of genuinely held views by some that the making of complaints may have adverse consequences for the complainant. She expresses the view that the release in full of material relating to complaints “creates a real risk that individuals in the aviation industry will be reluctant to bring forward their concerns”. That view was criticised by Mr Byrne, counsel for Mr Snell, on the basis that Ms Hampton “fails to provide any evidence” for that view. Ms Hampton’s views accord with common sense and human experience. They strike me as inherently likely. I have no reason to reject the evidence and every reason to accept it.

    Consideration

30. The logical starting point is the complaints made by Mr Hanley, that is, documents 3, 8 and 11. Sections 36 and 40(1)(d) of the FOI Act are relied upon. I propose to consider s 40(1)(d) first.

31. It is pertinent to first observe that CASA relies upon ATO’s to undertake a great deal of the testing necessary within the aviation sector. But an ATO, whilst a delegate of CASA, is not an employee and owes to CASA somewhat different obligations than those that might be owed by an employee. That, as it seems to me, is relevant in the present context because it is desirable that there be a system, and a system that is open and accountable, whereby complaints may be made about CASA’s delegates. Equally importantly, it is desirable that there be a system where complaints are investigated independently. The presence of such a system is an essential element of the proper and efficient conduct of CASA’s operations, as Ms Hampton explained in her evidence.

1. If, as I accept, there is a real risk that individuals with complaints may be deterred by the prospect that the full terms of their complaint might be made public, then there is a real risk that one of the mechanisms relied upon by CASA to ensure openness and accountability might be compromised. That consequence could reasonably be expected to have a substantial adverse effect on the proper and efficient conduct of CASA’s operations.

2. A consideration of the public interest requires no different conclusion. There is a public interest in CASA maintaining an open and accountable system of receiving and investigating complaints about its employees and delegates. It is contrary to the public interest that anything be done that might compromise that system. Mr Michael Byrne, counsel for Mr Snell, contended for a public interest in the complete openness of the complaint process. Moreover, he contended that it was in the public interest that any limitations in Mr Hanley’s capacities as a flight instructor be made public. I do not accept the first of these contentions for the reasons already discussed – an effective complaint system does not require disclosure of the entirety of the complaint. The second proceeds on a false premise. The letters of complaint do not articulate any limitations in Mr Hanley’s capacities; they complained about Mr Snell (and others).

3. I do not consider it to be in the public interest to disclose the contents of these documents.

4. I would then affirm the decisions to refuse access to documents 3, 8 and 11. I have not found it necessary to consider the claim made under s 36(1) of the FOI Act.

5. CASA relies upon s 41 of the FOI Act to exempt from release those parts of document 2 and document 10 that have not been released. The claim raises a simple issue – would disclosure of material setting out CASA’s views on why Mr Hanley failed to meet the standard of competency required of a Grade 1 helicopter pilot[6] involve the unreasonable disclosure of personal information about Mr Hanley.

   [6]    Using the description in the schedule of documents.

6. CASA says that all of the material is “personal information” and that disclosing information that Mr Snell was not privy to would be unreasonable. It is not unreasonable, CASA says, to disclose to Mr Snell information of which he was already aware i.e. the reasons he had for failing Mr Hanley’s test.

7. There is no doubt that the information contained in the letter is personal information; it is a mix of stated fact and opinion about Mr Hanley and his identity could reasonably be ascertained from the material in the letter.

8. Disclosure of the information over which exemption is claimed would be unreasonable in my view. Mr Hanley has had an opportunity to agree to the information being released and has chosen not to agree (as he was quite entitled to do). That refusal enables me to infer, as I do, that he would not wish to have the information disclosed. It would, in my view, be unreasonable to disclose the balance of the material in these documents. I will affirm the decisions so far as they relate to documents 2 and 10.

9. Document 4, the email chain, (and the copy in document 12) are claimed to be exempt on the basis of ss 36 and 40(1)(d) of the Act however there is a preliminary issue which is whether the document answers the description of the documents to which Mr Snell sought access. I do not think that it does.

10. Mr Snell’s request of 26 March 2009 sought access to “documentation/correspondence concerning … Mr Fergus Hanley (Helicopter Pilot) and Mr Michael Hart (the Independent Complaints Commissioner)”. But then Mr Snell added:

    “This request involves any reference to me – Mr Lindsay Snell and my company Austcopters Pty Ltd.”

    Mr Snell’s subsequent request of 13 November 2009 was for:

    “any documents that involve the Helicopter Flight Instructor Test conducted by me in 2008 and any other associated material produced by CASA and the ICC Mr Michael Hart.”

11. In each case the test conducted by Mr Snell is an element of the description however I cannot see how any part of the email chain satisfies that element.

12. But beyond that it is plain on the face of the documents that they form part of the deliberative process of CASA. They record what are, in effect, discussions between officers about steps that might, or should, be taken by CASA in the performance of its statutory functions. Because of the very nature of these discussions about possible courses of action that might be taken there is a public interest that the document not be released. There is a clear distinction to be drawn between the release of studies and considered opinions of the release of what are, in effect, the musings of officers about what might be done. The public interest tells against the release of the latter.  

13. These conclusions apply equally to document 9, the email from the ICC to various CASA officers. The document is plainly in the nature of a recommendation about action that might be taken. It is no different, in concept, to document 4.

14. In my view each of documents 4, 9 and 12 are exempt by reason of s 36 of the FOI Act and I would affirm those parts of the decisions.

15. Document 1, the interim report, document 6, the final report, and document 7, the table of recommendations in the final report may be considered together. Exemptions under ss 36 and 40(1)(d) of the FOI Act are claimed over each document.

16. In my view it is plain, from a reading of the reports, that the reports, whether interim or final, evidence the deliberative processes of CASA. The ICC had no power to give effect to any view reached following an investigation; the power was limited to making a recommendation which the CEO of CASA was free to accept or to reject either in whole or in part. Each of the documents satisfies paragraph (a) of s 36(1) of the FOI Act. It is then necessary to consider whether it would be contrary to the public interest to disclose the reports.

17. The evidence of Ms Hampton does not directly address the issue of the public interest. She does make some observations about the desirability of not inhibiting complainants from making complaints. So much may be accepted. And it may be accepted that it is desirable that agencies have a proper mechanism for accepting, and dealing with, complaints. The proper investigation of complaints is one way in which CASA can discharge its statutory functions. It is in the public interest that CASA maintain an open and accountable system of receiving and investigating complaints about its employees and delegates. And where the statute creates a prima facie entitlement to access it is, at least, not contrary to the public interest that the conclusions reached on the investigation of complaints be accessible, subject to any particular content of the documents. On my reading of the documents, there is nothing in any of them which would warrant the conclusion that it would be contrary to the public interest to disclose the documents.

18. I am then not satisfied that documents 1, 6 and 7 are exempt by virtue of s 36(1) of the FOI Act.

19. So far as s 40(1)(d) of the FOI Act is concerned there is nothing in the evidence of Ms Hampton that would suggest that the release of the reports could have any substantial adverse effect on the efficient conduct of the operations of CASA. Her evidence is limited to the view that the release of the interim report and the report “would inhibit the frankness and candour of persons communicating with the ICC”. I accept that release of a complaint, in its entirety, might have that effect however the reports contain only a brief summary of the nature of the complaint. I am not persuaded that release of the reports would have, or could reasonably be expected to have, a substantial adverse effect on the efficient conduct of the operations of CASA.

20. I am not then persuaded that an exemption under s 40(1)(d) is made out in relation to documents 1, 6 and 7. Given this conclusion I do not find it necessary to consider the operation of s 40(2) of the FOI Act.

21. It follows that I do not consider that documents 1, 6 and 7 are exempt. I would set aside CASA’s decision to refuse access to those documents.

22. There remains only document 5, Mr Richard’s review of the tests conducted on Mr Hanley during 2008. So much of the document as deals with the testing done by Mr Snell has been released. The balance is, in my view, exempt by operation of s 41 of the FOI Act, that is, disclosure of the balance would involve unreasonable disclosure of personal information about Mr Hanley. I reach that view, notwithstanding that CASA did not claim s 41 as a basis of exemption, for the same reasons that I conclude that the balance of document 2 was exempt. What is in issue in document 5 constitutes personal information about Mr Hanley. The very nature of the information makes it unreasonable to disclose it.

23. I would then uphold the claim for exemption without finding it necessary to consider the claims made for exemption under ss 36 and 40(1)(d) of the FOI Act.

24. In the result I would,

    (a) set aside the decisions with respect to document 1 dated 18 November 2008, document 6 dated May 2009 and document 7 (undated), and substitute a decision that access be granted to those documents;

    (b) vary the decision with respect to document 5 dated 21 January 2009 such that only paragraphs 1, 2 and 5 on page 5 of that document are exempt;

    (c) otherwise affirm the decisions under review.

25. To enable CASA to consider the question of an appeal I will, pursuant to s 43(5B) of the Administrative Appeals Tribunal Act 1975 (Cth), specify a date 28 days after the publication of these reasons as the date on which the decision will come into operation.

I certify that the 56 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President P E Hack SC

Signed:         ................................[signed]........................................
  Associate

Date of Hearing  5 October 2010
Date of Decision  8 December 2010
Counsel for the Applicant         Mr M Byrne
Solicitors for the Applicant        Van Zyl Lawyers
Counsel for the Respondent     Mr J Davidson
Solicitor for the Respondent     Civil Aviation Safety Authority