Snook and Civil Aviation Air Safety Authority
[2008] AATA 1139
•19 December 2008
Administrative Appeals Tribunal
INTERLOCUTORY DECISION AND REASONS FOR INTERLOCUTORY DECISION [2008] AATA 1139
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2008/2804
GENERAL ADMINISTRATIVE DIVISION ) Re PETER SNOOK Applicant
And
CIVIL AVIATION AIR SAFETY AUTHORITY
Respondent
INTERLOCUTORY DECISION
Tribunal Mr Egon Fice, Member Date19 December 2008
PlaceMelbourne
Decision The Tribunal, in accordance with s 41(4)(b) of the Administrative Appeals Tribunal Act 1975, extends the period of the stay granted on 25 September 2008 to 26 February 2009.
(sgd) Egon Fice
Member
REASONS FOR INTERLOCUTORY DECISION
19 December 2008 Mr Egon Fice 1. On 25 September 2008 I ordered that a decision made by the Civil Aviation Safety Authority (CASA) to suspend Mr Snook’s private pilot (Aeroplane) licence), his aircraft maintenance engineer’s licence and his certificate of approval (the first show cause decision) be stayed until 12 December 2008.
2. At the time of making my decision, CASA had served on Mr Snook a second show cause notice on 4 September 2008, requiring Mr Snook to show why his private pilot licence, aircraft maintenance engineer licence and certificate of approval should not be varied, suspended or cancelled. At the time of hearing Mr Snook’s application for a stay order on the first show cause decision, he had not had the opportunity to respond to the second show cause notice. The events which gave rise to CASA issuing the second show cause notice are unrelated to those events which gave rise to the first show cause notice. I decided that it was unfair to take into account the events described in the second show cause notice because Mr Snook had not had the opportunity to respond to it, and CASA had not made a decision about the variation, suspension or cancellation of the licences and certificate in question.
3. On 27 November 2008, CASA, having considered Mr Snook’s response to the second show cause notice, decided to:
(a)cancel Mr Snook’s aircraft maintenance engineer licence; and
(b)cancel Mr Snook’s certificate of approval (the second show cause decision).
4. On 1 December 2008 Mr Snook lodged with the Tribunal an application for review of CASA’s second show cause decision. Therefore, in accordance with s 31A(5) of the Civil Aviation Act 1988 (The Act), CASA’s second show cause decision is stayed until the end of the 90th day after CASA notified Mr Snook of it’s decision. Mr Snook’s evidence was that he received CASA’s second show cause decision on 28 November 2008. Accordingly, CASA’s second show cause decision remains stayed until 26 February 2009.
5. The purpose of my limiting the stay, granted in respect of the first show cause decision, to 12 December 2008 was so that I could consider the matters raised by the second show cause decision and determine whether the stay in respect of the first show cause notice should continue or whether it should be varied or revoked pursuant to s 41(4)(b) of the Administrative Appeals Tribunal Act 1975.
6. On the hearing of this application, the applicant urged me to extend the stay of the decision based on the first show cause notice to 26 February 2009 so that it expires on the same date as the statutory stay in respect of the decision on the second show cause notice. According to Mr Snook, if the stay were not extended to 26 February 2009, he would be in precisely the same position regarding the hardship he would suffer and he would face the real possibility of his aviation maintenance business being closed down. Mr Snook also submitted that there was no evidence which would warrant the Tribunal declining to extend the stay already granted.
7. On the other hand, CASA submitted that the stay granted on 25 September 2008 should not be extended to 26 February 2009. If the stay were not extended, the effect would be that Mr Snook’s private pilot licence, aircraft maintenance engineer’s licence and certificate of approval would be suspended in accordance with CASA’s first show cause decision. It would not affect CASA’s second show cause decision as that is subject to a statutory stay.
8. CASA also submitted that I should adopt the approach of treating the current application before me as an application for a stay of both show cause decisions. After considering all of the material which was now before me, I should then make a decision which would affect both the statutory stay (after its expiry) and the stay I granted on 25 September 2008. That, according to CASA, would alleviate a necessity for the parties to appear again on or before 26 February 2009, if I was of the view that a further stay should be granted in respect of both decisions.
9. While I am of the view that dealing with both show cause decisions would be a cost-saving measure, particularly if I were minded to extend the stay period for the first show cause decision and, following the expiry of the statutory stay period, the second show cause decision, until the date of hearing, Mr J Ribbands of counsel, who appeared on behalf of Mr Snook, argued that he had not had the opportunity to have a full conference with his client regarding both decisions. Mr Ribbands submitted that I should only deal with the stay I granted on 25 September 2008 on this hearing.
10. CASA also submitted that irrespective of the way in which I dealt with both of CASA’s decisions, if I were to only consider CASA’s first show cause decision, I should not, in any event, continue the stay in respect of the suspension of Mr Snook’s pilot licence. CASA argued that the suspension of his pilot licence would not cause Mr Snook hardship or be detrimental to him as far as the hearing of his substantive application was concerned. CASA submitted that Mr Snook’s pilot licence did not provide him with any income, nor was it essential or even necessary for the conduct of his business as a licensed aircraft maintenance engineer and certificate of approval holder.
SHOULD THE TRIBUNAL ADDRESS THE STAYS IN RESPECT OF BOTH OF CASA’S DECISIONS?
11. Although I was of the view that CASA’s submissions in respect of a stay regarding both of its decisions should be considered on this occasion, Mr Ribbands argued that I should not do so because he had not had the opportunity to consult fully with Mr Snook regarding both decisions.
12. While CASA’s request to deal with both stays on this occasion would certainly reduce the cost of both parties in this proceeding, it would only do so in the event that I agreed that the decisions on both show cause notices should be stayed until the hearing of this matter. If I were to decide that the stay on the first show cause notice decision should not be extended, there would be no purpose in dealing with the decision on the second show cause notice because, effectively, Mr Snook’s maintenance operations would cease as a consequence of a suspension of his aircraft maintenance engineer’s licence and his certificate of approval.
13. Ultimately, I decided that Mr Ribbands should have the opportunity to consult fully with Mr Snook regarding both show cause decisions before I deal with the second show cause decision. I have therefore decided to only consider whether I should extend the stay period for the first show cause decision.
SUSPENSION OF PILOT LICENCE
14. Mr J Rule, a principal lawyer with the Legal Branch of CASA, submitted that I should deal with the suspension of the pilot licence in the first show cause decision separately from the decision to suspend his aircraft maintenance engineer licence and his certificate of approval. This was on the ground that his private pilot licence was not essential or even necessary for Mr Snook to conduct his maintenance operations.
15. The first point to make about this submission is that it was not raised at the first stay hearing, and no further evidentiary material has been filed regarding Mr Snook’s pilot’s licence. The view I took on the first hearing, on the evidence then before me, was that Mr Snook not only used his private pilot’s licence to enable him to occasionally conduct a maintenance test flight after the completion of maintenance work, but that he also used his private pilot licence to fly to remote areas in Western Australia to conduct maintenance. That was Mr Snook’s evidence at that time and it has not altered since. Also, there was no further evidence put before me on this application to indicate that Mr Snook did not require his pilot’s licence for the purpose of flying to remote areas to conduct maintenance. Although the evidence did not disclose the extent to which he uses his private pilot licence in the conduct of his maintenance activities, as I indicated previously, I am of the view that to suspend that licence will cause Mr Snook some hardship and difficulty in continuing with his maintenance business. For that reason, I am not prepared to deal with Mr Snook’s pilot licence separately from his aircraft maintenance engineer’s licence and certificate of approval.
SHOULD THE STAY ORDER MADE ON 25 SEPTEMBER 2008 BE VARIED OR REVOKED?
16. As I indicated in my decision of 25 September 2008, the risk to the safety of air navigation should be the paramount consideration in this case. However, the only evidentiary material which I considered when I made that decision was the incident involving aircraft VH-YOG, where Mr Snook decided that an aircraft was safe to fly with a missing tail pipe which caused him to suffer severe smoke and fumes in the cockpit when doing so. That incident also raised questions about the way in which Mr Snook conducted his maintenance activities as he had fitted the muffler some three flying hours prior to that incident occurring. The position now is different, in the sense that there is material before me dealing with Mr Snook’s maintenance of a number of additional aircraft, all of which have caused CASA sufficient concern to cancel Mr Snook’s aircraft maintenance engineer’s licence as well as his certificate of approval. Mr Snook has now had the opportunity of addressing those matters as they were presented to him in the show cause notice. I therefore now have additional material before me regarding the possible effect of Mr Snook’s aircraft maintenance activities on the safety of air navigation.
17. While I accept CASA’s submission that the new material does, on its face, raise some serious questions about the way in which Mr Snook has conducted his maintenance operations, and that there appear to have been some breaches of the Civil Aviation Regulations 1988 (the CAR), there was no evidence before me that those alleged breaches, if established, might constitute or result in a serious and imminent risk to air safety. If that was the case, I have no doubt that CASA would have proceeded under s 30DB of the Act. It did not but instead chose to proceed under regulation 269(1)(c) and (d). By proceeding under that regulation, CASA would have been aware that if Mr Snook lodged an application with the Tribunal within five business days after being notified of CASA’s decision on the show cause notice, the decision would be subject to a 90-day statutory stay. Therefore, while I accept that there is some evidence which might suggest an increase in the risk to the safety of air navigation following the allegations made by CASA on the second show cause notice, it is not my view that the risk is sufficiently serious to warrant not extending the stay on the first show cause notice decision to 26 February 2009.
PROSPECTS OF SUCCESS
18. While I accept CASA’s submissions that the new material raised on the second show cause notice, and Mr Snook’s response to that show cause notice, disclosed some weaknesses in Mr Snook’s case, as I said in my decision of 25 September 2008, that does not necessarily mean that, even if CASA were successful in proving a number of subsequent breaches of the CAR or the Act, I should necessarily agree that the licences and certificate of approval should be either suspended or cancelled. Under regulation 269, that decision remains discretionary. It is only after a full hearing that I would be in a position to determine Mr Snook’s prospects of success. I am therefore not prepared, at this stage, to find that Mr Snook has no real prospects of succeeding on either of his applications.
SECURING THE EFFECTIVENESS OF THE HEARING AND DETERMINATION OF THE APPLICATION
19. The evidence regarding the effect of suspension or cancellation of Mr Snook’s licences and certificate of approval on his maintenance business have already been canvassed in some detail. Mr Snook’s evidence on this occasion is exactly as it was previously. If I was to refuse to extend the stay on the first show cause notice decision then, effectively, Mr Snook’s maintenance business would most likely collapse. That would of course render nugatory any final decision made by this Tribunal.
CONCLUSION
20. In this application to vary the decision I made on 25 September 2008 staying CASA’s decision on the first show cause notice until 12 December 2008, I had before me additional evidence of improper maintenance procedures as a result of Mr Snook conducting maintenance operations under his certificate of approval. Although those materials do raise questions which might impact on the safety of air navigation, and although the risk to the safety of air navigation may appear higher than first thought in light of that evidentiary material, in my opinion it is not sufficient to outweigh the detrimental effects of suspending Mr Snook’s licences and his certificate of approval. If I was not to grant an extension of the stay on the first show cause notice decision, the effectiveness of the hearing in this matter and determination of the application would be rendered nugatory. Although I accept it is a difficult balancing decision, particularly where the safety of air navigation is concerned, I am satisfied that to extend the stay period on the first show cause notice decision would not result in a substantial increase in the risk to the safety of air navigation.
21. Accordingly, in accordance with s 41(4)(b) of the AAT Act, I extend the period of the stay granted on 25 September 2008 to 26 February 2009.
I certify that the twenty-one [21] preceding paragraphs are a true copy of the reasons for the decision herein of
Mr Egon Fice, MemberSigned: Dianne Eva
ClerkDate of Hearing 12/12/2008
Date of Decision 19 December 2008
Counsel for the Applicant Mr J Ribbands
Solicitor for the Applicant Maitland Lawyers
Counsel for the Respondent Mr J RuleSolicitor for the Respondent Civil Aviation Safety Authority Legal
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