Snook v Civil Aviation Safety Authority
[2011] FCA 1300
•18 November 2011
FEDERAL COURT OF AUSTRALIA
Snook v Civil Aviation Safety Authority [2011] FCA 1300
Citation: Snook v Civil Aviation Safety Authority [2011] FCA 1300 Appeal from: Snook v Civil Aviation Safety Authority [2010] AATA 582 Parties: PETER JOHN SNOOK v CIVIL AVIATION SAFETY AUTHORITY File number: VID 755 of 2010 Judge: TRACEY J Date of judgment: 18 November 2011 Catchwords: ADMINISTRATIVE LAW – civil aviation - suspension and cancellation of licences and certificate – appeal on questions of law – whether irrelevant considerations taken into account or relevant considerations not taken into account – whether Tribunal failed to consider duties and responsibilities of licence- and certificate-holders under the Act with regard to irrelevant considerations – no reviewable error Legislation: Administrative Appeals Tribunal Act 1975 (Cth) ss 25, 31, 44
Civil Aviation Act 1988 (Cth) ss 3A, 8, 9, 98
Civil Aviation Regulations 1988 (Cth) reg 269
Judiciary Act 1903 (Cth) s 39BCases cited: Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 referred to
Australian Telecommunications Corporation v Lambroglou (1990) 12 AAR 515 applied
Birdseye v Australian Securities and Investments Commission (2003) 38 AAR 55 cited
Minister for Aboriginal Affairs v Peko-Wallsend Pty Ltd (1986) 162 CLR 24 cited, applied
TNT Skypack International (Aust) Pty Ltd v Federal Commissioner of Taxation (1988) 19 ATR 1067 citedDate of hearing: 10 December 2010 Place: Melbourne Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 60 Counsel for the Applicant: Mr J Ribbands Solicitor for the Applicant: Alan Rumsley Lawyers Counsel for the Respondent: Mr I Harvey Solicitor for the Respondent: Freehills
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION
VID 755 of 2010
ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL
BETWEEN: PETER JOHN SNOOK
ApplicantAND: CIVIL AVIATION SAFETY AUTHORITY
Respondent
JUDGE:
TRACEY J
DATE OF ORDER:
18 NOVEMBER 2011
WHERE MADE:
MELBOURNE
THE COURT ORDERS THAT:
1. The appeal be dismissed with costs.
Note:Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION
VID 755 of 2010
ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL
BETWEEN: PETER JOHN SNOOK
ApplicantAND: CIVIL AVIATION SAFETY AUTHORITY
Respondent
JUDGE:
TRACEY J
DATE:
18 NOVEMBER 2011
PLACE:
MELBOURNE
REASONS FOR JUDGMENT
All aspects of civil aviation in Australia are strictly regulated in the interests of safety. The body which carries principal responsibility, under the Civil Aviation Act 1988 (Cth) (“the Act”), for the maintenance of safety standards is the respondent, the Civil Aviation Safety Authority (“CASA”). CASA oversees a licensing system pursuant to the Act and the Civil Aviation Regulations 1988 (Cth) (“the Regulations”).
Mr Peter Snook held a number of licences under the Act and Regulations. These licenses included a private pilot licence and a maintenance engineer’s licence. He also held a certificate of approval which authorised him to carry out maintenance on particular classes of aircraft.
After investigating a number of incidents involving Mr Snook a delegate of CASA determined to suspend Mr Snook’s private pilot’s licence for a period of six months, subject to his successfully passing a flight test. Some months later a delegate also cancelled Mr Snook’s maintenance engineer licence and his certificate of approval.
Mr Snook appealed to the Administrative Appeals Tribunal (“the Tribunal”) against these decisions: see s 31(2) of the Act and s 25 of the Administrative Appeals Tribunal Act 1975 (Cth) (“the AAT Act”). It set aside the delegate’s decision to suspend Mr Snook’s private pilot licence and substituted a decision that that licence be cancelled. The Tribunal affirmed the delegate’s decisions to cancel Mr Snook’s maintenance engineer licence and certificate of approval.
Mr Snook purported to appeal against the Tribunal’s decisions to this Court pursuant to s 44 of the AAT Act.
THE BACKGROUND FACTS
The first matter which came to the attention of CASA related to the operation and maintenance of an aircraft registered as VH-YOG (“YOG”).
YOG took off from Bunbury airport on 15 January 2008. Shortly afterwards the pilot smelt and saw smoke in the cockpit. He managed to land the aircraft in a paddock. He examined the engine but could not find any fault. He left the aircraft in the paddock and arranged for a friend to organise recovery. On the following day Mr Snook examined the aircraft in the paddock and discovered that it had a missing tailpipe. He nonetheless considered the aircraft safe to fly and flew it back to Bunbury airport. The smoke in the cabin was attributed to a burning carpet. It had started to smoke because, in the absence of the tailpipe, hot air from the exhaust was coming into contact with the underside of the aircraft.
Mr Snook failed to enter the defect on a document known as a “maintenance release”. Had he done so the aircraft could not have been flown until the defect was rectified.
In his capacity as an aircraft maintenance engineer Mr Snook had conducted a routine 100 hourly inspection of YOG in December 2007. He detected cracks at the point where the tailpipe extended from the muffler. He removed the muffler for welding repairs. When it was returned Mr Snook reinstalled the muffler in a manner which did not comply with the requirements of the relevant illustrated parts catalogue. The faulty attachment of the muffler was found, by the Tribunal, to have contributed to the incident on 15 January 2008.
The Tribunal also found that Mr Snook, in his capacity as an aircraft maintenance engineer, had failed to comply with and contravened various regulations. These contraventions included Mr Snook working on an engine on which his licence did not authorise him to work, failure to carry out some inspections as required by the aircraft manufacturer’s service bulletins, failure to comply with air worthiness directives and the unlawful issue of maintenance releases.
THE LEGISLATION
The “main object” of the Act “is to establish a regulatory framework for maintaining, enhancing and promoting the safety of civil aviation, with particular emphasis on preventing aviation accidents and incidents”: see s 3A.
CASA is established under s 8 of the Act. Its functions are set out in s 9. One of these functions is the conducting of the safety regulation of civil air operations in Australia.
Section 9A(1) of the Act provides that “[i]n exercising its powers and performing its functions, CASA must regard the safety of air navigation as the most important consideration.”
Section 98 empowers the Governor-General to make regulations relating to a wide range of matters including the licensing of persons involved in the operating or maintenance of aircraft and the granting, issuing, cancellation, suspension or variation of such licences.
CASA’s power to cancel licences is to be found in reg 269 of the Regulations. Relevantly it provides that:
“(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)…;
(b)…;
(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.”
THE TRIBUNAL’S DECISION
In determining to cancel Mr Snook’s private pilot licence the Tribunal acted under paragraphs (c) and (d) of sub-reg 269(1). It first found that Mr Snook had “failed in his duty with respect to a number of matters affecting the safe navigation or operation of an aircraft.” These matters included Mr Snook’s failure to appreciate that YOG was un‑airworthy at the time he flew it back to Bunbury, Mr Snook’s ignorance of the requirements of some of the relevant Regulations and his failure to comply with the defect reporting provisions of the Regulations.
Specifically, the Tribunal held that:
“79. As a pilot conducting a daily inspection prior to flight, Mr Snook was required to check that the exhaust system was secure and free from cracks, as is set out in Section 1 of Part 1 of Schedule 5 of the [Regulations]. It is not an adequate response to state that the tailpipe was missing but otherwise the exhaust system was secure and free from cracks. Clearly, the exhaust system was not secure and cracking had occurred to such a degree that the tailpipe had fallen off. Although we accept Mr Snook identified this problem when conducting the daily inspection, his subsequent actions constituted a breach of his duty.
…
84. Although Mr Snook attempted to play down the seriousness of his decision to fly the aircraft out of the paddock, the fact that he experienced sufficient smoke in the cockpit to cause him to open the aircraft door in flight in order to exhaust the smoke, speaks for itself. There can be no question that Mr Snook, by taking off in an aircraft which was unserviceable, must have known that he would experience some smoke in the cockpit because Mr Coxall had done so on its previous flight and Mr Snook had not conducted any repairs on the aircraft in the interim.”
The Tribunal concluded (at [90]) that:
“…the breaches of duty displayed by Mr Snook were extremely serious and he was very fortunate that no one was injured or killed. In our opinion, breaches of that degree should attract the cancellation of his private pilot licence.”
The Tribunal also acted under sub-para (d). In determining whether or not Mr Snook was a fit and proper person to hold a licence it directed itself consistently with the reasons of Toohey and Gaudron JJ in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 380.
It expressed its reasons as follows:
“97. In our opinion, Mr Snook is not a fit and proper person to hold a private pilot licence. His decision to fly aircraft YOG from the paddock to Bunbury was not merely a poor decision. We were very concerned with Mr Snook's evidence about that event. While it is understandable that Mr Snook would attempt to cast that decision in the best light possible, his evidence regarding the reasons for making the decision to fly the aircraft are illogical.
98. That raises at least two concerns. The first is that Mr Snook may not have comprehended the seriousness of the mechanical defect which the aircraft suffered when the tailpipe became disconnected from the muffler and fell from the aircraft. The obvious signs of heat having been applied to the firewall of the aircraft and the explanation by Mr Coxall that he experienced such smoke in the cockpit that he performed an emergency forced landing would, logically, have led the average pilot to conclude there was a connection.
99. In this case, the pilot also held an AME licence. If, as Mr Snook put forward as an explanation, he did not make the connection and carried out a thorough inspection of the aircraft, then his inability to comprehend situations which may and probably will give rise to serious safety considerations clearly indicates he is not a fit and proper person to hold a licence. On the other hand, if in fact Mr Snook did make the connection between the missing tailpipe, the discoloured firewall and the smoke in the cockpit, then he clearly made a decision which was foolhardy and dangerous.
100. Mr Snook's lack of knowledge of the regulations was also disturbing. In particular, when asked about [Regulation 47] which deals with when a maintenance release ceases to be in force, it was apparent to us that Mr Snook was unaware of its provisions. He did not understand that it was his responsibility to ensure that the maintenance release was endorsed with the defect and that the aircraft should not have been flown until the defect was rectified. He identified the missing tailpipe. Mr Coxall did not. Rectification of the defect clearly required a tailpipe to be fitted to the muffler. As a pilot and a LAME, Mr Snook must have been aware of this. Furthermore, by suggesting that Mr Coxall was responsible for endorsing the maintenance release, Mr Snook appeared to have no understanding of his obligations under [Regulation] 50.
101. The final matter which leads us to the conclusion that Mr Snook is not a fit and proper person to hold a private pilot licence is the action he failed to take after landing at Bunbury. Mr Snook's reasons for not submitting a defect report until CASA insisted he do so was that he did not consider that the aircraft had suffered a major defect. That was Mr Snook's opinion because he did not consider that the missing tailpipe caused or could cause a fire in an aircraft. This is despite the fact that Mr Coxall experienced so much smoke in the cockpit that he had to make an emergency landing in the paddock.
102. The problem also occurred on Mr Snook's flight, when he experienced substantial smoke in the cockpit and he became seriously concerned for his life. Then, because there were no flames apparent in the cockpit, Mr Snook maintained that there was no fire but merely a melting of material on the cockpit side of the firewall. If Mr Snook sincerely believed that to be the case, his understanding of the purpose and function of regulations which are made to ensure the safety of air navigation, is seriously flawed.”
The principal basis for the Tribunal’s decision to cancel Mr Snook’s maintenance engineer licence and his certificate of approval was that he had failed in his duties in these capacities. The Tribunal said that:
“440. Having considered all of the evidentiary material dealing with Mr Snook’s AME licence and his CoA, we find that [Regulation] 269(1)(c) is enlivened. The only remaining question is whether Mr Snook’s conduct was such that it warrants cancellation of his AME licence and CoA. We are of the opinion that it does. Mr Snook’s conduct of maintenance and his understanding of the regulatory requirements are seriously substandard.
441. Furthermore, having observed Mr Snook give evidence for several days, it is clear to us that he is unlikely to accept the errors and failings we have described above. His dismissive attitude and the arrogance disclosed by his apparent belief that 40 years experience as an aircraft maintenance engineer entitles him to disregard the proper means by which maintenance should be conducted is deeply disturbing. While we fully appreciate what the consequences of this decision will be on Mr Snook, we cannot elevate our concern above the concern we have for the safety of air navigation. Mr Snook’s conduct as an LAME and holder of a CoA clearly has the potential to put lives at risk. It is our duty to ensure that does not happen.”
The Tribunal also considered “for the sake of completeness” whether Mr Snook was a fit and proper person to hold a maintenance engineer licence or a certificate of approval and concluded that he was not. It explained its reasons for so concluding as follows:
“457. In our opinion, Mr Snook does not seem to have any insight into his actions and their likely consequences. His history indicates that, irrespective of anything which is said to him about the maintenance of aircraft, if he holds a contrary view, he will not be persuaded. The fact that his views are frequently demonstrated to be erroneous appears to make no difference at all. In our opinion, these traits are unacceptable in a person who bears the responsibility for the safety of others. Accordingly, we find that Mr Snook is not a fit and proper person to hold and (sic) AME licence or a CoA.”
THE APPEAL TO THIS COURT
Mr Snook’s notice of appeal to this Court was amended on a number of occasions. In its final form it contained four “questions of law” and three grounds.
The first question of law was said to be:
“(a)Whether in purporting to consider whether the applicant had failed in his duty with respect to any matter affecting the safe navigation or operation of an aircraft as required by section 269(1)(c) of the Civil Aviation Regulations1988 (Cth) the Tribunal erred in that it:
(i) took into account irrelevant considerations; and/or
(ii) failed to take into account relevant considerations
so that the decision to cancel the Applicant’s Private Pilot Licence … was manifestly unreasonable.”
The second ground was in the same terms save that it dealt with the decision under reg 269(1)(d).
Questions (c) and (d) were similarly worded and dealt, respectively, with the Tribunal’s decisions under Regulation 269(1)(c) and (d) to cancel Mr Snook’s aircraft maintenance engineer’s licence.
The three grounds on which Mr Snook relied were:
“(a)The Tribunal erred when, in deciding that the applicant was not a fit and proper person to be the holder of a private pilot’s license, it took into account irrelevant considerations namely the knowledge and skill possessed by the applicant in his capacity as a Licensed Aircraft Maintenance Engineer so as to place a higher standard upon him in his capacity as a pilot.
(b)The Tribunal erred when, in deciding that the applicant was not a fit and proper person to be the holder of an Aircraft Maintenance Engineers license [sic], it failed to take into account relevant considerations, namely a requirement for the applicant to undertake work as an Aircraft Maintenance Engineer under the supervision of a Certificate of Approval holder.
(c)The Tribunal erred when, in deciding that the applicant was not a fit and proper person to be the holder of an Aircraft Maintenance Engineer’s license [sic], it failed to take into account relevant considerations, namely a requirement for the applicant to undertake work as an Aircraft Maintenance Engineer under the supervision of a Certificate of Approval holder and/or that the Certificate of Approval holder is responsible for ensuring the legibility and/or accuracy of records in respect of maintenance carried out by that Aircraft Maintenance Engineer.”
The particulars sub-joined to each of the three grounds read:
“The applicant contends that this error has the effect of imposing upon him a higher standard than that which is legally required for him to have the responsibilities and exercise and perform the functions and duties of a holder of such a licence.”
QUESTIONS OF LAW?
Each of the purported questions of law suffer from the same vice. It was identified by Ryan J in Australian Telecommunications Corporation v Lambroglou (1990) 12 AAR 515 at 527 where his Honour said that:
“… it simply begs the question of law to commence it with the words ‘Whether the Tribunal erred in law.’ If the question, properly analysed, is not a question of law no amount of formulary like ‘erred in law’ or ‘was open as a matter of law’ can make it into a question of law.”
This is no mere technical objection. Section 44(1) of the AAT Act provides that:
“A party to a proceeding before the Tribunal may appeal to the Federal Court of Australia, on a question of law, from any decision of the Tribunal in that proceeding.”
In TNT Skypack International (Aust) Pty Ltd v Federal Commissioner of Taxation (1988) 19 ATR 1067 at 1070, Gummow J, when a member of this Court said that:
“Section 44 of the AAT Act is expressed in narrower terms than the old s 196 of the Tax Act. This provided for appeals from the Board of Review which ‘involved’ a question of law. The result was that if some question of law was involved, the whole of the decision of the Board was open to review, not merely the question of law … This no longer will be the case with appeals brought to this court under s 44 of the AAT Act. The existence of a question of law is now not merely a qualifying condition to ground the appeal, but also the subject matter of the appeal itself.” (Emphasis added)
Subsequently a Full Court of this Court in Birdseye v Australian Securities and Investments Commission (2003) 38 AAR 55 at 60 held that the question of law contemplated by s 44(1) of the AAT Act must be what was described as a “pure question of law” in order to found the jurisdiction of the Court under s 44.
In appropriate cases the Court has been prepared to frame questions of law which might found its jurisdiction and be answered in a way that would reveal any error affecting the decision of the Tribunal: see, for example, Birdseye at 61.
I do not consider that it is necessary to attempt to reformulate the questions of law posed in this case in order to regularise the proceeding. The allegations that the decision maker took into account irrelevant considerations and/or failed to take into account relevant considerations are both grounds which, if made out, would warrant the intervention of the Court in judicial review proceedings brought under s 39B of the Judiciary Act 1903 (Cth). I am prepared to treat Mr Snook’s appeal as if it were an application for judicial review.
CONSIDERATION
The framing of the questions of law reflects the observations of Mason J in Minister for Aboriginal Affairs v Peko-Wallsend Pty Ltd (1986) 162 CLR 24 at 41 where his Honour said that:
“I say ‘generally’ because both principle and authority indicate that in some circumstances a court may set aside an administrative decision which has failed to give adequate weight to a relevant factor of great importance, or has given excessive weight to a relevant factor of no great importance. The preferred ground on which this is done, however, is not the failure to take into account relevant considerations or the taking into account of irrelevant considerations, but that the decision is ‘manifestly unreasonable’”.
It is to be borne in mind that the “factors” to which his Honour was referring were factors which a decision-maker is bound to take into account in making the particular decision (at 39). Conversely the ground of having regard to irrelevant considerations will only be made out if the Tribunal has regard to a factor which it is bound not to take into account (at 40). Moreover, in either case, it is necessary for an applicant to establish that the factor which was or was not taken into account was one which materially affected the impugned decision (at 40). The particulars subjoined to each of the grounds are framed with this requirement in mind.
Central to Mr Snook’s argument is what he describes as “a hierarchy of responsibility” established by the Regulations. Under the Regulations ultimate responsibility for maintenance carried out on aircraft falls on a person who holds a certificate of approval covering the maintenance. Such a certificate is issued pursuant to reg 30. An aircraft maintenance engineer who does not also hold a certificate of approval may only undertake maintenance work on an aircraft if he or she also “is employed by, or working under an arrangement with, a person” who holds such a certificate: see reg 42ZC(4). It was, therefore, to be implied that an aircraft maintenance engineer’s licence ranked lower than a certificate of approval in the regulatory scheme. Although not expressly stated in argument, Mr Snook’s contentions proceeded on the basis that a pilot’s licence fell at or below the level of an aircraft maintenance engineer’s licence in what was said to be a hierarchical structure.
Mr Snook submitted that the Tribunal’s reasons disclosed that all of the shortcomings on which it relied (save, perhaps, his flying of YOG) had been manifested in his capacity as the holder of a certificate of approval. In applying reg 269 to him as a pilot and aircraft maintenance engineer, it had held him to “a higher standard than that required of him in those capacities”.
The licensing scheme provided for in the Regulations deals with a wide range of activities in the civil aviation industry. These activities require different skills and different qualifications. Some are technically more complex than others. When the licensing scheme is examined as a whole there is no hierarchy of licences to be found.
I do, however, accept that a person holding a certificate of approval relating to the maintenance of aircraft carries a heavier degree of responsibility than does an aircraft maintenance engineer who does not also hold a relevant certificate of approval. So much is implicit in the requirements of reg 42ZC(4). There is, however, no similar linkage between the requirements that attach to a certificate of approval and pilots’ licences.
In exercising the power conferred by reg 269(1)(c), the decision maker’s attention is directed to the particular duties, imposed on the licence or certificate holder, by the Regulations. If the failure in satisfying these duties has implications for the safe navigation or operation of an aircraft, the licence or certificate may be suspended or cancelled.
Under reg 269(1)(d) the decision maker must identify the responsibilities, functions and duties which attach to a particular licence or certificate and then determine whether the holder is or is not a fit and proper person to be entrusted with the relevant responsibilities, functions and duties.
In exercising these powers, the decision maker would err if he or she were to hold a licence or certificate holder to account for dereliction of a duty which did not fall on the holder of such a licence or certificate. The necessary foundation for the exercise of the power would be lacking. It may also be said that, in purporting to exercise the power in this way, the decision maker would be taking into account an irrelevant consideration.
It is, therefore, necessary to examine the Tribunal’s reasons with a view to determining whether or not, in each case, it cancelled Mr Snook’s licences and certificate by reference to any duties or responsibilities which did not attach to the relevant licence or certificate. As I understand Mr Snook’s argument, it was that the Tribunal’s decisions in relation to his pilot’s licence and aircraft maintenance engineer’s licence were flawed because they were made, having regard to his duties and responsibilities as the holder of a certificate of authority and not the duties and responsibilities which were imposed upon him as a licence holder. It is in this sense that he claimed to have been held to a “higher standard” than was permissible under reg 269(1).
The Pilot’s Licence
The first illustration given by Mr Snook of him being held to an impermissibly higher standard concerned the Tribunal’s application of reg 269(1)(c) to his pilot’s licence. This error was said to be apparent from the Tribunal’s reasons at para [79] which are set out above at [17].
Mr Snook said that he had been called out to the paddock in which the forced landing had occurred in his capacity as an engineer not as a pilot. He inspected the aircraft as an engineer. He decided that it could be flown as an engineer not as a pilot. The owner had asked him to fly the plane and he did.
These arguments must be rejected. Mr Snook may well have been requested to attend the emergency landing site and to examine YOG in his capacity as an airline maintenance engineer. Once he had decided that the aircraft could and should be flown back to Bunbury, he was required to perform duties which were imposed on him by his pilot’s licence. As the opening words of paragraph [79] make clear the Tribunal assessed his conduct having regard to the duties which fell on the holder of that licence. In that capacity he was required to undertake a pre-flight inspection. He had done so. It had revealed that the aircraft was suffering from a defect which rendered it unsafe to fly. This gave rise to an obligation which fell on Mr Snook as a “flight crew member” under reg 50(2) to endorse the maintenance release document of YOG because it had suffered major damage. He did not do so. Such an endorsement would have meant that the aircraft could not be flown until such time as the necessary repairs had been undertaken. In these circumstances the holder of a pilot’s licence was not permitted to fly YOG. Mr Snook chose to do so. He was, as a result of these departures, found to have breached his duties as a pilot.
Further illustrations were drawn from the Tribunal’s reasons relating to Mr Snook’s fitness to hold a pilot’s licence. Specific attention was directed to paragraph [99] of the Tribunal’s reasons. At the commencement of this paragraph the Tribunal noted that Mr Snook also held an aircraft maintenance engineer’s licence.
This paragraph must, however, be read in context (see above at [20]). The context related to Mr Snook’s observations of the missing tailpipe and the application of heat to the firewall of the aircraft. The Tribunal was concerned that even an “average pilot” would have made the connection between these observations and the presence of smoke in the cabin which had caused the previous pilot to make the emergency landing. Either Mr Snook had not made the connection or he had done so but had determined, nonetheless, to fly the aircraft. In either event his fitness to hold both licences was called into question: see paragraph [100].
In my view, a fair reading of the Tribunal’s reasons makes it clear that Mr Snook’s pilot’s licence was cancelled by the Tribunal because of his failure to comply with his obligations, under the Regulations, in that capacity and not because he was held to any “higher standard” which attached to some other licence or certificate.
The aircraft maintenance engineer licence and the certificate of approval
At para [104] of its reasons the Tribunal embarked on a lengthy analysis of Mr Snook’s conduct under the heading “Concerns Regarding Mr Snook’s Aircraft Maintenance Engineer Licence and CoA.” This section of the reasons continued until para [388]. In it the Tribunal dealt with each of the deficiencies which CASA alleged demonstrated that Mr Snook had contravened or failed to comply with the requirements of the legislation in his capacity of a holder of a certificate of approval and an aircraft maintenance engineer. The Tribunal also set out the evidence which had been led in respect of each of these complaints and referred, where necessary, to the legislation.
Counsel for Mr Snook sought to rely on a number of passages in this section of the Tribunal’s reasons to support his contention that Mr Snook’s shortcomings as an aircraft maintenance engineer had been assessed at the highest standard which, he said, was applicable to the holder of a certificate of approval.
As the heading of this section made clear, the Tribunal was collecting the evidence of Mr Snook’s deficiencies in both capacities in the same part of its reasons. There is nothing in this section of the Tribunal’s reasons which could, therefore, support an error of the kind alleged.
At paragraph [389] the Tribunal embarked on its consideration of whether actions should be taken against Mr Snook under reg 269(1)(c) in respect of his certificate of approval and his aircraft maintenance engineer licence. In doing so it made a clear distinction between Mr Snook’s responsibilities as the holder of a certificate and an aircraft maintenance licence: see, for example, paragraphs [393]-[394] (dealing with the certificate) and [398]-[400] (relating to his aircraft maintenance licence). In some instances (see, for example at [410] and [413]) the Tribunal found or considered submissions that the same conduct justified the cancellation of both the certificate and the licence. Elsewhere (see, for example [435]) the Tribunal found that the conduct impinged only on Mr Snook’s entitlement to hold a certificate.
Although it was not strictly necessary for it to do so, having determined to cancel Mr Snook’s certificate and licence under reg 269(1)(c), it nonetheless considered that the same action was warranted pursuant to reg 269(1)(d).
The Tribunal accepted a submission by CASA that the holders of certificates and licences had an obligation to “demonstrate a willingness and ability to comply with all statutory requirements relating to the maintenance of aircraft.” It was not acceptable for a person who held either document “to indicate a willingness to comply, while demonstrating an inability to comply due to incompetence or any other reasons.”
Having recounted numerous incidents in which Mr Snook had failed to comply with CASA directives and had placed obstacles in the path of CASA investigators, the Tribunal concluded (at [457], extracted above at [22]) that Mr Snook’s lack of insight and intolerance of conflicting views relating to the requirements of the Regulations rendered him a person who was not a fit and proper holder of either an aircraft maintenance engineer’s licence or a certificate of approval.
It is clear, in my opinion, that, throughout its consideration of the application of reg 269(1)(c) and (d) to Mr Snook’s aircraft maintenance engineer’s licence and his certificate of approval, the Tribunal ensured that he was only held accountable for derelictions of duty and failures of responsibility which were imposed, discretely, by the Regulations, on his licence and certificate.
Given that the requirements, imposed on the holders of both licences and certificates under the Regulations, were imposed to further the objects of the Act, it is hardly surprising that the same conduct which jeopardised or had the potential to jeopardise air safety might, in some instances, fall for consideration when Mr Snook’s suitability to hold both his licence and certificate were being assessed under regs 269(1)(c) and (d).
The Tribunal’s reasons disclose no reviewable error.
DISPOSITION
Mr Snook’s appeal should be dismissed with costs.
I certify that the preceding sixty (60) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Tracey. Associate:
Dated: 18 November 2011
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