Sydney Harbour Seaplanes Pty Limited and Civil Aviation Safety Authority
[2001] AATA 106
•8 February 2001
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2001] AATA 106
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2000/1697
GENERAL ADMINISTRATIVE DIVISION ) Re SYDNEY HARBOUR SEAPLANES PTY LIMITED Applicant
And
CIVIL AVIATION SAFETY AUTHORITY
Respondent
DECISION
Tribunal Dr D. Chappell, Deputy President Date8 February 2001
PlaceSydney
Decision The decision under review is affirmed. (sgd. Dr D. Chappell)
..............................................
Deputy President
DECISION (CORRIGENDUM)
Before : Dr D. Chappell, Deputy President
Date: 14 February 2001
Place: Sydney
The Tribunal published a decision and reasons for decision in this matter dated 8 February 2001;
It has come to the Tribunal’s attention that there was an error in paragraph 3 and the stamp of that decision.
The Tribunal desires to amend the decision pursuant to section 43AA of the Act and provides as follows:
· The first sentence of Paragraph 3 should read:
“Mr Ian Harvey, of counsel, instructed by Mr Wayne Arthur, legal counsel for the respondent at the hearing.”
· The final line of the stamp at the end of the decision should read:
“Legal Counsel for the Respondent Mr Wayne Arthur”
(signed)
.........................................
Dr D. Chappell
Deputy President
CATCHWORDS
CIVIL AVIATION – Refusal to renew Air Operator’s Certificate (AOC) – alleged breaches of Civil Aviation Act 1988 (the Act), Regulations (CARs) and Orders (CAOs) – earlier Show Cause Notice - original application for passenger (RPT) and charter operations – concession applicant could not meet RPT requirements – scope of review – evidence of incidents involving air operations – evidence of incidents concerning maintenance control and procedures – findings regarding breaches of CARs and CAOs – findings regarding deficiencies in applicant’s operations – Tribunal not satisfied about certain matters in s28(1)(b) of Act – decision under review affirmed
Administrative Appeals Tribunal Act 1975 - s37
Civil Aviation Act 1988 – ss9, 9A, 20AA, 27, 28, 28BA, 28BE, 28BFAustralian Broadcasting Tribunal v Bond & Ors (1990) 70 CLR 321
CASA v Coburn (1997) 24 AAR 389 at (397)
Re Dahlia Mining Co.Ltd. and North West Iron Co.Ltd. trading as Savage River Mines And: Collector of Customs No.G339 of 1999 FED No.833 Administrative LawREASONS FOR DECISION
8 February 2001 Dr D. Chappell, Deputy President BACKGROUND
Application
1. Sydney Harbour Seaplanes Pty Limited (SHS: the applicant) seeks review of a decision of a delegate of the Civil Aviation Safety Authority (CASA: the respondent), made pursuant to s28 of the Civil Aviation Act 1988 (the Act), not to issue an Air Operator’s Certificate (AOC) to the applicant. Section 31 of the Act grants jurisdiction to the Tribunal to conduct such a review.
2. Mr Timothy Somerville, solicitor, represented the applicant at the hearing. Mr Robert Edward Britten, the Chief Pilot, general manager and a director of the applicant gave personal testimony to the Tribunal.
3. Mr Ian Harvey, of counsel, instructed by Mr Garth Cartledge, legal counsel for the respondent, represented the respondent at the hearing. Mr Paul Simpson, an air worthiness inspector for the respondent, gave personal testimony to the Tribunal on behalf of the respondent.
4. The Tribunal had before it documents and supplementary documents filed for the purposes of s37 of the Administrative Appeals Tribunal Act 1975 (T and S documents). The following exhibits were also received into evidence on behalf of the applicant and the respondent:
Exhibit No.
Description Date
S1 Supplementary document (Replacement for T43) Revised transcript of conference 13 October 2000 A1 Affidavit of Robert Britten 17/11/2000 A2 Affidavit of I. Lambert 17/11/2000 A3 Affidavit of R. Hoy 4/12/2000 A4 Affidavit of Robert Britten dated 02 January 2001 A5 Note on Sydney Harbour Seaplanes letterhead from R. Britten with attachment 26/10/1998 A6 Sydney Harbour Seaplanes Brochure R1 Statement of Bruce Graham 1/12/2000 R2 Statement of Bruce Graham 27/11/2000 R3 Publication – A Pilot’s Guide to Aircraft Maintenance February 1997 R4 Letter from Paul Simpson to Sydney Harbour Seaplanes 19/8/1999 R5 Aircraft Survey Report ASSP 604, #76198 R6 Statement of Paul Simpson 27/11/2000 R7 Letter to Robert Britten from Paul Simpson 14/10/1999 R8 Civil Aviation Regulations, Schedule 9, Maintenance Control Manual & Maintenance Controller R9 Statement of Eric Demarco 12/1/2001 R10 Chief Pilot Guide Expedited Hearing
5. The delegate’s decision to refuse the issue of an AOC to the applicant was made on 31 October 2000 (T52). On the same day the applicant lodged an application for a review of that decision with the Tribunal (T1). In a letter dated 6 November 2000 the applicant’s legal representative requested that the Tribunal list the matter for an urgent hearing. In support of that request it was noted that:
These proceedings relate to the refusal to renew our client’s flying licence. This has had severe repercussions on the business. At present there are 15 full time employees, many of whom will have to be stood down within the next month if this matter is not resolved.
Our client has a regular run to Newcastle of eight flights per day, five days a week. The refusal of renewal of our client’s licence has meant that around 200 passengers per week have had to find alternate transport to Newcastle. There is further charter work that also carries approximately 200 passengers per week. These passengers also have had to find alternate transport.
Our client estimates that for every month that they are grounded they are losing gross revenue of $180,000.00. Sydney Harbour Seaplanes also has substantial overhead regardless of whether they are flying or not.
The refusal to renew the licence for Sydney Harbour Seaplanes is greatly affecting the goodwill of the business. With every week that Sydney Harbour Seaplanes is not in the air goodwill is further being eroded.
(T: 6)
6. Responding to this request the matter was listed for hearing before Block DP in early December. However, at this hearing the parties indicated that they would like to have further time to conduct discussions that might lead to a resolution of the issues in dispute. The Tribunal granted this request. However, these discussions did not produce a desired outcome and, accordingly, the matter was re-listed for an expedited hearing in early January 2001. That hearing was to have been conducted by McMahon DP but due to unanticipated circumstances he was unable to deal with the matter.
7. The hearing was originally listed for only two days and the parties agreed between themselves that they would restrict the number of witnesses called to give personal testimony, relying principally upon the documentary evidence before the Tribunal. However, the time set aside proved to be quite insufficient and further hearing days were therefore arranged at short notice in order to complete the taking of evidence and the presentation of submissions. The Tribunal indicated at the outset of the hearing that it would seek to provide a rapid decision to the parties despite other competing and pressing obligations. In fulfilment of that promise the present extempore decision is being handed down today even though the Tribunal would under normal circumstances have wished to have further time to give fuller consideration to the important issues remaining in contention between the parties. The Tribunal’s task has not been made easier by the volume and technical complexity of much of the evidence presented. The limitations placed upon the personal testimony provided on behalf of both parties also left a number of issues either insufficiently or inadequately explored. The Tribunal was also not assisted by the frequently highly adversarial approach taken by the parties which led, among other things, to a failure even to agree upon an accepted chronology of events which prompted the ultimate refusal of the AOC by the respondent’s delegate (see transcript 4 January 2001: 40-41).
Circumstances Leading to AOC Refusal
8. Given the lack of an agreed chronology of events the Tribunal has been obliged to undertake its own review of the evidence to establish the circumstances which did lead to the refusal of an AOC to the applicant on 31 October 2000. The following description is by no means exhaustive but is intended to highlight and place in some context the factors which led eventually to the grounding of the applicant’s air operations.
9. The applicant’s business was established in August 1993. Since that time the Chief Pilot, general manager and one of the directors of the applicant company has been Mr Britten (see in general transcript 4 January 2001: 41-52). The applicant currently has four operating aircraft, all of which are De Havilland Beaver floatplanes and each of which is able to accommodate seven passengers. Prior to the cessation of its flying operations on 31 October 2000, SHS conducted both regular passenger transport (RPT) services and charter air services. The RPT service operated between Rose Bay in Sydney Harbour and Newcastle Harbour and from Rose Bay to the Anchorage Resort at Corlette on Port Stephens. The RPT services involved four return trips per day to and from Newcastle and one return flight per day to and from Corlette, Monday to Friday inclusive. In addition, the applicant conducted charter services involving carriage of between 200-300 passengers per week. The average daily revenues of the applicant were between $4,000-6,000. Fifteen full-time staff were involved in the applicant’s operations (see A6: T1).
10. Until March 1999 the applicant’s business appears to have been conducted without any significant regulatory interventions by the respondent. However, on either 31 March 1999, or possibly on 31 May 1999, the respondent issued a Show Cause Notice in accordance with s28BA(3) of the Act that it was considering suspending or cancelling the applicant’s AOC on the basis of certain stated facts and circumstances The uncertainty about the precise date of issue of this notice is based on references in a number of places in the s37 documents to 31 March 1999 (see for example T47: paragraphs 16 and 21) while the notice contained in the s37 documents is dated 31 May 1999 (T3: 14). Since the facts and circumstances stated in this notice have a direct relation to a subsequent Show Cause Notice issued by the respondent immediately prior to the cancellation of the AOC, it is necessary to set them out in detail:
The facts and circumstances are as follows:”
1.Sydney Harbour Seaplanes Pty Ltd is now, and at all times mentioned in this notice was, the holder of Air Operator’s Certificate (AOC) number BK 519487-06 authorising regular public transport, charter and aerial work (other than flying training) operations.
2.An audit conducted on 14 July 1998 revealed that as at that date three pilots namely, Robert Britten (licence ARN 137087), Bram Vince (licence ARN 032161) and Ryan Morgan (licence ARN 417487), had not completed dangerous goods training within the previous two years. Civil Aviation Regulation (1988) 262S (1) states that a person who is a flight crew member is required to undertake a training course in dangerous goods at intervals of not more than two years. (NCN 108031 refers)
3.An audit conducted on 14 July 1998 revealed that as at that date flight and duty time records were not being kept for two pilots employed by Sydney Harbour Seaplanes Pty Ltd, namely pilots Robert Britten (licence ARN 137087) and Bram Vince (licence ARN 032161).
Civil Aviation Order 82.3, Appendix 1, paragraph 2.5 (b) states that a system must be maintained to record flight crew duty and flight times to ensure compliance with duty and flight time limitations in accordance with Part 48 of the Orders. (NCN 108032 refers)
4.An audit conducted on 14 July 1998 revealed that as at that date Company procedures for obtaining NOTAM’s did not include the Brisbane and Melbourne Flight Information Region NOTAM’s. Civil Aviation Regulation (1988) 215(2) states an operations manual shall contain such information, procedures and instructions with respect to the flight operations of all types of aircraft operated by the operator as are necessary to ensure the safe conduct of the flight operations. (NCN 108033 refers)
5.On 15 July 1998 a charter flight between Newcastle and Sydney with Santor Antal (licence ARN 522271) as pilot in command was conducted using DHC-2 type floatplane without an adequate briefing being given to the passengers in that there was No briefing on smoking, use of seat belts, use of life jackets or passenger occupation of a control seat. Civil Aviation Order 20.16.3, subsection 11, states that a person may occupy a seat at which fully or partially functioning dual controls are fitted if the pilot gives adequate instruction to that person to ensure that the controls are not interfered with in flight. Civil Aviation Order 20.11, subsection 14.1, prescribes the contents of a passenger briefing. Civil Aviation Order 20.11, subsection 14.2, states that the operator of an aircraft required to carry life jackets shall ensure that all passengers are orally briefed by a crew member on the location and use of life jackets and shall include a demonstration of the method of donning and inflating a life jacket. (NCN 108037 refers)
6.Perusal of company documents on 14 July 1998 revealed that a charter flight was conducted using floatplane VH-AQA without listing the passenger names. Civil Aviation Order 20.16.1, subsection 7, states that when passengers are carried on a charter or regular public transport flight, the operator or his representative shall compile a passenger list and leave it for retention at the aerodrome of departure. (NCN 108039)
7.On 29 January 1999 at or about 7:45am floatplane VH-AQA, with Ryan Morgan, (licence ARN 417487) as pilot in command overflew the Sydney suburb of Wahroonga in approximately a north-westerly direction toward Normanhurst/Thornleigh, at a height lower than 1000 feet above ground level. Civil Aviation Regulation (1988) 157 states that an aircraft must not fly over:
(a)any city, town or populous area, at a height lower than 1000 feet; or
(b)any other area at a height lower than 500 feet.
8.On 6 February 1999 at Hallets Beach on the Hawkesbury River floatplane VH-AQA under the command of an employee of Sydney Harbour Seaplanes Pty Limited, was used for the purpose of jumping from the wingtip into the water. Civil Aviation Regulation (1988) 250(1) states that the operator of an aircraft and the pilot in command must not permit a person to be carried on the wings or undercarriage of any aircraft or on or in any other part of the aircraft which is not designed for the accommodation of the crew or passengers, or on or in anything attached to the aircraft.
(T3:14-16)
11. As a result of the issue of this Show Cause Notice the applicant responded in writing to each of the allegations contained in the notice (see T4). Subsequently, an optional informal conference was held to discuss the Show Cause Notice (T5).
12. Following this informal conference the respondent advised the applicant that it would not proceed to suspend or cancel the AOC. In reaching this decision the respondent advised the applicant that:
After a careful consideration of all the evidence in this matter, including your formal response dated 7 June 1999 and aspects discussed at an informal conference held at the Authority’s Airport Central, Sydney, office on 25 June 1999, I am satisfied that the following facts and circumstances, as alleged in the Notice, did occur and that, in the absence of mitigating factors, are grounds upon which I could cancel your licence. My findings are:
1. You are the holder of AOC BK 519487-06;
2.Pilots in your employ at 14 July 1998 had not completed dangerous good training as required by Civil Aviation Regulation (1998) 262S (1);
3.Flight and duty time records for some pilots in your employ at 14 July 1998 were not maintained as required by Civil Aviation Order 82.3 appendix 1;
4.At 14 July 1998 company procedures were found to be insufficient for ensuring appropriate flight information was available for your operations;
5.A flight was undertaken between Sydney and Newcastle on 15 July 1998 when an inadequate briefing was given to passengers;
6.A charter flight was undertaken without a list of passengers being compiled and retained in accordance with the requirements of Civil Aviation Order 20.16.1; and
7.On 29 January 1999 a floatplane operated by a pilot in your employ overflew a suburb of Sydney at a height less than 1000 feet above ground level in contravention of the requirements of Civil Aviation Regulation (1988) 157.
I find also that, from the formal response you have provided and on recommendations flowing from matters discussed at the informal conference, mitigating circumstances exist in relation to items 2 to 7 inclusive as listed above.
I do not propose to cancel your AOC on this occasion. In making my decision, I have taken into account the matters referred to me by your Director, General Manager and Chief Pilot Mr Rob Britten by way of explanation, his acknowledgment that you had erred on some occasions, the systems that he has put in place to minimise the risk of future breaches and my assessment of his veracity at the conference as well as my assessment that you are not likely to offend again in a manner likely to threaten air safety.
I cannot let the matter rest without making some observations concerning the matters generally. Your pro-active attitude to safety matters is acknowledged and encouraged, but development of systems within your organisation needs to be continued to ensure that in the event of a sudden loss of key personnel, all members of your organisation have all the requisite understanding and knowledge to continue to operate safely.
I observe that each of the incidents alone in the Notice are not in themselves of a major nature, but they are part of safety requirements and collectively may be an indicator of serious concerns. As I have said on this occasion I do not propose to take any action in respect of your AOC, but I would suggest that, in keeping with the Authority’s responsibilities, further lapses will not be treated as leniently.
(T6: 79-80)
13. On 29 October 1999 the applicant’s AOC No.519487-08 was re-issued for a further period, expiring at the end of October 2000. The AOC authorised the applicant to conduct, in Australian aircraft, RPT operations by day under visual flight rules (VFR) and also to undertake charter and aerial work operations of the kind set out in Schedules to that AOC (T7).
14. On 24 August 2000 one of the applicant’s seaplanes, VH-AQA, while taking off at Rose Bay on a charter flight, struck the mast of a yacht being sailed by members of the Israeli Olympic yachting team (T24). The incident prompted an official investigation (T59-T63).
15. On 23 September 2000 one of the applicant’s aircraft was involved in another incident. On this occasion a seaplane, VHN00, being flown by one of the applicant’s pilots, Mr Ian Lambert, made a landing approach on the water at Gosford. During this approach:
The pilot misjudged the landing flare and a float contacted the water in too low a nose attitude. The float ‘dug in’ resulting in the pilot losing control. In the ensuring sequence the left wing of the aircraft was substantially damaged. Ultimately the aircraft remained floating on the water. No other vessels were involved or were within the vicinity.
(T64)
16. The two incidents described appear to have prompted an investigation by the respondent’s officials into the operations of SHS (see R2: paragraph 3). The investigation came only a few weeks before the applicant’s AOC was due to expire. On 11 October 2000 the applicant filed an application for reissue of its AOC (T39). In that application it noted that the operations proposed were both RPT and charter within Australian territory. The type of aircraft to be operated remained the four De Havilland Beaver floatplanes in the applicant’s fleet. The proposed organisation responsible for the maintenance of the aircraft was Airag Aviation Services Pty Limited (Airag).
17. The personnel section of the AOC application indicated that a total of six flight crew would be employed. The key personnel listed in the form showed Mr Britten to be continuing in the role of Chief Executive Officer and Chief Pilot while the Maintenance Controller was stated to be Mr Len Gowers, a position which he had occupied since 1993. There were stated to be no changes to the organisation proposed since the last application for an AOC had been made.
18. It should be noted that on the same date that the applicant filed its application for re-issue of its AOC it also completed a document titled “Airworthiness Assessment Form. Application for Charter (Domestic) Air Operator Certificate (AOC)” (T38). This document listed the same aircraft as those contained in the AOC application and also indicted that Mr Gowers was the Maintenance Controller for these aircraft.
19. On 20 October 2000 the respondent advised the applicant that it was proposing to refuse to renew the AOC (see Attachment 1) (T47: 210-215). In this Show Cause Notice the respondent asked the applicant to provide it with written reasons by 26 October 2000 why a recommendation should not be made to the delegate that the AOC should not be renewed on the basis of the facts and circumstances set out in the Notice (T: 216).
20. On 23 October 2000 the applicant did make a detailed written response in regard to each of the facts and circumstances set out above (T48). On 30 October 2000, at the applicant’s request, an informal conference was conducted to discuss the issues raised in the Show Cause Notice of 20 October 2000 (T50). Following that conference, a recommendation was made by Mr John Slaughter, CASA Sydney Basin Area Manager, to Mr Rob Collins, the delegate considering the re-issue of the applicant’s AOC, that this AOC not be re-issued (T51). In making this recommendation Mr Slaughter noted that it was necessary:
… because the show cause issues collectively indicate a systemic tendency for unsafe conditions to become established, thus providing a measure of the culture of the company. The operations conducted by this organisation include single engine VFR RPT and in such an environment any cultural inclination to short-cut methods or breach rules could have an impact of further reduction of safety towards a level which would be unacceptable. The organisation cannot demonstrate that its conscious level of safety awareness, its staffing capacity and its implementation of safety system methods is at an appropriate level. While there is some evidence that the company is aware of a need for proper systems of control and that it may be able to establish such systems, the evidence also leads to the conclusion that, on the balance of probabilities, the company is not able to put those systems into effect.
The organisation has failed to adequately address issues raised in, and undertakings made in response to, a show cause action in 1999. Similar issues have recurred and have been addressed in the current show cause notice.
(T: 249)
21. Referring to the specific items contained in the Show Cause Notice of 20 October 2000 Mr Slaughter observed that items 9 and 17 had been disregarded and were not therefore relied upon.
22. On 31 October Mr Collins accepted the recommendation made by Mr Slaughter and wrote to the applicant advising it that AOC 519487-08 would not be re-issued. Mr Collins added that this decision had been made after carefully considering the applicant’s response to the Show Cause Notice and to the representations which had been made at the informal conference:
In reaching my decision I accept your response in relation to item 9 and I have disregarded item 17, but find that the other matters alleged did occur. I am not satisfied that SHS, as holder of the AOC, has complied with, or is capable of complying with, provisions of the Civil Aviation Act, regulations and Orders which relate to aviation safety.
Section 28 of the Act requires that the Authority must not issue/re-issue an AOC unless it is so satisfied.
(T52: 252)
LEGISLATIVE AND REGULATORY PROVISIONS
23. Mention must now be made of relevant portions of the Act, Civil Aviation Regulations 1988 (CARs) and Civil Aviation Orders (CAOs) that apply to the present proceedings. As already noted the AOC which was issued previously to the applicant authorised it to conduct for commercial purposes RPT, charter and aerial work operations using Beaver floatplanes manufactured by De Havilland Canada (DHC-2). It was common ground between the parties that these aircraft are single engine floatplanes which are only capable of being operated under VFR conditions.
24. An Australian registered aircraft is not able to be flown or operated for prescribed commercial purposes in or out of Australian territory unless it has an AOC (s27 of the Act). By reason of s28 of the Act CASA must issue an AOC if satisfied about certain matters:
28 CASA must issue AOC if satisfied about certain matters
(1)If a person applies to CASA for an AOC, CASA must issue the AOC if, and only if:
(a)CASA is satisfied that the applicant has complied with, or is capable of complying with, the provisions of this Act, the regulations and the Civil Aviation Orders, that relate to safety, including provisions about the competence of persons to do anything that would be covered by the AOC; and
(b)CASA is satisfied about the following matters in relation to the applicant’s organisation:
(i)the organisation is suitable to ensure that the AOC operations can be conducted or carried out safely, having regard to the nature of the AOC operations;
(ii)the organisation’s chain of command is appropriate to ensure that the AOC operations can be conducted or carried out safely;
(iii)the organisation has a sufficient number of suitably qualified and competent employees to conduct or carry out the AOC operations safely;
(iv)key personnel in the organisation have appropriate experience in air operations to conduct or to carry out the AOC operations safely;
(v)the facilities of the organisation are sufficient to enable the AOC operations to be conducted or carried out safely;
(vi)the organisation has suitable procedures and practices to control the organisation and ensure that the AOC operations can be conducted or carried out safely;
(vii)if CASA requires particulars of licences held by flight crew members of the organisation – the authorisations conferred by the licences are appropriate, having regard to the nature of the AOC operations; and
(c)if the AOC sought would authorise the operation of a foreign registered aircraft on domestic commercial flights – CASA is also satisfied that the additional conditions in section 28A have been met.
(2)The financial position of the applicant is one of the matters that CASA may take into account in forming a view for the purposes of paragraph (1)(a).
(s28(1) and (2))
25. Section 28 of the Act also provides that the following definitions shall apply to this section:
(3)In this section:
AOC operations means the operations covered by the application.
applicant’s organisation means the organisation established, or proposed to be established, by the applicant to conduct or carry out the operations covered by the application.
key personnel means the people (however they are described) that hold, or carry out the duties of, the following positions in the applicant’s organisation
(a)the chief executive officer;
(b)the head of the flying operations part of the organisation;
(c)the head of the aircraft maintenance part (if any) of the organisation;
(d)the head of the training and checking part (if any) of the organisation.
(s28(3))
26. Within this legislative framework for the issue of an AOC CASA, which is established under the Act, is charged with the function of conducting the safety regulation of civil air operations in this country (s9). In exercising its powers and performing its functions CASA must regard the safety of air navigation as the most important function (s9(A)). The Tribunal, standing in the shoes of the decision-maker, is similarly bound by this statutory directive.
27. By reason of ss27(2) and 27(9) of the Act, except as authorised by an AOC, an Australian registered aircraft cannot be flown or operated for prescribed commercial purposes in or out of Australian territory. One of the prescribed commercial purposes is “charter purposes” as defined by CAR206(1)(b). These purposes are to be distinguished from RPT purposes as defined by CAR206(1)(c). Different regulatory provisions apply to charter and RPT AOCs. In particular, a charter organisation does not need a check and training organisation or a maintenance controller.
28. By s28BA of the Act, an AOC is subject to a number of statutorily imposed conditions. These include, so far as they are relevant to the present matter, the following conditions set out in Part 82 of the CAOs:
· the AOC holder, while a charter or RPT, must establish a position of Chief Pilot and appoint a person to that position who must be approved by CASA (see CAO 82.0, clause 5. Appendix 1 to CAO, 82.0 sets out the minimum qualifications that a Chief Pilot must meet together with the approval process for, and responsibilities of, a chief pilot. See also CAO 82.1, clause 2.2, re charter operations; CAO 82.3, clause 2.2, re RPT operations, and exhibit R10);
· the AOC holder conducting RPT operations must establish a training and checking organisation under CAR217 and do so in accordance with the CAOs (see CAO 82.1, clause 3.1; CAO 82.3, clause 3);
· the AOC holder conducting RPT operations must establish a system of maintenance control in conjunction with a system of maintenance for its aircraft in accordance with the requirements of the CARs: see CAO 82.3, clause 4. One of these requirements is that a maintenance control manual must be prepared by an operator of class A aircraft: CAR42ZY. All aircraft flown in RTP operations must be maintained as class A aircraft. A maintenance controller must also be appointed to control all maintenance carried out on the AOC holder’s aircraft and to develop, organise and supervise all activities and procedures specified in the maintenance control manual: see CAR42ZV and Part 2 of Schedule 9 to the CARs.
· each director of a corporate AOC holder must at all times take “all reasonable steps to ensure that every activity covered by the AOC, and everything that is done in connection with such an activity, is done with a reasonable degree of care and diligence”: s28BE of the Act;
· the AOC holder must at all times maintain an appropriate organisation with a sufficient number of appropriately qualified personnel and a sound and effective management structure, having regard to the nature of the holder’s operations (s28BF of the Act).
29. In addition to these conditions which were in force at the time of the delegate’s decision to refuse the re-issue of an AOC to the applicant a further condition was that, unless otherwise approved in writing by CASA, each operator conducting RPT operations should conduct operations in multi-engine aeroplanes equipped for flight under the Instrument Flight Rules (IFR) and should generally conduct each flight under the IFR unless otherwise approved in writing by CASA: see CAO 82.3, clause 7. However, as will be noted in more detail below, on 1 December 2000 a new CAO came into effect which amended CAO 82.3, clause 7 to make it possible to use single engine aircraft in RPT operations under VFR in daytime without having to obtain CASA’s approval in writing. The revised CAO also set out conditions under which such operations were to be conducted including a requirement that any aircraft had to be equipped for IFR flight: Civil Aviation Amendment Order (No.20) 2000.
30. In addition to these conditions s20AA4 of the Act prohibits an aircraft being flow unless a maintenance release under the CARs that covers the duration of the flight is in force. By CAR50 a flight crew member, or an operator or a certificated registration holder is required to enter on a maintenance release details of any defect or major damage of which that person becomes aware in relation to an aircraft. Major damage is defined in relation to an aircraft as:
Damage of such a kind that it may affect the safety of the aircraft, or cause the aircraft to become a danger to the person or property.
The term “major defect” is similarly defined: see CAR2 and its definition section.
31. In respect of defects simplicita, a Certificate of Registration (COR) holder who becomes aware of a defect in an aircraft must have an investigation made of that defect and if the defect is discovered to be a major defect, the COR holder must make a relevant report to CASA. However, any person connected with the operation of, or maintenance for, an Australian aircraft who discovers a major defect of the kind set out in CAR51A(1), must report that defect immediately to CASA: CAR51A(2).
32. Upon completion of flying operations on each day an aircraft is flown, the owner, operator or pilot in command must record on the maintenance release the total time in service of that aircraft on that day: CAR43B.
33. In addition to these provisions a detailed network of primary and secondary legislation also governs the legal responsibilities of an AOC holder. Many of these provisions cast a legal obligation to ensure compliance with regulations not only on the chief pilot, flight crew member or COR holder but also on the operator who has an overriding duty to:
“ensure that every activity covered by the AOC, and everything done in connection with such an activity is done with a reasonable degree of care and diligence.
(s28BE(1) of the Act)
34. Section 28BE(3) provides that:
It is evidence of a failure by a body and its directors to comply with this section if an act covered by this section is done without a reasonable degree of care and diligence mainly because of:
(a)inadequate corporate management, control or supervision of the conduct of any of the bodies directors, servants or agents; or
(b)failure to provide adequate systems for communicating relevant information to relevant people in the body.
ISSUES
Scope of Review
35. A fundamental question which requires consideration prior to any analysis of the evidence presented in this case concerns the permissible scope of the review to be undertaken by the Tribunal. A quite detailed discussion of this question took place during the course of the oral submissions made on behalf of both parties at the conclusion of the hearing, and after detailed written submissions had also been filed by both parties. The discussion was precipitated by the applicant’s legal adviser’s discovery of the existence of Civil Aviation Amendment Order (No.20) 2000 (see transcript 18 January 2001: 2-4). Up until this late point in the hearing the entire case had been presented by both parties on the basis that the decision under review was that made by the delegate of the respondent, on 31 October 2000, to decline to re-issue an AOC to the applicant to undertake RPT, charter and other aerial work. As already noted, a number of statutorily imposed conditions apply to such an AOC holder including a number that are specific to RPT operations. These include establishment of a training and checking organisation; the appointment of a maintenance controller; and the conduct of operations in multi-engine aeroplanes unless otherwise authorised by CASA.
36. With the commencement of the amended provisions of CAO82.3, which flowed from the gazetting of the new order on 30 November 2000, it was conceded by Mr Somerville, on behalf of the applicant, that it could not meet the requirements specified in paragraph 7.4 of the revised CAO. Accordingly, the Tribunal could not be satisfied concerning a statutory condition that had to be fulfilled for any AOC to issue which included RPT operations. Mr Somerville contended that on the basis of the evidence that had been presented the correct and preferable decision that the Tribunal should now make, standing in the shoes of the original decision-maker, was to set aside the original decision and in its place substitute a decision to issue an AOC limited to charter operations. Mr Somerville also said that if he had been aware of the new CAO he would have conducted his case very differently since much of the evidence which had been led was related to matters associated with RPT operations and the requirements for a maintenance controller.
37. Mr Harvey, on behalf of the respondent, admitted that “considerable embarrassment” had been caused by the failure on the part of the respondent to realise that this amendment had been made to the CAOs. He suggested that the omission pointed to the complexity of the delegated legislation and regulatory context in which CASA operated. He also contended, however, that on the basis of this new provision and the concession made by the applicant that it could not satisfy its requirements, the Tribunal itself could not be satisfied as to requirements under both ss28(1)(a) and (b) of the Act. Further, there was no direction or recommendation which could be made by the Tribunal which could lawfully have the effect of requiring CASA to issue an AOC to the applicant for RPT operations in the aircraft previously operated by the applicant under the AOC which expired on 31 October 2000. Mr Harvey also contended that the case had been run entirely on the basis that the decision under review was one to refuse to issue an RPT AOC. Different considerations applied to a charter AOC and pursuant to the decision of the Federal Court in CASA v Coburn (1997) 24 AAR 389 at (397) the Tribunal would fall into an error of law by now treating this application as if it was one for a charter AOC. It was also not a matter of dispute between the parties that a discreet charter AOC application had been made by the applicant to CASA and CASA had made a preliminary ruling on this application (see R2 and annexure A; transcript 18 January 2001).
38. Bearing in mind these and related submissions which appear on the transcript of the hearing, the Tribunal makes the following determinations concerning the scope of the review which should be conducted in this case:
(1)As is apparent from the recommendations made to the respondent’s delegate at the time of making the decision under review three available options were considered – issuing the AOC; administrative actions varying the AOC to permit charter operations only; and not re-issuing the AOC (T: 249). The delegate preferred the latter option but it was quite open for him to adopt either of the other options including a limitation to charter operations. Even though the application form completed by the applicant for an AOC was headed RPT Operations clear provision was made in that document for the inclusion of other operations, and the applicant indicated that it wished to pursue charter work. It also completed a description of the aerial work that it wished to conduct but did not tick the appropriate section of the form under this heading. Further, a separate form was also completed at the same time by the applicant providing information about specific aspects of the charter operations (see T38, 39). All of these documents were before the original decision-maker and they are also before the Tribunal. As such the Tribunal cannot see any way in which it would infringe the ruling made by the Federal Court in CASA v Coburn by now treating the AOC application on the basis that it can only be issued in regard to charter operations. In Coburn the Federal Court held that it was not open for the Tribunal to embark on a review of a particular decision not the subject of the application before the Tribunal under the guise of reviewing a reviewable decision. The only way that such an infringement could now take place would be if the Tribunal were to adopt and consider as part of its present decision-making the later and separate application made on behalf of the applicant to CASA on 6 November 2000 for an AOC restricted to charter operations. That application is quite clearly an entirely separate matter and not one which is within the current purview of the Tribunal.
(2)In light of the concession made by the applicant that it cannot comply with the statutory condition linked to CAO82.3:7, the other statutory provisions which were originally relevant to the operation of RPT operations also become redundant (but see also paragraphs 51-53 below).
39. In reaching these conclusions about the scope of its review the Tribunal also wishes to express its sense of disquiet and frustration about the way in which it has been asked to determine this matter. It is quite remarkable that the respondent’s own legal advisers seem to have been so ill-informed about the status of the regulatory framework applying to the issue of the AOC for the applicant that as late as 15 January 2001, when the respondent filed its detailed written submissions, no mention was made of Civil Aviation Amendment Order (No.20) 2000. It would seem that this particular CAO was only discovered through the diligence of the applicant’s legal advisers – a discovery which as has been noted was only drawn to the attention of the Tribunal on 18 January 2000 after all of the evidence had been heard and in the course of closing oral submissions. The Tribunal has no doubt that the applicant must have been prejudiced in the way in which it presented its case by these actions of the respondent. They are not the actions of a model litigant, nor those of a regulatory body which appears well-informed concerning the way in which its own senior officials exercise their very extensive delegated powers.
EVIDENCE
Presentation
40. Reflecting the way in which the various allegations made by the respondent were listed in the Show Cause Notice of 20 October 2000 (attachment 1) the applicant’s presentation of its case was based largely upon responses to each allegation contained in this Notice. It is the Tribunal’s task, however, to reach an ultimate conclusion about whether it is satisfied about certain matters contained in s28 of the Act which do not fit into the same framework of response. Accordingly, the Tribunal seeks to address the evidence having regard to the provisions of s28 and its associated and overriding principle that when exercising its powers and performing its functions it must regard the safety of air navigation as the most important consideration (s9A).
Air Operations
41. Reference has already been made to the two incidents, occurring within a short time of one another, which led the respondent’s officials to examine the applicant’s operations in some detail only weeks before its application for an AOC renewal. Neither of the incidents were mentioned directly in the Show Cause Notice, nor was it alleged by the respondent that either had been the result in whole or part of any breach by the applicant of a maintenance or related operational requirement.
42. In his evidence to the Tribunal Mr Britten agreed that both incidents could be attributed to pilot error. The pilot concerned in the incident in which a yacht was struck was not permitted to resume his duties and was subsequently dismissed. All of the other pilots employed by the applicant received additional training to avoid the possibility of a similar mishap. Mr Britten indicated that the applicant had conducted at least another 50,000 take-offs from Rose Bay without incident (A4: paragraph 4).
43. The pilot involved in the incident at Gosford on 23 September 2000 was Mr Ian Thomas Lambert. Mr Lambert was a very experienced pilot with more than 5,800 hours of flying time including about 5,500 hours on floatplanes. He had been employed by the applicant on a full-time basis from March 1994 to September 1997 and had undergone regular proficiency and check flights conducted by Mr Britten. He had left the employ of the applicant for a period and returned in March 2000 on a part-time basis. Prior to commencing that employment and prior to resuming flying any of the applicant’s aircraft Mr Britten had made arrangements for him to carry out a proficiency check flight in one of the applicant’s aircraft. This occurred on 13 April 2000. Mr Britten asked him various questions during the proficiency flight and had also required him to land and take off about five times. He recalled that on about two of these occasions he had been landing the aircraft with the nose too low and Mr Britten had required him to repeat these landings correctly (A2: paragraphs 3-11).
44. Mr Lambert also stated that on regular occasions over the years he had been flying he had obtained dangerous goods accreditation. He obtained such accreditation in October 1999 in the Maldives where he was then flying which was accreditation valid for 12 months. This accreditation remained valid as of 13 April 2000 but was not a current Australian accreditation. He had obtained such a certificate on 11 July 2000 (A2: paragraphs 13-17).
45. In regard to the incident on 23 September 2000 Mr Lambert said in his opinion the incident was not the result of any alleged deficiency in his test flight of 13 April 2000, as had been alleged in the respondent’s Show Cause Notice (paragraph 13).
46. In the course of his personal testimony Mr Britten was asked about his procedures for conducting pilot proficiency tests and training (see transcript 5 January 2001: 57-62). Mr Britten agreed that he had conducted the proficiency check of Mr Lambert on 13 April 2000. The check had taken about 35 minutes and he had ticked off a satisfactory performance on each of the items. He had not done a stall recognition check and he felt that this had not in any way contributed to the subsequent incident at Gosford. That incident was caused by an error of judgment on Mr Lambert’s part. He would not allow him to fly an aircraft again without him undertaking specific training to ensure that there was no recurrence of the incident at Gosford.
47. Mr Britten said that he did not know whether Mr Lambert had kept his own flight and duty time records. He admitted that he had been in breach of the working of CAO82.3 appendix 2 section 5.1c by not recording the number of times Ian Lambert had carried out the landing sequence on the occasion that he had conducted the proficiency test (see Show Cause Notice paragraph 14; A1: paragraph 118-128).
48. Mr Britten was also asked about several air operations incidents referred to in the earlier Show Cause Notice of 31 March 1999 (see paragraph 10 above). In regard to item 5 on the earlier notice he said that the inadequate pilot briefing given to a passenger on 16 July 1998 had involved a person who was in fact a CASA official and also a fully qualified pilot. So far as the incident alleged in item 7 of the earlier Show Cause Notice was concerned Mr Britten said that the pilots involved had been counselled as a result of their low flying. In relation to item 8, an incident in which an employee pilot was alleged to have jumped off the wing tip into the water, Mr Britten said that it was normal for pilots to walk on the wing in order to engage in refuelling operations. However, in this instance the pilot had lied to him about the circumstances surrounding this incident and other matters and he had been dismissed (transcript 4 January 2001: 63-65).
Maintenance and Related Operations
49. As has already been indicated the majority of the evidence presented to the Tribunal related to a range of allegations contained in the Show Cause Notice of 20 October 2000 about deficiencies in the maintenance control and procedures put in place by the applicant. The applicant’s Maintenance Controller at all relevant times was Mr Len Gowers. Mr Len Gowers was not available to give personal testimony to the Tribunal (see transcript 4 January 2001: 2-3).
50. As already noted it is a statutory condition that an AOC holder conducting RPT operations establish a number of maintenance control procedures including the appointment of a Maintenance Controller to control all maintenance carried out on the AOCs holder’s aircraft (see paragraph 28 above). The evidence showed that in addition to Mr Gowers’ appointment the applicant also utilised the services of Airag, a company which was authorised by CASA to carry out work on aircraft of the type operated by the applicant. Another maintenance organisation was also involved on occasions in the servicing of the engines on the applicant’s aircraft.
51. It was contended on behalf of the applicant, following the concession made about the limitation of the Tribunal’s review to the issue of a charter operation only AOC, that it should no longer have regard to the evidence led during the hearing about those matters listed in the Show Cause Notice which dealt with alleged failures to comply with provisions which only had relevance to RPT operations (see in general transcript 18 January 2001: 15-19). No detailed list was submitted of the specific provisions in the Show Cause Notice that fell under this rubric. However, it is clear that items 3, 4, 5 and 6 all involve contentions regarding the failure to involve the Maintenance Controller in the applicant’s decision-making process.
52. The respondent did not accept the submission made by the applicant on this point. Mr Harvey contended that the reasons given for recommending the refusal of an AOC for RPT operations applied with equal force to those concerned with charter operations. The Show Cause issues demonstrated collectively, according to the respondent’s submission, that there was a systemic tendency for unsafe conditions to become established within the applicant’s company and that this extended to charter as well as RPT operations.
53. Having regard to these submissions the Tribunal agrees in part with both the applicant and the respondent. There is obviously no longer a need for the applicant to demonstrate that it has in place the statutory conditions associated with RPT operations but it must still satisfy the provisions of s28 of the Act which relate to a broad range of safety issues including the establishment of an organisation that is “suitable to ensure that the AOC operations can be conducted or carried out safely, having regard to the nature of the AOC operations” (s28(1)(b)(i)). In this context it is, in the Tribunal’s view, both relevant and necessary to examine the applicant’s past approach to maintenance issues at large in order to judge its current capacity to conduct future operations, even if these are now restricted to charter operations.
54. Mr Paul Simpson, a senior airworthiness inspector employed by the respondent, provided personal testimony to the Tribunal in regard to the various maintenance matters referred to in the Show Cause Notice (see R6; transcript 11 January 2001: 2-46; 12 January 2001: 2-93). Mr Simpson made it clear that his testimony was restricted entirely to that concerned with the maintenance of the applicant’s aircraft and that he had no professional expertise in the area of air operations. He said that he had been responsible for oversighting the operations of the applicant since joining CASA about three years ago.
55. Mr Simpson indicated that three of the contentions contained in the Show Cause Notice – items 4, 7 and 8 – related to the incident on 23 September 2000 which has been referred to earlier. In his statement (R6) Mr Simpson had the following to say about these particular allegations:
8.CAR 51A(2) requires major defect to be reported to CASA immediately. On 3 October 2000 Len Gowers the Maintenance Controller of the Respondent [sic ? the applicant] telephoned me and said words to the effect ‘I am submitting a defect report to you’. The same day I received from the Respondent the defect report which is T37. I inspected the damaged wing at the Airag Aviation Services hangar on about 4 October 2000. It was apparent to me that the wing had sustained major damage. In particular the wing was broken between the wingtip and strut attachment point and a failure had completely ripped through the wing skins and the front and rear spar. I understand that following the accident to aircraft VH-NOO on 23 September 2000 the Respondent [sic ? the applicant] took the wing off another aircraft which was undergoing maintenance at the time, trucked it to Woy Woy, replaced it the same day and then put the aircraft back into revenue service. I understand that the persons who carried out the work were Bert Welfare, a LAME holder and John Land an AME. The Maintenance Controller, Len Gowers, was not involved in the operation.
At the time a wing is replaced following an accident a major structural inspection should have been carried out. This would require the manufacturer’s maintenance manual to be consulted to see what steps are necessary to return the aircraft to service. This was not done. The major structural inspection should also have been recorded in the aircraft log book. This was not done. In my opinion it was irresponsible to return the aircraft to revenue service without a major structural inspection being done. Annexed hereto and marked with the letter ‘D’ is the relevant part of the manufacturer’s manual for the DH-2 aircraft which sets out the procedures to be followed following damage to the aircraft structure. Following the replacement of the wing at Woy Woy it would have been possible for the Applicant to have obtained a Special Flight Permit from CASA to allow the aircraft to be flow back to its maintenance base to allow a major inspection to be carried out. The Applicant made no such application for such a Special Flight Permit. I inspected the aircraft on 10 October 2000 and issued an Aircraft Survey Report 76198, a copy of which is annexed hereto and marked with the letter ‘E’. This was a code A report which is the highest grade possible. The effect of my issuing that report was to immediately ground the aircraft. In response to that Aircraft Survey Report I received two acquittals, one from Rob Britten and one from Bert Welfare, copies of which are annexed here to and marked with the letters ‘F’: and “ ‘G’. There was no acquittal from the Maintenance Controller.
(R6:paragraph 8)
56. In his written statement, and in his personal testimony, Mr Britten did not contest the allegations made in paragraph 4 of the Show Cause Notice but he did submit that his actions had not compromised safety. This was because after inspecting the aircraft he had, as Chief Pilot, contacted Airag who had arranged to repair the aircraft at the site. The damaged wing on the aircraft had been replaced by another taken from the applicant’s aircraft VHAQU. Mr Britten said that following the wing replacement the aircraft had to the best of his recollection flown passengers the day after the accident. Airag had indicated to him that this was appropriate and he believed that they had carried out a heavy landing inspection (see in general A1: paragraph 16-19; 30-34; transcript 5 January 2001: 16-17).
57. During the course of his personal testimony Mr Britten was questioned by Mr Harvey about whether in addition to the heavy landing inspection a structural inspection has been carried out. The following exchange then took place between Mr Britten and Mr Harvey:
But they didn’t carry out a structural inspection, did they?---There were inspections carried out by the chief engineer of Air Ag, Mr Bert Wellfare.
Do you know whether Mr Wellfare or anyone else from Air Ag carried out a structural inspection?---First of all I’m not qualified to know what a structural inspection is but I do know that he carried out inspections of the structural surface of the aircraft.
So you don’t know whether he actually performed a particular inspection known as a structural inspection of that aircraft, is that right?---I don’t know what defines as a structural inspection so I can’t answer that question.
You’re not aware of anything in your maintenance control manual which might govern that question?---Not that I recall, no.
So you’re not able to say whether a major structural inspection was required to be done in accordance with the maintenance control manual or in accordance with the manufacturer’s manual?---No, I’m not.
You spoke to Mr Gowers on, what was it, 3 October?---It would seem about that date, yes.
But you didn’t speak to Mr Gowers bout the wing replacement or the inspections of the work that had been done before that date?---That’s correct.
And you were the one to arrange with Air Ag for the wing replacement to be done, weren’t you?---I was.
Did you not feel that that was a matter that Mr Gowers, as maintenance controller, ought to have been involved in?---Upon reflection he should have been involved, yes.
(transcript 5 January 2001: 17-18)
58. Pressed further by Mr Harvey on cross-examination Mr Britten produced an aircraft survey report (R5) dated 17 October 2000 which indicated that a structural damage inspection had been carried out. Two inspections had been conducted but not necessarily on the same day. Mr Britten continued to maintain that he was satisfied that when he flew the aircraft out of Gosford on the day that the repairs were carried out, the person who had performed these repairs and carried out the inspections had satisfied him, as the pilot, that the aircraft was structurally sound.
59. In regard to the allegations contained in paragraph 7 and 8 of the Show Cause Notice Mr Britten contended in his written statement that he had not reported the matter to CASA until 3 October 2000 because he did not consider the damage caused to the aircraft was a “major defect” within the meaning of CAR51A. He further contended that CAR47(1) did not apply either because the damage made it obvious that the aircraft could not be flown before the damage to the aircraft was remedied (Show Cause Notice paragraph 8).
60. Mr Britten was cross-examined by Mr Harvey about his understanding of the definition of major damage contained in the CARs. He denied that he had told Mr Gowers that only minor damage had been caused but he continued to contend that within the definition of the regulations the damage was not major. During the course of this cross-examination by Mr Harvey the following exchange took place with Mr Britten:
You say that the damage to the wing does not come within your understanding of the definition of major damage in the regulations. Is that right?---I think the definition of major damage says that it may endanger the safety of the aircraft or cause the aircraft to become a danger to persons or property. Once this damage had already been sustained, the future of it – that is, becoming a – safety of the aircraft, the aircraft was already at rest on the water. It would seem to me that it may affect the safety or cause the aircraft to become a danger. Those things would be in the future. So once the damage had already occurred, then these things – there was no further prospect of it further endangering the aircraft or hurting somebody in the future.
Well, isn’t it an extraordinary proposition, Mr Britten?---That’s your interpretation, sir.
You don’t think that the evidence you’ve just given is extraordinary?---I think it becomes a question, sir, of what you define as being something happening in the future or in the present.
I see, so that’s the way you interpret the notion of major damage, as to mean only something that is to happen in the future. Is that right?---To my understanding, the way that reads, it may affect the safety of the aircraft or cause the aircraft to become a danger. So these are things that will happen in the future.
Let’s just take this slowly. The wing was damaged?---It was.
It was damaged by virtue of the heavy landing?---Correct.
Do you say that that damage that was done was of such a kind that it could or may affect the safety of the aircraft?---If the aircraft were, for instance, flown, yes.
Yes. And could that damage cause the aircraft to become a danger to person or property?---If the aircraft had been flow, yes.
Yes. So it was major damage, was it not?---Subject to what you’re going to do with the aircraft, sir. If you’re going to park it on the land, no.
It doesn’t matter what you’re going to do with the aircraft, does it, in terms of the definition of major damage or the requirement to report major damage?---I believe it’s very relevant as to what you’re going to do with it, sir.
I see. All right. You couldn’t fly that aircraft at all in the condition in which it was after the accident. Is that right?---That’s correct.
(transcript 5 January 2001: 31-32)
61. Mr Britten conceded that he had told CASA that his failure to inform or involve Mr Gowers, the Maintenance Controller, immediately after the incident was an oversight on his part. In regard to the failure to declare the aircraft to be un-airworthy at the time of the incident Mr Britten said that there was:
… an entry made on the maintenance release which, I believe, covered the situation. It was subsequently pointed out to me that that entry may have been incomplete but a further careful reading of the appropriate order requires that that word would not have been required.
(transcript 5 January 2001: 33)
62. Mr Britten acknowledged that the pilot of the aircraft at the time of the incident, Mr Lambert, had not endorsed the maintenance release but that action had been taken by him.
63. During the course of his personal testimony Mr Simpson was asked a number of questions about the Gosford incident and the repairs made to aircraft VH-N00 following that incident. Mr Simpson admitted that he had not asked Mr Bert Welfare, who had signed one of the two acquittals received in response to the aircraft survey report he had issued, whether or not Mr Welfare had carried out the requisite structural inspection of VH-N00 in situ after a replacement wing had been fitted (see transcript 12 January 2001: 32). In retrospect, Mr Simpson agreed that if Mr Welfare had done anything in situ in regard to the aircraft it did not result in an adverse effect on the operating characteristics of VH-N00. He continued to maintain, however, that without the structural inspection being carried out there could well have been a major defect which could have caused structural failure in the aircraft (see transcript 12 January 2001).
64. Mr Simpson was also questioned about item 11 in the Show Cause Notice of 20 October 2000 which related to a so-called “snag list” prepared by Mr Britten for Airag on 6 October 2000. The snag list related to a scheduled servicing for aircraft VH-N00 which was the same aircraft involved in the incident on 23 September 2000. In the Show Cause Notice it was alleged that the failure to enter the defects listed on that snag list on the maintenance release was a breach of the CARs “as they are all major defects”. Mr Simpson agreed with Mr Somerville, during his cross-examination, that this was an incorrect statement and that a more appropriate term to have used was that they “are all defects” (see transcript 12 January 2001: 49).
65. In his written statement Mr Britten provided a detailed description of the reasons that he had placed items on this snag list (see A1: paragraphs 47-85). Mr Britten explained that a maintenance release (MR) was a document which was required to be in force in relation to an aircraft in order for that aircraft to be permitted to operate. The document was kept permanently on an aircraft. An MR was always in operation for a limited time and would expire at the end of a specified number of flying hours or on a specified date, whichever was earlier. Prior to the expiration of a MR an aircraft was submitted to a licensed aircraft engineer for a periodic inspection so that a fresh MR could be issued.
66. A pilot who noticed any matter which required attention in regard to the functioning of an aircraft was required to write it into Part 2 of the MR. This would then bring the matter to the attention of any pilot before the aircraft was flown again. Following routine procedures a pilot always checked the MR to determine that the limited hours and time of the MR had not expired and would also check out Part 2 of the MR to determine whether any work was required to be carried out to the aircraft before it could be operated safely (see A1: paragraphs 36-39; 47-48).
67. Mr Britten further explained that it was customary in the aircraft industry when an aircraft went for a periodic inspection to prepare a work order for tasks which the operator wished to have performed, in addition to the maintenance items required as part of the regular inspection. It was in response to this customary procedure that he had prepared the snag list on 6 October 2000 for aircraft VH-N00.
68. During the course of his cross-examination by Mr Harvey, Mr Britten was taken sequentially through each of the items on the snag list (see transcript 5 January 2001: 41-57). Mr Britten acknowledged that several of the items on the list were defects but they had not been recorded on the maintenance release (transcript 5 January 2001: 41, 55).
69. In addition to the contentions made by the respondent in item 11 of its Show Cause Notice of 20 October 2000 it was also alleged in item 10 that on 7 September 2000 the MR for aircraft VH-N00 had been endorsed by one of the applicant’s pilots, Mr Tony Aguis, with a statement “excessive oil consumption”. This endorsement was contained in Part 1 of the MR indicating maintenance was required. Despite this endorsement the aircraft was operated by a number of pilots for 26 days after this endorsement without any maintenance being carried out.
70. Mr Britten indicated that the MR had been incorrectly endorsed by Mr Aguis who should have written this in Part 2 and not in Part 1 of the MR. He also said that immediately following the flight Mr Aguis had informed him verbally that the aircraft was using too much oil. Mr Britten had reviewed the oil consumption records of the aircraft and found that they were not using any excessive amounts of oil. At that time he was not aware that Mr Aguis had made an entry into Part 1 of the MR and accordingly the aircraft was allowed to be flown again. Mr Britten also said that he was arranging for all of the applicant’s pilots to undertake refresher instructions on the correct completion of defect notices in the MRs.
71. In item 12 of the Show Cause Notice the respondent made allegations concerning certain failures by the applicant to develop procedures relating to the control of its refuelling facilities. It was contended that the respondent had requested the applicant to develop these procedures and place them into the SHS operations manual on 8 April 1999 and again on 20 June 2000. Further, in his statement (R6) Mr Simpson indicated that the method used by the applicant to refuel its aircraft from drums on a barge carried with it a greater risk of water and other contaminants entering the fuel tanks of the aircraft than would a system of refuelling from a bowser (R6: paragraph 11).
72. Mr Britten acknowledged in both his written statement and personal testimony that the respondent had made requests of the type specified (see A1: 86). He indicated that the applicant had in place at its refuelling points at Rose Bay and Newcastle procedures which ensured the integrity of the fuel supply. The applicant’s operations manual had never contained a detailed procedure in relation to these refuelling procedures but CASA had still issued an AOC each year up until the present time. The applicant was also engaged in a continuing application to obtain government permission to install an underground fuel facility at Rose Bay but this process had been delayed for reasons outside the applicant’s control. He had delayed making any amendments to the operations manual until such time as this approval was granted.
73. Items 15 and 16 of the Show Cause Notice referred to the earlier Show Cause Notice of 31 March 1999 (or ? 31 May 1999). Both items alleged that the applicant had failed to honour undertakings made at a prior informal conference as well as breaching provisions of the CARs associated with dangerous goods awareness training and certification, and also the establishment of a system to record duty and flight times. In his written statement (A1: paragraphs 129-137) Mr Britten gave an explanation of these alleged deficiencies. He indicated that the applicant had now varied its operational procedures to take account of the need for maintaining current dangerous goods approval, training and certification for its pilots. He also stated that the applicant had in place a system of maintaining full and accurate duty and flight time records for all of the pilots on its staff and that these records were kept at the applicant’s Rose Bay headquarters.
74. In both his written statement and in his personal testimony Mr Britten acknowledged the statutory requirements of the Act referred to in items 18-20 of the Show Cause Notice of 20 October 2000. Mr Britten contended, however, that the applicant had a proper organisation and systems in place to comply with all of these requirements and denied that the applicant had failed to comply with any relevant direction of CASA (see A1: paragraph 139). Mr Britten also denied that CASA had any reasonable grounds for the concerns that it had expressed in relation to the matters outlined in the earlier Show Cause Notice of 31 March 1999 (or ? 31 May 1999), as contended in item 21 of the current Show Cause Notice.
75. In relation to item 22 of the Show Cause Notice which contended that many of the breaches found in both Show Cause Notices stemmed from “a lack of sound and effective management structure” by the applicant, Mr Britten denied the validity of this contention (A1: paragraph 141-148).
CONSIDERATION
Submissions
76. Quite extensive reference has already been made to both the written and oral submissions presented on behalf of both parties. The Tribunal found the submissions to be most helpful and has taken full account of them in the course of preparing this decision. However, in the interests of time and space, and with certain limited exceptions which will become apparent shortly, it is not intended to repeat these submissions here in any detail.
77. Throughout the hearing, which as the Tribunal has already indicated was conducted in a quite combative manner by both parties, many objections were taken to the admission of various aspects of the evidence presented. In particular, Mr Somerville objected, on behalf of the applicant, to the tendering of evidence by the respondent which related to matters that had not been referred to in either Show Cause Notice and which he contended placed the applicant in an invidious situation because it lacked an adequate opportunity to respond to these allegations in an appropriate way (see for example transcript 4 January 2001: 4-5; 22-30).
78. Mr Somerville drew attention in his submissions to the judgment of Davies J in Re Dahlia Mining Co.Ltd. and North West Iron Co.Ltd. trading as Savage River Mines And: Collector of Customs No.G339 of 1999 FED No.833 Administrative Law. In that matter Davies J said the following:
The Tribunal is not bound by the rules of evidence. The Tribunal will readily reject merely technical objections to evidence and will insist that matters which are not really in dispute will be proved in the most efficient manner. The Administrative Appeals Tribunal has been innovative in this respect. But to say that the Administrative Appeals Tribunal is not bound by the rules of evidence is not to say that it is not bound to provide to the parties a fair and equal opportunity to present a case. And this, the Tribunal ordinarily does. Because the Act contemplates that the ordinary course of the proceedings will be by way of reception of oral evidence on disputed matters, that is the way in which the Tribunal usually proceeds.
(at paragraph 56)
79. Mr Somerville also referred to passages from the High Court decision in Australian Broadcasting Tribunal v Bond & Ors (1990) 170 CLR 321, and in particular to the judgment of Deane J where he said, among other things, the following:
If a statutory tribunal is required to act judicially, it must act rationally and reasonably. Of its nature, a duty to act judicially (or in accordance with the requirements of procedural fairness or natural justice) excludes the right to decide arbitrarily, irrationally or unreasonably. It requires that regard be paid to material considerations and that immaterial or irrelevant considerations be ignored. It excludes the right to act on preconceived prejudice or suspicion. Arguably, it requires a minimum degree of ‘proportionality’ (cf. the CCSU case at page 410). When the process of decision making need not be and is not disclosed, there will be a discernible breach of such a duty if a decision of fact is unsupported by probative material. When the process of decision making is disclosed, there will be discernible breach of the duty if findings of fact upon which a decision is based are unsupported by probative material and if inferences of fact upon which such a decision is based cannot reasonably be drawn from such findings of fact. Breach of a duty to act judicially constitutes an error of law which will vitiate the decision.
(at paragraph 3)
80. Relying upon these authorities Mr Somerville submitted that the Tribunal should ignore all parts of the T documents to the extent that they contained unsubstantiated allegations. In particular, that applied to the additional material including T9 and T17.
81. The Tribunal accepts in full the principles which are espoused in these two decisions and also accepts the submissions made by the applicant which are based upon these principles. Thus it is not intended in this decision to have regard to unsubstantiated allegations and on that basis the material referred to in T9 and T17 has not in any way been taken into consideration by the Tribunal. It will, of course, be for others to determine whether or not the Tribunal has acted in an appropriate manner in regard to other allegations which are considered as part of this decision.
82. A further submission made on behalf of the applicant by Mr Somerville related to the way in which the Tribunal should deal with the evidence given on behalf of the respondent by Mr Simpson. Mr Somerville contended that Mr Simpson’s conduct was such, as demonstrated by his demeanour and responses to questions in cross-examination, as to show a bias or animus or at best overzealousness which was inappropriate to the exercise of his powers and responsibilities in the case. It was the applicant’s submission that the Tribunal should not accept his complaints or the evidence he gave. In contrast the Tribunal should accept the testimony provided by Mr Britten since it was given with “obvious frankness and truthfulness”.
83. In regard to this submission the Tribunal is not prepared to reject Mr Simpson’s testimony in the way that has been proposed by the applicant, and more will be said shortly about the Tribunal’s views concerning Mr Britten’s credibility as a witness. Mr Simpson did admit that in his written statement (R6) there were errors in paragraph 2 in regard to his qualifications. He had not worked as a LAME for Ansett Airlines but only as an AME, while he did not have an endorsement on heavy jet aircraft such as the Boeing 767 (see transcript 11 January 2001: 2-3). Mr Simpson was also subjected to a vigorous cross-examination by Mr Somerville concerning the various contentions made by him. Having regard to all of the personal testimony provided by Mr Simpson, as well as to the various documents which he presented, there was nothing which would lead the Tribunal to conclude other than that he was an honest and reliable professional witness. As a senior airworthiness inspector responsible for oversighting the operations of the applicant over a number of years he was in a good position to assess the way in which it conducted its maintenance related activities under the provisions of its AOC. Mr Simpson made it very clear that he had no expertise upon which to make an assessment of the air operations of the applicant and responsibility for such assessment was vested in other officials of the respondent.
84. The Tribunal now turns to consider the evidence which has been reviewed and to is findings about that evidence and the allegations made by the respondent.
The Applicant’s Operations and Organisation
85. The two Show Cause Notices issued by the respondent which have been referred to in some detail in these proceedings contain a summary of alleged deficiencies in the applicant’s operations which were discovered by CASA as a result of periodic audits and scheduled and un-scheduled surveillance conducted over a period between July 1998 and October 2000. It is apparent that many of the deficiencies referred to were the subject of aircraft survey reports (ASRs) and non-compliance notices (NCNs) issued by the respondent’s officials to the applicant at various times over that period. Not all of these deficiencies produced serious safety implications but taken overall they do, in the Tribunal’s view, show some recurring and disturbing themes.
Air Operations
86. The Tribunal finds that:
· a number of the applicant’s pilots were involved in breaches of flight rules or in incidents affecting safety including low flying in January 1999; jumping from the wingtip of an aircraft in February 1999; colliding with a yacht on take-off on 24 August 2000; and making a heavy landing on 23 September 2000. The most serious of these incidents were obviously those which occurred most recently. On the occasion of both of these recent incidents the aircraft concerned were involved in charter operations. On one of these occasions, that of 23 September 2000, passengers were in the plane at the time of the incident. No injuries were caused to any person during the course of these incidents but both did result in air safety investigations and, in the case of the 23 September incident, to the dismissal of the pilot.
· the nature of these incidents suggest that the applicant’s pilots were either not trained, or not trained adequately, in regard to the safe operation of the applicant’s aircraft. The person directly responsible for pilot proficiency training was the applicant’s Chief Pilot, Mr Britten. There is no doubt that Mr Britten, who qualified as a pilot in 1977, is an experienced commercial aviator. He has been a full-time commercial pilot for much of the past decade while also acting as the general manager and a director of the applicant. Mr Britten acknowledged that he had taken a number of actions designed to remedy the situation following each of the incidents involving his pilots which have been referred to above. These included counselling, dismissal and further training in various flight and related procedures. Nonetheless, incidents continued to occur of increasing gravity
· in regard to Mr Lambert, the pilot who was involved in the 23 September 2000 incident, Mr Britten admitted that he had not followed the strict wording of CAO 82.3, appendix 2 section 5.1(c) in recording full details of the proficiency test that he had conducted on 13 April 2000. The Tribunal can find no evidence that the way in which this proficiency test was conducted contributed in any way to the incident of 23 September 2000.
· the applicant’s pilots did make errors in the way in which they completed or failed to complete certain flight and duty time records. There was also evidence showing that at least one pilot, Mr Lambert, lacked the proper certification for the handling of dangerous goods.
Maintenance Control and Procedures
87. Mention has already been made of the Tribunal’s view concerning the relevance of the extensive evidence led in regard to the involvement or lack thereof of the applicant’s Maintenance Controller, Mr Len Gowers, in the control of the maintenance of the applicant’s aircraft. The Tribunal is satisfied that in general Mr Gowers was not involved, as he should have been, in the oversight of much of the maintenance conducted on the applicant’s aircraft over the relevant time period. Mr Britten, in the course of his testimony, admitted on a number of occasions that this was the case.
88. The evidence also suggests that at most times it was Mr Britten, the Chief Pilot, who performed the “de facto” role of a Maintenance Controller. This is apparent, for example, in regard to the circumstances surrounding item 3 of the Show Cause Notice of 20 October 2000. Under this item it was alleged that an unapproved installation, in which the Maintenance Controller was not involved, had been made of a certain location device. This device, dubbed an EPIRB, was fitted on a number of the applicant’s aircraft (see transcript 4 January 2001: 78). In his personal testimony to the Tribunal Mr Britten agreed that the constant position that he had taken when responding to CASA about this particular item was that his Maintenance Controller, Mr Gowers, had been involved in the installation process (transcript 4 January 2001: 78). He said that Mr Gowers had first provided him with advice as to how the fitment should take place and what the requirements for fitment were. He had provided this in a fax on 7 July 1997 (see A1: paragraph 13; annex A).
89. Mr Britten further agreed that Mr Gowers did not carry out the actual installation. He had no idea what Mr Gowers had assumed at the time about whether there was to be a permanent or a temporary installation. He gave him no instructions in relation to this and until July 2000 he had not appreciated that a permanent installation required maintenance data (see in general transcript 4 January 2001: 80-82). On 20 June 2000 the respondent’s officials issued an ASR (T10) in relation to this item which alleged that an EPIRB had been fitted under the co-pilot’s seat without data being available for the installation, and the battery expiry date had been exceeded. The ASR related to aircraft VH-AQA. On 25 July 2000 Mr Simpson wrote a letter to Mr Britten about the acquittal of the ASR. The letter stated, in part, the following:
The Civil Aviation Safety Authority (CASA) is in receipt of your acquittal advise [sic] for Aircraft Survey Report (ASR) 105479.
Your acquittal advise [sic] states that ‘fitment of EPIRB has now been recorded in aircraft log books’.
The authority has conducted an inspection of the log books associated to VH-AQA today. This inspection has revealed that no entry has been made in relation to the fitting of the EPIRB which is contrary to your acquittal advise [sic]. Further to this your Maintenance Controller was questioned on his knowledge relating to the fitting of EPIRB devices to VH-AQA and the other aircraft in your fleet. Mr. Gowers has advised us that he was not aware of the installations until he was advised that an ASR was issued against VH-AQA. He has further advised us that he has not received instructions relating to log book entries for the installations.
You are reminded that the Maintenance Controller is responsible for the control of all maintenance on the aircraft and it is the responsibility of the operator to ensure the Maintenance Controller functions are carried out. Any breach of this requirement is a direct breach of Civil Aviation Regulation 42ZY (2). I advise you to re visit this legislation to ensure you are familiar with the intent.
The Authority acknowledges that the EPIRB meets the legislative requirements (CAR 252A (5)) for a portable ELT however this equipment is permanently installed and as such requires approved data for the installation. In consideration of the information gathered the Authority has serious concerns about the legality of the EPIRB installations. In view of this would you please forward in writing to CASA your advise [sic] stating the circumstances surrounding the installation of the EPIRB’s and your advise [sic] on what action is being taken to rectify the situation.
(T16: 97)
90. Mr Britten agreed in his personal testimony that he had written the endorsement for the acquittal of the ASR on 30 June 2000. The following exchange then took place between Mr Britten and Mr Harvey:
MR HARVEY: I want to confirm that so there is no question about what your evidence is on this point, Mr Britten. At the time you wrote that you intended to convey to CASA that fitment of the EPIRB had been recorded, had now been recorded, not as at the time you wrote it in the aircraft log books, isn’t that right?---I did.
And that wasn’t true, was it?---I sent an instruction to Mr Gowers - - -
No, Mr Britten, that wasn’t true was it?---I now find that it was not true, no.
So do we take it that what you did was to anticipate something that you thought might happen down the track, is that right?---I anticipated something that I expected to happen the same day.
At that stage the aircraft log books did not record the fitting of the EPIRB and AQA at all?---That’s correct.
The EPIRB was fitted some time in July 1997, is that right?---Correct.
And you assumed the fitment was done properly by Airag?---Yes.
And in accordance with relevant regulatory requirements?---So far as I know. It wasn’t for me to determine whether the fitment was an appropriate one or otherwise, that was a question for the people fitting.
But you assumed, did you not, that having asked Airag to do it that they would do in in [sic] accordance with whatever regulations were required to be met?---Yes.
And what you did with your ASR response was that to tell CASA that the log books had been endorsed knowing that they hadn’t been endorsed, is that right?---I think I’ve already answered that question, Mr Harvey in as much as I anticipated that that would happen the same day.
So you say that you sent an instruction to Mr Gowers to make the required entries?---That’s correct.
You’re sure you gave that instruction on 30 June?---Whatever date I wrote the acquittal notice I sent by fax the instruction to Mr Gower on the same day.
And it’s unlikely that Mr Gowers would fail to remember it if you gave such an instruction, is that right?---I can’t speak for Mr Gowers but it would seem unlikely he would do so. He’s met other instructions when he’s been required to do so.
(transcript 4 January 2001: 84-85)
91. Mr Britten said that he was surprised to learn in the letter which he had received from Mr Simpson dated 25 July 2000 that Mr Gowers had claimed to have not received any instructions at the time relating to logbook entries for installation. He had spoken to Mr Gowers about this and he had told him that he did not recall having seen the instruction. He agreed that this established that there was some breakdown in the system of communication that he had with Mr Gowers.
92. On the basis of Mr Britten’s personal testimony, which has been set out in some detail, the Tribunal is satisfied that he was less than frank in his responses to CASA about the circumstances surrounding item 3 on the Show Cause Notice. The Tribunal is also satisfied on the basis of the evidence that has just been reviewed in regard to the fitting of the EPIRBs that Mr Gowers was not involved in any way in this installation. All that Mr Gowers did was advise Mr Britten of the requirement to have these devices available for each aircraft, pursuant to CAR 252A which came into effect in July 1997 and provide him with a copy of the relevant regulations. It was Mr Britten, however, who arranged with Airag for all of the subsequent installations of EPIRBs on the applicant’s aircraft. Mr Gowers also told the respondent’s officials that he was not aware of these EPIRB installations until he saw the ASR issued by CASA some two years after he had advised Mr Britten about the new regulations.
93. Quite detailed attention has already been given to the evidence presented in regard to the aftermath of the incident of 23 September 2000. There is clear evidence that on Mr Britten’s instructions a damaged wing was removed from one SHS aircraft (VH-N00) and replaced with a wing from another SHS aircraft (VH-AQU) and returned to service before the Maintenance Controller, Mr Gowers, had even become aware of the accident. This replacement involved significant work on two aircraft, none of which was controlled or supervised by Mr Gowers. The pilot involved in the accident, Mr Lambert, did not report the damage to the Maintenance Controller and was apparently unaware of who that person was within the applicant’s organisation (see T50: 246).
94. The Tribunal finds quite remarkable the evidence given by Mr Britten about his understanding of what the CARs required, after the “heavy landing” of VH-N00 on 23 September 2000 about identifying and recording defects on a MR or providing major defect or major damage reports to the respondent’s officials. Mr Britten appears to have taken the view that once an aircraft suffered extremely obvious damage of the kind which had occurred to the wing, unless the aircraft was to be flown before that damage was remedied, it was not to be viewed as major damage and a major damage report did not therefore have to be made, in the case of VH-N00, to either the Maintenance Controller or CASA.
95. When the incident involving VH-N00 and its associated damage was eventually brought to the attention of CASA on 3 October 2000 the situation was treated as one which required the immediate issue of an ASR grounding that aircraft. The Tribunal makes no specific findings as to whether or not the required structural inspections were carried out in situ but the fact that there should even be doubt about this matter is of sufficient concern to identify this as a serious safety issue. The way in which Mr Britten, in his capacity as Chief Pilot, handled the entire matter must give rise to serious doubts about his professional capacity and judgment.
96. The evidence also shows that Mr Britten was involved in other actions which revealed questionable judgments on his part, as well failures to comply with certain CARs as alleged in the Show Cause Notice. These actions included:
· Dealing with the endorsement by Mr Aguis on the MR of VH-N00 of a notation of excessive oil consumption without any reference to or consultation with the Maintenance Controller.
· Preparing a snag list for the attention of the maintenance organisation, rather than endorsing the MR of the aircraft, even though he was apparently informed by Mr Gowers that the items “should be reported on the maintenance release; that’s the official pilot snag sheet” (T50: 244). Mr Britten denied that any of the matters on the snag list were viewed by him as constituting defects which should have been recorded on the MR for the aircraft. Again, in light of the actual work which was performed and the fact that the aircraft itself was the one which had been involved in the incident at Gosford this statement does suggest a lack of rigour and attention on his part to the systems and procedures in place in the applicant’s organisation to ensure its safe flying operations.
CONCLUSION
97. The ultimate issue which must now be determined by the Tribunal, is whether it is satisfied about certain matters set out in s28 of the Act in regard to SHS’s application to CASA for an AOC. That AOC would, if issued, apply only to charter operations for the reasons which have already been set out.
98. After giving careful consideration to all of the evidence, as well as to the submissions made by the parties, the Tribunal is not satisfied about a number of matters in relation to the applicant’s organisation, as set out in s28(b) of the Act. First, while an AOC restricted to charter operations would not require the presence of a Maintenance Controller, nor other statutory requirements which have been identified earlier in regard to RPT operations, the evidence shows that the applicant’s organisation revolves around the central figure of Mr Britten. In the past he has performed multi-functional roles including not only that of Chief Pilot, but also de facto Maintenance Controller. He has also been the general manager and a director of the applicant company. It is perhaps the combination of these roles which has led to Mr Britten being overwhelmed by his responsibilities. But there is compelling and troubling evidence about his capacity to recognise and apply rigorous safety standards throughout the applicant’s operations. The impression that the Tribunal has gained of Mr Britten is of a person who is prepared to take short cuts where necessary to get around the regulations applicable to the applicant’s operations. The impression gained of the applicant at large is not one of an organisation with a firmly entrenched safety culture communicated to all of the personnel involved in both maintenance and flight operations. Rather, the impression is of an organisation responding as best it can after the event to various problems and crises of increasing magnitude.
99. Given these concerns the Tribunal cannot be satisfied in specific terms that the applicant has satisfied s28(b)(i), (iv) and (vi) of the Act. Under the application made by SHS the basic organisation would remain the same as that previously operating under the wider AOC framework. The same key personnel, with the exception of Mr Gowers, would presumably remain in the organisation. The organisation has also not demonstrated that it has suitable procedures and practices in place to control its operations and ensure that they can be conducted in safety.
100. For the reasons which have been given the decision under review is affirmed.
I certify that the 100 preceding paragraphs are a true copy of the reasons for the decision herein of Dr D. Chappell, Deputy President
Signed: .....................................................................................
AssociateDate/s of Hearing 4, 5, 11, 12, 18 January 2001
Date of Decision 8 February 2001
Solicitor for the Applicant Mr Timothy Somerville
Counsel for the Respondent Mr Ian Harvey
Legal Counsel for the Respondent Mr Garth Cartledge
Key Legal Topics
Areas of Law
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Administrative Law
Legal Concepts
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Judicial Review
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Statutory Construction
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Refusal to renew Air Operator’s Certificate (AOC)
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Breaches of Civil Aviation Act 1988
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Breaches of CARs and CAOs
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