White and Civil Aviation Safety Authority

[2010] AATA 604

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2010] AATA 604

ADMINISTRATIVE APPEALS TRIBUNAL                 )

)No: 2010/0396

General Administrative Division           )

Re: JOHN WHITE

Applicant

And: CIVIL AVIATION SAFETY AUTHORITY

Respondent

DECISION

TRIBUNAL:             Senior Member Bernard J McCabe

DATE:                      13 August 2010

PLACE:                   Brisbane

DECISION:              The Tribunal affirms the decision under review.

........................[Sgd]........................................

Senior Member

CATCHWORDS

CIVIL AVIATION – application for renewal of Air Operator’s Certificate rejected – helicopter charter company without a chief pilot – whether the issue of an Air Operator’s Certificate can be suspended while applicant complies – company was not operating at the time of the application – decision maker cannot be satisfied that the enumerated criteria are met – decision affirmed.

Administrative Appeals Tribunal Act 1975 (Cth), s 37

Civil Aviation Act 1988 (Cth), ss 28, 28BC

REASONS FOR DECISION

13 August 2010  Senior Member Bernard J McCabe        

1. Can the Civil Aviation Safety Authority (“CASA”) issue an Air Operator’s Certificate (“AOC”) to an organisation if CASA is not satisfied as to the matters set out in s 28 of the Civil Aviation Act 1988 (Cth) (“the Act”)? The applicant, Mr John White, acknowledges that the helicopter charter company which he runs does not have a chief pilot. That means he is presently unable to satisfy CASA that he meets the criteria in the Act. But he says the company’s AOC’s should be renewed on the basis that the AOC would be suspended for a period of time while he works to comply with CASA’s requirements. Is that possible?

2. Unfortunately for the applicant, I do not think the legislation permits CASA (or the Tribunal, standing in CASA’s shoes) to do as he asks. It follows his application must fail. I will explain my reasons below.

The facts

1. John White is a director of Heli-Co Australia Pty Ltd, a company that owns a helicopter charter business. He became a director and took an interest in the company in or around August 2007. At that point, the company held an AOC. The chief pilot left the company shortly after. Mr White notified CASA of the change in ownership and the departure of the chief pilot. He also assured CASA that the company was not conducting any flying operations. CASA varied the AOC in light of this information but did not make an issue out of the absence of the chief pilot on the basis that the company had effectively suspended its operations. The applicant said in his evidence at the hearing that he contacted a CASA officer and had several conversations about the future of the business. He says was led to believe there would be no problem retaining the AOC while the company was not flying.  

2. A copy of the original AOC is found at p 8 of the documents provided under s 37 of the Administrative Appeals Tribunal Act 1975. That AOC was issued on 10 January 2007. It was issued on the basis that it would remain in force until 31 January 2010. Mr White said he assumed from his discussions with CASA that there would be no difficulty obtaining a renewal of the AOC without a chief pilot provided the company was not doing any flying. He said he was in negotiations to sell the business in any event.

3. The applicant lodged an application to renew the AOC on 5 January 2010. He acknowledged the company had not yet secured the services of a chief pilot. CASA rejected the application on 12 January 2010.

The legislation

1. Section 28 of the Act deals with applications for an AOC. It provides that “CASA must issue the AOC if, and only if,” CASA is satisfied as to a range of matters. Amongst other things, CASA must be satisfied about aspects of the applicant’s organisation including the appointment of “key personnel” to important positions in the company. Section 28(3) defines “key personnel” to include:

   (a)  the chief executive officer;

   (b)  the head of the flying operations part of the organisation;

   (c)  the head of the aircraft airworthiness and maintenance control part (if any) of the organisation;

   (d)  the head of the training and checking part (if any) of the organisation;

   (e)  any other position prescribed by the regulations

2. The absence of a chief pilot at Heli-Co means CASA cannot be satisfied the applicant’s organisation includes the key personnel contemplated under the Act. On that basis, CASA says it is not permitted to issue the AOC.

3. The applicant accepts Heli-Co does not comply with CASA’s requirements, but he says nothing has really changed compared to the state of affairs that existed before the last AOC expired. If that AOC was able to remain in place while the company did not fly, why can a fresh AOC not be issued on the same basis? He points out that s 28BC contemplates CASA suspending an AOC. He says that means CASA can issue an AOC that it immediately suspends.

4. The meaning of the legislation is reasonably clear. If CASA is satisfied as to the enumerated matters, it must issue an AOC. But I think the drafting of the legislation suggests the reverse is also true: if CASA is not satisfied that an organisation meets the criteria, CASA must not issue an AOC.

5. It makes no difference whether that application is an original application for an AOC or a renewal application. Mr White pointed out that “renewed” AOCs have the same or a similar number. That does not matter. The Act does not distinguish between original and renewal applications for present purposes. CASA pointed out in its submissions that a “renewed AOC” is in reality a fresh AOC. That means the criteria must be satisfied at the time of the application.

6. I accept applications for a ‘renewed’ AOC may proceed more smoothly (and cost less) because the application can be assessed against CASA’s existing knowledge of the applicant. I can therefore understand why the applicant prefers to have a seamless renewal process. But CASA points out the company’s operations have been suspended for so long it would now be necessary to conduct a more extensive examination of its structure, personnel, equipment and processes in any event to ensure the operator can satisfy the statutory criteria.

7. The applicant says the value of the business will be significantly diminished if the company does not have an AOC – even a suspended one. Not unreasonably, Mr White asks: what is the harm in issuing a new AOC that is suspended? Unfortunately for the applicant, that is the wrong question. The legislation is clear. CASA’s hands – and those of the Tribunal – are tied.

Conclusion

1. The decision under review is affirmed.

I certify that the 13 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member Bernard J McCabe.

Signed: .....................[Sgd]......................................................
  Patrick MacDonald

Date of Hearing  19 July 2010 
Date of Decision  13 August 2010
Applicant  Self-represented

Solicitor for the Respondent  Ms C Swain