Australia: Serious and imminent risk to air safety considered

Transport and Logistics Bulletin (Australia)
Last Updated: 21 June 2012
Article by Andrew Tulloch and Olivia Nicola

Serious and imminent risk to air safety considered

In the recent case of Civil Aviation Safety Authority v Alligator Airways Pty Ltd (No 3) [2012] FCA 601, Justice Murphy of the Federal Court of Australia (Court) grounded Western Australia's Alligator Airways (Alligator) for one month following an application by the Civil Aviation Safety Authority (CASA) for a prohibition order under s 30DE(2) of the Civil Aviation Act 1988 (Cth) (Act).

Ultimately, this case is an important one, because it is a clear pronouncement of the Court's role in relation to the variation, cancellation, or suspension of a civil aviation authorisation following reforms to the Act in 2003. The Court's risk-based application of the current principles demonstrates its unwavering regard for public air navigation safety in Australia. It also provides a useful demonstration of the application of the Civil Aviation Safety Authority v Boatman [2006] FCA 460 (Boatman) decision.

The applicant, CASA, has the statutory function as set out in the Act of conducting safety regulation of civil air operations in Australia. The respondent, Alligator, operates 16 light aircraft for sightseeing trips and charter during the tourist season, through its small general aviation business based at Kununurra in Western Australia.

Division 3A of the Act, which provides the structure relied on by CASA for its application, was inserted into the legislation by the Civil Aviation Amendment Act 2003 (Cth). Until 2003, the Court had no involvement in the suspension, cancellation or variation of an authorisation. CASA held sole responsibility for these decisions. These amendments were inserted to address the perception in aviation circles that CASA is somehow 'judge, jury and executioner'.

The case arose when the applicant sought a prohibition order to ground the Kununurra-based airline. The order was sought to prevent Alligator from doing anything that it would otherwise be authorised to do under its civil aviation authorisations and to provide CASA with enough time to investigate the circumstances giving rise to the airway's conduct.

CASA pointed to a series of key events over a period between 2009 to April 2012 to support its view that there was a systemic problem with Alligator. Of concern was the maintenance and airworthiness of the aircraft, as well as a catalogue of errors by the respondent's pilots.

Alligator claimed certain mechanical failures were 'one off' or unexpected. Others were ascribed to the realm of 'unforeseeable pilot error', for which it claimed it was not responsible. It also claimed that those pilots had since been made redundant and as such there was no imminent risk to safety.

Alligator also argued that while its safety and checking procedures were deficient in the past, they had significantly improved since July 2011.

Under the current legislative framework, the Court must issue a prohibition order if it is satisfied that, under s 30DE(2) of the Act:

There are reasonable grounds to believe that the holder of a civil aviation authorisation has engaged in, or likely to engage in conduct that constitutes, contributes to or results in a serious and imminent risk to air safety.

Justice Murphy noted that in consideration of this provision, the Court is required by s 30DE(3) to have regard to ss 3A and 9A(1). These sections provide:

3A The main object of this Act is to establish a regulatory framework for maintaining, enhancing and promoting the safety of civil aviation, with particular emphasis on preventing aviation accidents and incidents.

9A(1) In exercising its powers and performing its functions, CASA must regard the safety of air navigation as the most important consideration.

In answering the central question in the proceeding, Justice Murphy agreed with the approach taken in Boatman. In this case, Madgwick J considered that there were three steps involved in deciding the case:

  • A consideration of the meaning of 'reasonable grounds'
  • A consideration of the meaning of 'serious and imminent risk to air safety'
  • The application of these tests to the conduct of the respondent.

In elucidating the requirement to establish 'reasonable grounds', Justice Murphy referred to the case of Loughnan v Magistrates Court of Victoria [1993] 1VR 685, citing the judgment at 692:

...the court is not required to be satisfied, even to some prima facie stage, that the suspect has committed the offence; the court need be satisfied only that there are reasonable grounds to believe that the suspect has committed the offence.

Accordingly, it is possible for the Court to find that there are 'reasonable grounds to believe that there is a serious and imminent risk to air safety' without finding that the risk is in fact present.

The logical corollary of His Honour's reasoning was aptly put by Madgwick J in Boatman, stating that:

If the judge is moved by all evidence to conclude that there was in fact such a risk, it will follow that there were reasonable grounds for that belief. If not, the judge must consider whether, nevertheless, there are, in the judge's opinion, reasonable grounds for so believing.

While the Court seems to support a low threshold test of the 'reasonable grounds' requirement, it is consistent with the risk-based approach envisaged by the establishment of a regulatory regime under Part 3A of the Act.

Importantly, Justice Murphy noted that the required standard of evidence is not akin to that which would generally be admissible at trial. Justice Murphy noted that:

...while procedural fairness must be afforded, I may have regard to evidence that is inexact or indefinite in providing a foundation for the existence of 'reasonable grounds to believe' the factual matters upon which my satisfaction rests.

The Court considered that hearsay evidence might be acted upon. Moreover, it noted that it would not make ultimate findings as to the credit of any witness 'as if at final trial'. In this light, His Honour did not reject any hearsay testimony or secondary reports presented by both CASA and Alligator, noting that the primary aim of the proceedings was to protect the public.

In consideration of the 'serious and imminent risk' element, His Honour cited the test put by Madgwick J in Boatman at 55:

So far as the present case goes, the test is, in my opinion, given appropriate meaning by asking: was there a really significant prospect that such risks of serious considerable harm as actually existed, in relation to the conduct complained of, would materialise?

His Honour proposed a slightly different test, stating that a 'significant' risk is sufficient. However, His Honour noted that the decision to grant the prohibition order did not turn on slight semantics.

The thrust of Alligator's argument was not that the incident did not constitute a serious risk to air safety, but rather that its conduct did not constitute, contribute to or result in the risk.

Justice Murphy was critical of Alligator's claim that certain errors were 'one off' or attributed to pilot error. His Honour stated that Alligator is responsible for the performance of its own employees, and accountable for their failures and omissions. To emphasise this view, his Honour deferred to s 97A(2) of the Act, which provides that any failure by an employee is considered conduct by the body corporate, unless it can establish that it took reasonable precautions and exercised due diligence to avoid the error.

The Court concluded that, viewed in the context of other incidents, there were reasonable grounds to believe that the problems with maintenance and airworthiness of Alligator's aircraft were not able to be 'hand balled' off to three former employees. Rather, His Honour concluded that the failures of the employees were indicative of Alligator's failure to properly train and supervise its pilots and maintenance employees and to ensure that its aircrafts were properly maintained and airworthy.

Finally, Justice Murphy rejected Alligator's contention that the risk to air safety was not serious because the pilots involved were no longer employed by it. Whilst His Honour noted that this was relevant, he held that when considered against the backdrop of other key incidents, there were reasonable grounds to believe that the incidence of serious errors by Alligator's pilots (including errors that Alligator alleged were not 'everyday risks') were indicative of Alligator's organisational and systemic failures, and as such the risk remained current.

© DLA Piper

This publication is intended as a general overview and discussion of the subjects dealt with. It is not intended to be, and should not used as, a substitute for taking legal advice in any specific situation. DLA Piper Australia will accept no responsibility for any actions taken or not taken on the basis of this publication.

DLA Piper Australia is part of DLA Piper, a global law firm, operating through various separate and distinct legal entities. For further information, please refer to

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