Australia: Cancellation of pilot licences - courts reluctant to overturn decisions of Civil Aviation Safety Authority

In brief - Maintaining safety of air navigation is paramount

Two recent decisions in the Federal Court of Australia have further clarified the principles governing the cancellation of pilot licences. Safety of air navigation remains the most important consideration for the Civil Aviation Safety Authority (CASA) and courts are reluctant to interfere in its decisions.

CASA cancels pilot licence following complaint

In Anderson v Civil Aviation Safety Authority [2013] FCA 1367, Justice Jagot was asked to resolve three questions of law:

  • Whether the Administrative Appeals Tribunal ("the Tribunal") was empowered to affirm a decision of CASA made under regulation 269(1)(a) of the Civil Aviation Regulations 1988 and whether CASA was empowered to make a decision under that regulation to cancel the aircrew licences held by the appellant John Anderson in circumstances where he had not been convicted by a court of a breach of either the Civil Aviation Act 1988 or the Civil Aviation Regulations 1988.
  • Whether the Tribunal erred in law in taking into account an irrelevant consideration, i.e. that the appellant had provided untruthful information to the Department of Veterans' Affairs.
  • Whether the Tribunal erred in law in failing to take into account a relevant consideration, namely the hardship that the appellant would endure in the event of cancellation of his pilot licence.

Pilot charged with various offences and CASA cancels pilot licence

CASA's decision arose from a complaint made about a flight piloted by Mr Anderson on 30 March 2007 whilst ferrying a party of scuba divers between the Abrolhos Islands and Geraldton, Western Australia in a 40 year old Sikorsky helicopter.

Mr Anderson was charged and various offences were found proved, but convictions were not recorded and instead Mr Anderson was subject to good behaviour bonds.

CASA's authority under the legislation to cancel pilot licences

Regulation 269(1) provided:

Subject to this regulation, CASA may... vary, suspend or cancel the authorisation if CASA is satisfied that one or more of the following grounds exists, namely:
  1. that the holder of the authorisation has contravened, a provision of the Act or these Regulations...
  2. that the holder of the authorisation fails to satisfy, or continue to satisfy, any requirement prescribed by, or specified under, these Regulations in relation to the obtaining or holding of such an authorisation;
  3. that the holder of the authorisation has failed in his or her duty with respect to any matter affecting the safe navigation or operation of an aircraft;
  4. that the holder of an authorisation is not a fit and proper person to have the responsibilities and exercise and perform the functions and duties of a holder of such an authorisation;
  5. that the holder of the authorisation has contravened a direction or instruction with respect to a matter affecting the safe navigation and operation of an aircraft, being a direction or instruction that is contained in Civil Aviation Orders.

Regulation 269(1A) further provides:

CASA must not cancel an authorisation under subregulation (1) because of a contravention mentioned in paragraph (1)(a) unless:
  1. the holder of the authorisation has been convicted by a court of an offence against a provision of the Act or these Regulations... in respect of the contravention; or
  2. the person was charged before a court with an offence against a provision of the Act or these Regulations... in respect of the contravention and was found by the court to have committed the offence, but the court did not proceed to convict the person of the offence.

Court finds that Tribunal was empowered to cancel licence

Although Mr Anderson had been charged with breaching Section 20A of the Civil Aviation Act, reckless operation of an aircraft, he was acquitted of that charge.

In his decision Justice Jagot noted that the grounds and regulation 269(1) are not mutually exclusive and overlap to a significant extent. Merely because Anderson was acquitted of a breach in criminal proceedings did not preclude the Tribunal from considering whether Anderson was a fit and proper person within the meaning of Regulation 269(1)(d). He concluded that the Tribunal was empowered to do what it did.

Tribunal entitled to take supply of untruthful information into account

As to the issue of the supply of untruthful information provided to the Department of Veterans' Affairs, Anderson had apparently advised the Department that he ceased full time employment in December 2005 and was then being paid nothing, whereas in fact he was working in New Guinea and being paid for work. The Tribunal inferred he provided false information to the department for his personal gain.

Justice Jagot considered this to be information which the Tribunal was entitled to take into account in considering his fitness to hold a licence, it being considered that there was a reason for a lack of confidence that Anderson would disclose all relevant information, especially where he perceived it might be contrary to his interests.

Hardship to licence holder not a relevant consideration

Finally Justice Jagot concluded that hardship to the licence holder was an irrelevant consideration which the Tribunal was precluded from taking into account in circumstances where CASA was bound to regard the safety of air navigation as the most important consideration.

For these reasons the applicant's appeal was dismissed with costs.

Tribunal affirms CASA's decision to cancel pilot licence after helicopter crash

The second Federal Court decision, in the case Sullivan v Civil Aviation Safety Authority (2013) FCA 1362, involved an appeal against an Administrative Appeals Tribunal decision affirming a decision to cancel the licence of Mark Sullivan, following an investigation into a crash on 30 March 2010 of a helicopter of which Mr Sullivan was the pilot, carrying two passengers from Katherine to a remote community in the Northern Territory, Numbulwar.

Two cargo pods had been attached to the skids on the helicopter and the aircraft had a takeoff weight in excess of the manufacturer's maximum takeoff weight. The helicopter lost lift following a strong gust of wind, clipped a fence post and turned over. The pilot Mr Sullivan was charged with three criminal offences and received fines and a suspended jail sentence.

Appeal against findings of Administrative Appeals Tribunal

It was contended for Mr Sullivan that the Tribunal had made a series of adverse findings against him in respect of serious matters and failed to apply the requirements specified in Briginshaw v Briginshaw (1938) 60 CLR 336 at 361-362, which stated:

Except upon criminal issues to be proved by the prosecution, it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is obtained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding, are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matter "reasonable satisfaction" should not be produced by inexact proofs, indefinite testimony, or indirect inferences.

Justice Jagot stated:

Provided the material findings of fact and the ultimate decision are reasonably open and based on some logically probative material, the process of reasoning cannot properly be impugned on the basis that the decision maker did not apply, or say in some way that it applied, Briginshaw.

Federal Court rejects applicant's arguments and upholds Tribunal's decision

Mr Sullivan's case was that the Tribunal's decision may be impugned not because the conclusion was not reasonably open, nor that there were not material factual findings based on some logically probative material, but as a result of the Tribunal not having reasoned by reference to Briginshaw. Justice Jagot did not consider that was required.

He also rejected a contention that the Tribunal was bound to take into account the 12 month period of exclusion and guilty pleas in determining whether Mr Sullivan was a fit and proper person. He considered it was more likely and should be inferred that the Tribunal was well aware of these facts when it weighed the material before it and came to the conclusion not to attribute weight to that material.

Finally, there was criticism of the Tribunal by the applicant in failing to question the evidence of one witness as to whether her recollection of events was faulty. The judge found that there was no denial of procedural fairness by the way in which the Tribunal dealt with this witness' evidence. The Tribunal gave adequate reasons for rejection of that evidence.

Courts reluctant to interfere in decision making powers of CASA

These two decisions are further examples of the reluctance of the courts to overturn or interfere in the decision making powers of CASA in relation to cancellation of pilot licences in circumstances where maintaining the safety of air navigation is paramount.

Andrew Tulloch
Transport and logistics
CBP Lawyers

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