Rundle and Civil Aviation Safety Authority [2002] AATA 349 (15 May 2002)

Last Updated: 20 May 2002

DECISION AND REASONS FOR DECISION [2002] AATA 349

ADMINISTRATIVE APPEALS TRIBUNAL ) No Q2001/1031

)

GENERAL ADMINISTRATIVE DIVISION )

Re PETER RUNDLE

Applicant

and CIVIL AVIATION SAFETY AUTHORITY

Respondent

DECISION

Tribunal Mr R G Kenny, Member

Date 15 May 2002

Place Brisbane

Decision The Tribunal dismisses the application in accordance with paragraph 42B(1)(a) of the Administrative Appeals Tribunal Act 1975.

.................(Sgnd).................

R G Kenny

Member

CATCHWORDS

AVIATION - check pilot approval - reviewable decision - dismissal of application as frivolous or vexatious

Administrative Appeals Tribunal Act 1975 ss 25, 42B

Civil Aviation Act 1988 ss 31, 98(5)

Civil Aviation Regulations 1988 regs 5, 217

Civil Aviation Safety Authority v Coburn (1997) 24 AAR 389

Re Foster and Civil Aviation Safety Authority [AAT No 12091, 6 August 1997]

Re Surf Air and Civil Aviation Authority (1991) 22 ALD 118

Re Williams and Australian Electoral Commission (1995) 38 ALD 366

Re Reddish and Civil Aviation Safety Authority [1999] AATA 721

Re Gowing and Civil Aviation Safety Authority (1990) 11 AAR 411

Re Robertson and Civil Aviation Safety Authority [1999] AATA 608

Saraya v Civil Aviation Safety Authority [1997] FCA 364

REASONS FOR DECISION

15 May 2002 Mr R G Kenny, Member

Background

1. In 2000 and 2001, Peter Rundle (the applicant) was engaged by Island Link Air Charter Pty Ltd as an occasional pilot and also as a check pilot. He had been approved on 4 July in that latter capacity by the Civil Aviation Safety Authority (CASA - the respondent) for a period ending on 30 June 2001. On 27 June 2001, he was again approved by CASA as "a check pilot pursuant to Civil Aviation Order Section 82.0 for and on behalf of the approved training and checking organisation of Island Link Air Charter" effective until 31 August 2001. After that date, the approval expired and a purported application for review by the applicant of that "decision" was lodged with the Administrative Appeals Tribunal (the Tribunal) on 8 November 2001. On 26 March 2002, the respondent sought to have the application dismissed under paragraph 42B(1)(a) of the Administrative Appeals Tribunal Act 1975 (the AAT Act).

Appearances

2. The hearing was conducted by conference telephone. The applicant spoke to the Tribunal. He was not represented. The respondent was represented by Mr A Anastasio.

3. The following evidence was admitted:

Exhibit 1 - the T documents (T1-T16);

Exhibit A1 - a statement of facts and contentions from the applicant; and

Exhibit R1 - a statement of facts and contentions, with attachments, from the respondent.

Respondent's case

4. Mr Anastasio submitted that the actions of CASA in not extending the applicant's check pilot approval did not constitute a decision which was reviewable by the Tribunal. However, he referred to a decision made on 7 January 2002 by Mr L Kippin, acting team leader flying operations with the North Queensland Area Office of CASA, and submitted that this was a reviewable decision. Moreover, he conceded that this decision should be the subject of the applicant's application for review. The decision was made in relation to the applicant and sent to the managing director of Island Link Air Charter Pty Ltd stating, in part:

As you have refused to allow CASA to assess Peter Rundle's suitability to be appointed as a check pilot, I have decided to refuse to approve Peter Rundle as a check pilot.

5. It was submitted that, prior to this decision, CASA had been in negotiations with Island Link Air Charter about the applicant's check pilot status in the sense that, for a further approval to be granted, it was necessary for a CASA official to undertake surveillance of the applicant in the process of checking another pilot's flying regimen. He submitted that this was a necessary pre-condition to the granting of the check pilot approval and that this had not been done by 7 January 2002 when the decision not to grant the approval was made.

6. Mr Anastasio submitted that there had been a change of ownership of Island Link Air Charter on 31 December 2001 and that the applicant's services had been dispensed with from that time onwards. He submitted that two check pilots had been engaged by the new proprietor to replace the applicant and another person who had previously had the position. Further, he submitted that these new personnel had been issued check pilot approvals by CASA. In support of these matters he referred to documents annexed to exhibit R1.

7. Mr Anastasio also submitted that any approval of check pilot status was not personal to an individual alone but only to an individual in the context of an engagement by an entity which had a current Air Operator's Certificate, such as Island Link Air Charter, where the task of the check pilot is to monitor the flying capacities of pilots in that entity. He said that it is the entity that appoints the person as a check pilot and then requests CASA to approve the appointment. He said that, in the case of a new approval, this was usually done by a CASA official conducting a test of the person. In the case of a continuing approval, it was usually done by the CASA official conducting a surveillance of the person. He said that the nexus between the approval of the person and the operator was clear from the terms of a standard grant of approval which was always to the individual in relation to the pilot training activities of such an entity. Specifically, he referred to the approvals which had been made to the applicant previously (T8). He submitted that, as a result of this, the approval could not be granted to the applicant if he were not engaged with an air operator. He referred to an e-mail exchange, dated 7 January 2002, from the new proprietor of Island Link Air Charter which declared that the applicant was no longer required to conduct training and checking duties for the operator.

8. Mr Anastasio said that surveillance was usually required prior to the end of one approval before a further approval would be granted. In relation to the approval that had been made to the applicant and which terminated on 30 June 2001, there should have been such a process. However, as this was not done, he said that CASA had granted a short term approval until 31 August 2001 with the applicant to undergo surveillance in that period so that a further approval might then be granted. However, again, the surveillance procedure had not been carried out. He said that an arranged surveillance of the applicant and another check pilot with Island Link Air Charter, in June 2001, had fallen through and that CASA had requested the company to make the applicant available at a later time. This was not done and no decision was made about the applicant's approval until 7 January 2002. In the meantime, the approval that had been extended to 31 August 2001 had expired.

9. Mr Anastasio submitted that, if the Applicant were successful, the Tribunal would not be in a position where it would be able to approve the applicant as a check pilot but, rather, would be in the position where it would have to refer the matter back to CASA so that CASA could undertake the appropriate testing measures to determine whether or not an approval would be given. However, he also submitted that, because the applicant as at the date of the decision was not engaged by any licensed operator, no approval could be given. In that sense, any finding in favour of the applicant would have no practical benefit to him or anyone. Rather, it would involve the Tribunal in a pointless exercise with no possibility of a beneficial outcome. He said that the approach of CASA was not meant to and did not cast any doubt on the capacities of the applicant as a pilot. He said that the solution lay with the applicant obtaining a new engagement with a licensed operator as a pilot and for an application to be made through the particular operator who engaged him to seek his approval of check pilot status from CASA.

Applicant's case

10. The applicant said that he was asking the Tribunal to review the failure of CASA to renew the approval when it expired on 31 August 2001 and to make a decision extending that approval beyond that date. He said that, in the event that this were to be done, he would then be in the position of being able to approach the new owners of Island Link Air Charter or any other operator and to make himself available as a check pilot.

11. The applicant said that he well understood the procedures applied by CASA. He was a qualified flight instructor and was able to endorse individuals to fly certain types of aircraft. He said that this was more significant than the role of a check pilot whose involvement was with pilots who were already licensed. He said that he had held no other check pilot approvals but had been the chief pilot of his own operation for some years until he worked for CASA until early 2000.

12. The applicant accepted as correct that Island Link Air Charter had changed ownership on 31 December 2001 and that he had not been engaged by the new owners in any capacity. He also accepted the correctness of the respondent's submission that a check pilot approval can only be granted in conjunction with the licensed operator by whom the check pilot has been engaged to provide services.

13. The applicant submitted that the surveillance of him by CASA official had been scheduled for June 2001 but had been cancelled by the CASA official. He said that there had been many flights when the opportunity could have been taken for the surveillance procedure to have been carried out.

Consideration

14. Section 25 of the AAT Act provides that the Tribunal may review certain decisions and it reads:

25 Tribunal may review certain decisions

(1) An enactment may provide that applications may be made to the Tribunal:

(a) for review of decisions made in the exercise of powers conferred by that enactment; or

(b) for the review of decisions made in the exercise of powers conferred, or that may be conferred, by another enactment having effect under that enactment.

15. In this case, the Civil Aviation Act 1988 (the CA Act) is the relevant enactment and sub-section 31 thereof reads:

31 Review of decisions

(1) In this section:

decision has the same meaning as in the Administrative Appeals Tribunal Act 1975 .

reviewable decision means:

(a) a refusal to grant or issue, or a cancellation, suspension or variation of, a certificate, permission, permit or licence granted or issued under this Act or the regulations; or

(b) the imposition or variation of a condition, or the cancellation, suspension or variation of an authorisation, contained in such a certificate, permission, permit or licence.

(2) Application may be made to the Administrative Appeals Tribunal for review of a reviewable decision.

16. CASA is a body corporate established under section 8 of the CA Act. Its functions are set out in section 9 of the CA Act and these relate to the conduct of safety regulation, in accordance with the CA Act and the Civil Aviation Regulations 1988 (the regulations), of civil air operations in Australia and that includes the issuing of relevant certificates, licences, registrations and permits. Section 98 of the CA Act enables regulations to be made and regulation 217 requires an operator to provide a training and checking organisation so as to maintain aircrew competency. That regulation also requires that the tests and checks provided for by the organisation shall be subject to the approval of CASA.

17. Under sub-section 98(5) of the CA Act, CASA may issue Civil Aviation Orders (Orders). That provision reads:

Where the regulations provide for a direction, instruction, notification, permission, approval or authority to be given or issued in the form of a Civil Aviation Order, an Order so given or issued after the commencement of this section is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.

18. Regulation 5 refers to the making of Orders by CASA and reads:

5 Civil Aviation Orders

(1) Wherever CASA is empowered or required under these regulations to issue any direction, instruction or notification or to give any permission, approval or authority, CASA may, unless the contrary intention appears in the regulation conferring the power or function or imposing the obligation or duty, issue the direction or notification or give the permission, approval or authority in Civil Aviation Orders or otherwise in writing.

(2) Expressions used in Civil Aviation Orders shall, unless the contrary intention appears, have the same meanings as in these regulations.

(3) If a direction, instruction or notification relating to a person is issued in Civil Aviation Orders, the direction, instruction or notification, as the case may be, is taken to have been served on the person on the date on which the making of the Order is notified in the Gazette.

19. Part 82 of the Orders made by CASA relate to Conditions on Air Operators' Certificates. Sub-section 82.1(3.3) of the Orders provides that a person must not be nominated to a supervisory position within the training and checking organisation without the approval of CASA. Clause 1.1 of Appendix 2 of section 82.1 provides that a training and checking organisation must be wholly contained within the operator's organisational structure. Clause 2.3 of Appendix 2 of section 82.1 provides that each operator must appoint sufficient personnel to ensure that all training programs, examinations and proficiency checks can be undertaken to the satisfaction of CASA. Sub-section 82.3 (2.2) of the Orders provides that each operator must establish and appoint a person to the supervisory position of check pilot within the organisation. Sub-section 82.3 (2.4) of the Orders provides that each operator must ensure that a person occupying a supervisory position within the training and checking organisation is approved by CASA.

20. That legislative framework confirms the correctness of the respondent's contention that the process of granting approval of check pilot status is one to be conducted by CASA. They also confirm that the process is operator specific in the sense that the status is granted to a particular person in the context of that person's appointment to the services of a particular operator. Indeed, the applicant accepted that this was the case and in evidence was a copy of the instrument, dated 27 June 2001, which approved the applicant as a check pilot for the period from 1 July 2001 until 31 August 2001. In part, it reads:

The functions are limited to C402, C404, C421, Be55 and Be58 aircraft in relation to persons whom Peter Phillip Rundle (ARN 036287) conducts such training and checking on behalf of Island Link Air Charter (ARN 431840).

21. Any refusal by CASA to grant such an approval would constitute a reviewable decision, as that term is used in sub-section 31(1) of the CA Act, and would be reviewable by the Tribunal. The decision of 7 January 2002 meets that description. A copy of that decision was in evidence (attachment to exhibit R 1) and it advised the manager Island Link Air Charter Pty Ltd that CASA refused to approve the appointment of the applicant as check pilot. However, no such decision was made prior to that date. On 31 August 2001, no decision was made in relation to approval or otherwise. On that date, the previous approval expired and, in the words of sub-section 31(1) of the CA Act, there was no refusal at that time to grant, issue, cancel, suspend or vary a certificate, permission, permit or licence. In that sense, there is no decision for the Tribunal to review at that stage: see Saraya v Civil Aviation Safety Authority [1997] FCA 364, Re Foster and Civil Aviation Safety Authority [aAT No 12091, 6 August 1997], Civil Aviation Safety Authority v Coburn (1997) 24 AAR 389 and Re Robertson and Civil Aviation Safety Authority [1999] AATA 608. Without more, the application is liable to be dismissed for want of jurisdiction. However, the respondent has conceded that the reviewable decision of 7 January 2002 should be considered by the Tribunal. As noted above, the respondent has also submitted that this be dismissed under section 42B of the AAT Act.

22. In the context of section 42B of the AAT Act, the term frivolous has been held to mean "obviously unsustainable": see Re Reddish and Civil Aviation Safety Authority [1999] AATA 721. There, the Tribunal referred to Re Gowing and Civil Aviation Safety Authority (1990) 11 AAR 411, Re Surf Air and Civil Aviation Authority (1991) 22 ALD 118 and Re Williams and Australian Electoral Commission (1995) 38 ALD 366 and said:

The cases of Gowing, Surf Air and Williams are all authority for the proposition that an application to this Tribunal may be dismissed on the ground that it is frivolous if the Tribunal is unable to make a decision that would be of any practical benefit to the applicant.

23. In this case, the general manager of Inland Pacific Air, by letter dated 10 January 2002, notified CASA of a change of ownership of Island Link Air Charter (attachment 1 to exhibit R1). That person also requested, by letter dated 10 January 2002, that two pilots, other than the applicant, be approved by CASA as check pilots for Island Link Air Charter (attachment 3 to exhibit R1). In response to a request from CASA about the applicant, Inland Pacific Air notified CASA by e-mail, dated 7 February 2002, that the applicant was no longer required for training and checking duties with Island Link Air Charter (attachment 6 to exhibit R1). None of these matters is disputed by the applicant who accepted that he had ceased his involvement with Island Link Air Charter from the end of 2001. He is no longer engaged as a pilot with Island Link Air Charter or with any other operator. In that situation, there can be no practical advantage in a decision approving the applicant as a check pilot. Indeed, that approval can not be given unless he is nominated as an operator for that purpose. That being so, the Tribunal dismisses the application in accordance with the terms of paragraph 42B(1)(a) of the AAT Act.

Decision

24. The Tribunal dismisses the application in accordance with paragraph 42B(1)(a) of the Administrative Appeals Tribunal Act 1975.

I certify that the 24 preceding paragraphs are a true copy of the reasons for the decision herein of Mr R G Kenny, Member

Signed: .....................................................................................

Associate

Date of Decision 15 May 2002

Date of Hearing 10 May 2002

Applicant Appeared in Person

Solicitor for Respondent Mr A Anastasi