Parkes and Civil Aviation Safety Authority and Anor [2009] AATA 789 (1 October 2009)

Last Updated: 14 October 2009

Administrative Appeals Tribunal

ORDER AND REASONS FOR ORDER [2009] AATA 789

ADMINISTRATIVE APPEALS TRIBUNAL )

) No 2009/4432

GENERAL ADMINISTRATIVE DIVISION		)
	Re		ANTHONY PARKES

Applicant

And

CIVIL AVIATION SAFETY AUTHORITY

Respondent
And REATON COURT PTY LTD
Third Party

ORDER

Tribunal

Senior Member Bernard J McCabe

Date 1 October 2009

Place Brisbane

Decision

The Tribunal refuses to order the implementation of the decision under review be stayed pursuant to s 41(2) of the Administrative Appeals Tribunal Act 1975.

......................[Sgd]........................
Senior Member

CATCHWORDS

PRACTICE AND PROCEDURE – Stay – Cancellation of chief pilot approval – Whether the operation and implementation of a decision cancelling a chief pilot approval should be stayed – Stay not desirable having regard to the interests of the parties – Stay refused

Administrative Appeals Tribunal Act 1975 (Cth) s 41(2)

REASONS FOR ORDER

1 October 2009

Senior Member Bernard J McCabe

1. Mr Anthony Parkes, the applicant, is the chief pilot of Balloon Down Under, a ballooning business conducted by Reaton Court Pty Ltd. The Civil Aviation Safety Authority (“CASA”) has decided to cancel the applicant’s chief pilot’s approval. That reviewable decision was communicated to the applicant in a letter dated
   3 September 2009. The applicant has asked that the decision be stayed pursuant to s 41(2) of the Administrative Appeals Tribunal Act 1975 (“the AAT Act”).

THE FACTUAL BACKGROUND

2. A stay hearing was conducted on 30 September 2009. I learned that Balloon Down Under conducts charter balloon flights using three balloons from sites around the Gold Coast. One of the balloons carries up to 16 passengers. A second balloon carries 10 passengers. A third carries five or fewer passengers, although I was told that balloon was not regularly used. Only one balloon is used at a time. The applicant conducts all of the flights himself. In an average month, he says he makes 18-20 flights. His business is patronised by tourists, and he obtains bookings through a website and other promotional activities directed to hotels and tour operators on the Gold Coast.
3. The applicant has been the chief pilot of the organisation since 2007. He conducts the ballooning business with his wife through Reaton Court Pty Ltd. He gave evidence about the company’s financial position at the hearing. The company is under financial pressure. It has extensive obligations, including an overdraft. It has no cash reserves. Its position has been weakened by recent weather conditions that prevented it from conducting flying operations. When asked how long the business would stay in business if it were prevented from conducting flights because of the absence of a chief pilot, the applicant said it would shut down virtually overnight. He said the business would certainly not last the two or three months until a hearing, and it would be impossible to recover once it ceased trading. He explained this was because the banks would move in and because reputation of the business would be destroyed. He added it would be difficult to find an appropriately qualified chief pilot in a reasonable time-frame. The business could not afford to pay such a person in any event.
4. The parties took me through the allegations that were made against the applicant in the “show cause” notice that prompted CASA’s cancellation decision. CASA said they are serious matters which, taken together, point to the applicant being unfit to be a chief pilot of this admittedly small organisation. The applicant conceded there have been problems in the past but disputes a number of the allegations. In any event, he said cancellation is not the appropriate response.
5. A good deal of the discussion in the hearing focused on three incidents. CASA said those incidents raise serious safety concerns that motivated it to argue against the grant of a stay under s 41(2) of the AAT Act. Two of the incidents occurred in February 2009. One of them, which took place as a balloon was landing in a paddock, is less serious than the other. The more serious incident occurred when a balloon with passengers collided with a sign above the fast-moving Pacific motorway on the northern Gold Coast as the balloon descended to a landing site adjacent to the motorway. I was provided with pictures of the sign and the general area and statements of witnesses. Suffice to say, there may have been disastrous results if the balloon had come to grief on the busy motorway.
6. The third incident occurred in August this year, after the show cause notice but before the reviewable decision. A balloon was operating from a site in Robina. As it ascended, it came close to cranes above the Robina hospital site. I was provided with still pictures of the incident that were taken by a witness. I also read a statement provided by one of the crane operators who estimated the balloon came as close as five metres from the boom, which was located high above the building site. He said he was close enough to yell abuse at the balloon pilot. The applicant said the balloon was not that close. The pictures and the witness statements are hair-raising, although I acknowledge that pictures in particular can be misleading depending on their perspective. I questioned the applicant and his advocate, Mr Carter, about the wisdom of a decision to operate a balloon from landing sites close to highways and built-up areas. Mr Carter said the rules allowed the practice.
7. The applicant offered to abide by certain conditions if a stay were to be granted, in order to allay any concerns about its operations pending the outcome of the hearing. In particular, he proposed engaging an experienced chief pilot of another balloon company in Victoria who would make regular visits and prepare reports on the operation of the applicant’s business to ensure the obligations of chief pilot were being discharged properly. CASA opposed a stay on that basis but its advocate, Mr Rule, assisted me by offering constructive comments on how such an arrangement might work if the Tribunal were minded to adopt it.

THE LEGISLATION

8. Section 41(2) of the AAT Act permits the Tribunal to stay the operation or implementation of a decision:
   • for the purpose of securing the effectiveness of the hearing and determination of the application for review; and
   • where the Tribunal forms the view it is desirable to make an order after taking into account the interests of any persons who may be affected by the review.

IS THE STAY ORDER SOUGHT FOR AN APPROPRIATE PURPOSE?

9. The applicant’s financial circumstances are such that his business will probably fail before the review can be completed if the decision is not stayed. The review will, in effect, become pointless in the absence of a stay. I accept it is unlikely the applicant will be able to obtain a replacement chief pilot in the interim that would permit the company to continue its operations in accordance with its Air Operator Certificate (“AOC”) and the Civil Aviation Act 1988. It follows I am satisfied the first limb of the test in s 41(2) of the AAT Act has been satisfied.

IS IT DESIRABLE TO STAY THE DECISION HAVING REGARD TO THE INTERESTS OF THE PARTIES WHO WILL BE AFFECTED BY THE REVIEW?

10. The interests of the applicant and his wife – and perhaps his financiers – will be severely damaged in the short term if I do not make a stay order. He is likely to lose his business and perhaps his other assets. That unhappy result might come to pass even if I order the stay, of course, in the event his application for review is unsuccessful.
11. The applicant’s prospects of success are also relevant to the discussion. It is not appropriate to undertake a detailed assessment of the strength of his case given that all of the evidence is not in. Mr Carter said the applicant will vigorously contest the decision. Mr Carter pointed to a number of matters in dispute and foreshadowed obtaining expert evidence. I am not prepared to say the case has no merit, which counts in his favour.
12. I must also consider the interest of the public in air safety. Indeed, public safety in a case like this is the most important consideration. I acknowledge that CASA has not taken the step of suspending the applicant’s permit or cancelling the AOC on the basis that there is an imminent threat to air safety. But CASA says there are still significant concerns, and points to the incidents in February this year and the more recent incident in August over Robina to support its case.
13. The applicant said concerns arising out of the three incidents say more about the applicant’s capacity as a pilot. They did not reflect on his competence in the role of a chief pilot. CASA has not taken regulatory action against the applicant in his capacity as a pilot at this point. Mr Carter said it was necessary to distinguish between the roles of pilot and chief pilot.
14. I acknowledge the two roles are separate. Even so, there must be a question over one’s capacity to act as chief pilot if one’s performance as a pilot is called into question. A chief pilot is called upon to play a leadership role which is harder to fulfil if one does not command respect as a pilot. That is less of an issue here where the applicant is effectively the only pilot in his operation. But a chief pilot is also called upon to exercise judgement on operational matters – like the selection (or overview of the selection) of appropriate landing sites. The incidents I have already discussed call that judgement into question. I would not go so far as to say that balloons should not be operated from sites in built-up areas or next to busy motorways. I would only address that question with the benefit of expert assistance – in other words, with the benefit of people who have the expertise to make those judgements. Given the question marks that have arisen over the applicant’s performance as a pilot, I am not convinced at this point that he has the good judgement that is required of a chief pilot. I do not think the situation is helped by the fact that the applicant is under serious financial pressure. That sort of pressure is not conducive to the exercise of good judgement.
15. It may be that, with the benefit of a hearing and cross-examination of all the witnesses, I would form a favourable view of the applicant’s judgement. The accounts provided by witnesses at the Robina site, in particular, might turn out to be exaggerated or unfounded. But I have to make a preliminary assessment of the evidence as it stands. For the moment, the concerns about public safety count against the applicant.
16. The only question that remains is whether the applicant’s proposal to enter into a supervisory arrangement with another experienced balloonist will allay the safety concerns. After careful consideration, I am not persuaded the proposal or any thing like it will work. Substantial questions have arisen over the safety of this operation. A person undertaking a supervisory role would really need to be close at hand – effectively engaged in the day-to-day conduct of the operation – in a way that would enable him to see what was going on for himself.

CONCLUSION

17. While I appreciate this decision may have dreadful consequences for the applicant, I am ultimately persuaded that concerns over public safety in the short term suggest it is not appropriate to order a stay.

I certify that the 17 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member Bernard J McCabe.

Signed:..................................[Sgd]............................................

Michael Buckingham, Associate

Dates of Hearing 30 September 2009 and 1 October 2009

Date of Order 1 October 2009

Date of Written Reasons 14 October 2009

Advocate for the applicant Mr P Carter

Solicitor for the applicant Carter Capner Law

Advocate for the respondent Mr J Rule

Solicitor for the respondent CASA Legal Services Group