Trickey and Civil Aviation Safety Authority [2009] AATA 85; (2009) 107 ALD 667 (10 February 2009)

Last Updated: 4 November 2010

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2009] AATA 85

ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2008/5646 )

GENERAL ADMINISTRATIVE DIVISION		) )
	Re		ALAN TRICKEY

Applicant

And

CIVIL AVIATION SAFETY AUTHORITY

Respondent

DECISION

Tribunal

Senior Member Bernard J McCabe

Date 10 February 2009

Place Brisbane

Decision

Pursuant to s 41(2) of the Administrative Appeals Tribunal Act 1975, the Tribunal orders that: the implementation of part of the decision under review, namely the cancellation of the applicant’s Commercial Pilot (Aeroplane) Licence issued on 11 June 1981 (but not the cancellation of any instructor rating), be stayed until the hearing and determination of the application or earlier order on the condition that the applicant only uses such licence for the purpose of flying duties with Military Support Services Pty Ltd; there is liberty to apply to vary the order in paragraph 1.

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

CATCHWORDS

CIVIL AVIATION – Cancellation of Flight Crew Licences and Instructor Ratings – Public safety - Cancellation causing financial hardship – Part of decision cancelling Commercial Pilot (Aeroplane) Licence stayed

REASONS FOR DECISION

10 February 2009

Senior Member B J McCabe

1. The Civil Aviation Safety Authority (“CASA”) cancelled Alan Trickey’s flight crew licences and instructor ratings. The cancellation decision was made on 17 November 2008. The automatic stay of the cancellation decision is about to expire. Mr Trickey sought review of the original decision. He now asks that the Tribunal exercise its power to stay the operation or implementation of the cancellation decision pursuant to s 41(2) of the Administrative Appeals Tribunal Act 1975 until the review can be finalised following a hearing.
2. The Tribunal’s power to stay the operation of the decision is available where:
   • the making of the order is desirable having regard to the interests of the parties and anyone else who may be affected by the review.; and
   • it is necessary to secure the effectiveness of the hearing and determination of the application of review.
3. The applicant, Mr Trickey, is engaged in a number of business activities. Most of those activities are not directly dependent on his aviation licences and approvals, although he does have an interest in an aviation business that provides training and support for the military. He flies for that organisation and also provides instruction to pilots. That business is one of the few profitable parts of his larger business activities, and he gave evidence that his financial position will be prejudiced if he is unable to access the cash-flow provided by the aviation business.
4. The respondent conceded the evidence established that Mr Trickey will experience hardship if his flight crew licences and ratings are cancelled. I think the respondent was right to do so, although it seems to me the prejudice will be somewhat less if the applicant is permitted to continue flying without acting as an instructor. I was told that the applicant is one of a small number of persons – perhaps the only person – who has the approval to train pilots operating the sort of aircraft used by the aviation business. Mr Ribbands, for Mr Trickey, was unsure whether another person might be located with the necessary approvals. A comprehensive search for such a person has not yet been undertaken. At this point, I am not satisfied Mr Trickey’s role as an instructor is essential to the operation of the business. On the current state of the evidence, I am not persuaded Mr Trickey will be denied the cash-flow he says he needs from the aviation business if he is prevented from continuing to act as an instructor, provided he is permitted to retain his flight crew licences.
5. The question of public safety is obviously important. The allegations made against Mr Trickey are serious. If they are true, public safety may have been seriously compromised. Pilots whom he had trained might not have been properly evaluated, or might have acquired bad habits or attitudes which imperil the safety of air navigation. I note the allegations relate to Mr Trickey’s role as a check and training pilot and instructor. They do not relate to his role as a pilot. Ms Ford, for CASA, suggested the applicant had difficulty dealing with stress and had poor judgement that led him to make mistakes in his other roles. She said the same shortcomings were likely to affect his capacity as a pilot. I am not satisfied that is so. Mr Trickey has a lengthy record of flying without incident. I was shown testimonials from other people in the aviation industry that confirmed he is unlikely to be a threat to air safety when acting as a pilot.
6. I was also asked to consider the merits of the case. I have already said the allegations made against Mr Trickey are serious. Mr Ribbands made it clear the applicant has every intention of strenuously defending himself at the final hearing. I am satisfied there are serious questions in issue between the parties.
7. Mr Ribbands also asked me to consider the fate of other individuals involved with Lip-Air Pty Ltd, the organisation where Mr Trickey is supposed to have failed to discharge his responsibilities as an instructor and check pilot. I was referred to the decision in McKenzie and CASA [2008] AATA 651. In that case, Deputy President Hack, SC stayed the implementation of regulatory action against the chief pilot and check and training pilot of Lip-Air. Mr Ribbands said his client should receive the same treatment. Ms Ford said the cases were quite different.
8. While I accept it may be appropriate to have regard to the way in which the Tribunal and the original decision-maker have approached similar cases, or other persons involved in what is essentially the same case, care must be taken lest one misses what may be subtle or even significant distinctions. I am not in a position at this point in the proceedings to reach a view about the extent of Mr Trickey’s behaviour or any culpability that might attach, let alone make meaningful comparisons between his behaviour and the behaviour of others who are not witnesses in these proceedings.
9. I turn now to the larger question of whether it is necessary to stay the decision in order to secure the effectiveness of the hearing. I am satisfied for now that the applicant’s role with Military Support Services, his aviation business, will be imperilled if he is not able to continue flying. His income will be jeopardised. That damage is likely to occur before the hearing can be completed, and it may be irreparable.
10. I am satisfied in all the circumstances that it is appropriate to order a stay pursuant to s 41(2) of the Act in respect of the decision to cancel Mr Trickey’s flight crew licences so that he may continue to fly with Military Aviation Services. That stay will take effect upon the expiry of the automatic stay on 15 February 2009.
    

I certify that the 10 preceding paragraphs are a true copy of the reasons for the decision herein of

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

Matyas Kochardy, Associate

Date/s of Hearing 5 & 9 February 2009

Date of Decision 10 February 2009

Counsel for the Applicant Mr John Ribbands

Solicitor for the Applicant Mr John Maitland

Counsel for the Respondent Ms Elenne Ford

Solicitor for the Respondent Mr Rick Heap