Civil Aviation Safety Authority v Bell [2008] FCA 1049 (14 July 2008)

Last Updated: 17 July 2008

FEDERAL COURT OF AUSTRALIA

Civil Aviation Safety Authority v Bell [2008] FCA 1049

CIVIL AVIATION SAFETY AUTHORITY v ANTHONY BELL
ACD 17 OF 2008

STONE J
14 JULY 2008
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY	ACD 17 OF 2008

BETWEEN:	CIVIL AVIATION SAFETY AUTHORITY Applicant
AND:	ANTHONY BELL Respondent

JUDGE:	STONE J
DATE OF ORDER:	14 JULY 2008
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The respondent be prohibited from doing anything that would otherwise be authorised by his Commercial Pilot (Aeroplane) licence and his Private Pilot (Aeroplane) licence for a period ending on 14 July 2008.












Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY	ACD 17 OF 2008

BETWEEN:	CIVIL AVIATION SAFETY AUTHORITY Applicant
AND:	ANTHONY BELL Respondent

JUDGE:	STONE J
DATE:	14 JULY 2008
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1 The present application is brought by the Civil Aviation Safety Authority (CASA) under s 30DE of the Civil Aviation Act 1988 (Cth). The respondent is the holder of Private, Commercial and Flight Radiotelephony Operator’s licences issued by CASA. On 29 May 2008 CASA suspended the respondent’s pilot’s licences pursuant to s 30DC of the Civil Aviation Act. CASA now seeks an order under s 30DE(2) extending the period of suspension and prohibiting the respondent from doing anything that would be authorised by his pilot’s licences for a period ending today, 14 July 2008.

2 Section 30DE of the Civil Aviation Act provides:

(1) If CASA suspends a civil aviation authorisation under section 30DC, CASA may, before the end of the fifth business day after the day on which the holder of the authorisation was notified of the suspension, apply to the Federal Court for an order under this section.

(2) If the Federal Court is satisfied that there are reasonable grounds to believe that the holder has engaged in, is engaging in, or is likely to engage in, conduct that contravenes section 30DB, the Court must make an order that prohibits the holder from doing anything that is authorised by the authorisation but that, without the authorisation, would be unlawful.

(3) In deciding under subsection (2), the Federal Court must have regard to section 3A and subsection 9A(1).

(4) Subject to section 30DF, an order continues in force for the period determined by the Federal Court when making the order, being the period (not more than 40 days) that the Court considers reasonable to allow CASA to complete an investigation into the circumstances that gave rise to CASA’s decision to suspend the authorisation.

3 Section 30DB provides:

The holder of the civil aviation authorisation must not engage in conduct that constitutes, contributes to or results in a serious and imminent risk to air safety.

4 The applicant tendered a letter from the respondent’s solicitor dated 20 June 2008 addressed to CASA. The letter stated:

The purpose of this letter is to record our client’s (Mr Anthony Bell) commitment to assisting CASA with its investigation. We confirm that we have been instructed to not oppose CASA’s application for an Order in the Federal Court under section 30DE of the Civil Aviation Act 1988 (Cth). As such our client will consent to an Order in the terms of the Application.

5 Mr Bell’s consent was confirmed in his affidavit of 10 July 2008. Irrespective of the respondent’s consent, the terms of s 30DE(2) indicate that the Court must be satisfied independently that there are reasonable grounds to hold the belief that the requirements of the section have been met. The respondent’s consent is relevant, however, in that there is no challenge to the facts as set out in the affidavits read by CASA.

6 Section 30DE(3) provides that the Court must have regard to s 3A and s 9A(1). These provisions state:

3A Main object of this Act 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 Performance of functions (1) In exercising its powers and performing its functions, CASA must regard the safety of air navigation as the most important consideration.

7 If, having taken the above provisions into account, the Court is satisfied that the reasonable grounds referred to in s 30DE(2) exist, the Court must make the order. It does not have discretion to refuse the order. Moreover, as CASA submits, it is not necessary for the Court to be satisfied that the conduct complained of did occur. It is only necessary for the Court to be satisfied that there are "reasonable grounds" to believe this, which may be achieved "on more slender evidence than proof"; see George v Rockett [1990] HCA 26; (1990) 170 CLR 104 at 116.

8 In making its determination the Court must consider the conduct that has occurred. In this case the applicant’s unchallenged account of that conduct is set out in the affidavit of Narelle Tredrea, the manager of CASA's Enforcement Policy and Practice Branch, in which capacity she oversees the applicant's Co-ordinated Enforcement Policy in relation to all matters referred to the branch and any consequent enforcement initiated by the applicant. Ms Tredrea referred to a request for an investigation into an incident involving a Cessna 441 aircraft, registration mark VH-LBD piloted by the respondent. She stated:

The request related to a landing made by the respondent in the aircraft, at Glen Station in Western Australia on 16 May 2008. In particular, the request for investigation alleged that the respondent, whilst pilot-in-command of a charter flight with seven passengers on board, had mistakenly landed the aircraft on a dirt-road which had never been used as a runway and upon becoming aware of his mistake, had attempted a take-off during which the aircraft struck a large tree which cause significant damage to the right wing.

9 Annexed to Ms Tredrea’s affidavit are copies of statements written by four of the seven passengers who had been on board the aircraft during the alleged incident, as well as photographs of the damaged aeroplane. The accounts of the passengers are largely consistent with each other and with the above account. It is not necessary to summarise them in any detail. They describe the aircraft's approach to the Glen Station, its fly over the airstrip, its landing, subsequent take-off and second landing. At least one passenger stated that the correct runway was clearly visible and easily recognisable from the air before the first landing. Although the aircraft was damaged in the take-off, the second landing was successfully accomplished on a different airstrip and the passengers, though shaken, were not injured.

10 Evidence was also given in an affidavit made by Hadyn Siggins, a Flight Operations Inspector based in CASA’s Perth office. Mr Siggins’ evidence related to damage to the aircraft, which he had inspected where it was parked on a dirt airstrip on a property in Western Australia known as Glen Station. Mr Siggins described damage to the right wing and wing tip of the Cessna which, he said, was consistent with the wing having made contact with a tree on landing or take-off. Mr Siggins described the landing and take-off area used by the pilot, the respondent to this application, who stated that:

(a) The "runway" was 10 metres wide compared to the recommended 15 metres;

(b) The component of the "runway strip" on either side of the runway that should be suitable for rolling over was at most 3 metres compared to the recommended 15 metres.

11 Mr Siggins expressed the opinion that the runway strip was unsuitable for landing the relevant aircraft. He added:

Furthermore, having landed on such an unsuitable "runway", I would expect a prudent pilot, whose prime consideration was for the safety of the aircraft and passengers, to shut the aircraft down, disembark passengers, and make a detailed, unhurried survey of the proposed take off areas considering both the legal and risk factors evident. The respondent did not do this.

12 Additional evidence was given by Mr Michael English, who is currently employed by CASA as a general aviation specialist engaged in drafting maintenance regulations. Although at the time of making his affidavit Mr English had not inspected the actual aircraft, he considered photographs of the damage sustained to it. He also considered the request made to CASA for an investigation and the handwritten statements of the passengers, as well as CASA’s notice to respondent.

13 Mr English gave evidence concerning the likely effect of the damage that had been sustained to the aircraft on its handling, particularly at low levels. He stated that in his opinion the road or track used by the respondent to land and take off did not meet the relevant criteria and was otherwise unsuitable because of its narrowness, its close proximity to trees, the poor conditions of the road and the location of the fence running across the track. Mr English’s evidence is in itself sufficient to convince me that in what occurred there was a real risk to air safety. However, in assessing the conduct under consideration the Court is not making that assessment at large but is governed by relevant CASA regulations and other civil aviation standards. In the circumstances, it is not necessary for me to go into these, other than to say that I am satisfied that there are reasonable grounds to believe the respondent’s handling of the aeroplane on the day in question did not meet the standard in CASA’s regulations or other civil aviation standards.

14 The evidence in this case is sufficient for me to conclude with satisfaction that there are reasonable grounds to believe that the holder, the respondent in this matter, has engaged in conduct that contravenes section 30DB of the Civil Aviation Act. In those circumstances, I am obliged to make the order sought by CASA, which is that the respondent be prohibited from doing anything that is otherwise authorised by his pilot’s licences.

I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Stone.

Associate:

Dated: 14 July 2008

Solicitor for the Applicant:	A Anastasi of the Civil Aviation Safety Authority
Solicitor for the Respondent:	Carter Capner Law

Date of Hearing:	14 July 2008
Date of Judgment:	14 July 2008