Administrative Appeals Tribunal Act 1975 ss. 41(2), 43(2A)

Re Ramsay and Department of Transport (1977) 2 ALD 97

Re Tobin and Department of Transport (1977) 2 ALN 354

Re Payne and Secretary of the Deparment of Aviation (No. V83/190: decided on 9 September 1983)

For reasons given orally at the hearing of this application the Tribunal decides that:-

(a) the implementation of the relevant decision which

is the subject of this application for review is

stayed until the determination of this review or

further order;

(b) the documentation required to be lodged with the

Tribunal pursuant to section 37 of the

Administrative Appeals Tribunal Act 1975 shall be

lodged with the Tribunal within 21 days of

today's date; and

(c) this application for review is to be set down for

hearing by the Administrative Appeals Tribunal on

Monday, 9 July 1984.

1. At the conclusion of the hearing of this application for review, I stated orally the terms of the decision intended to be made and the reasons therefor. Subsequently, pursuant to section 43(2A) of the Administrative Appeals Tribunal Act 1975, the respondent requested the Tribunal to furnish a statement in writing of the reasons of the Tribunal for its decision. Those reasons are now restated accordingly and will be furnished to the applicant and to the respondent.

2. The power to grant a stay of the operation of a decision under review is vested in the Tribunal by section 41(2) of the Administrative Appeals Tribunal Act 1975, which reads:-

"(2) The Tribunal or a presidential member may,

on request being made, as prescribed, by a party to a

proceeding before the Tribunal (in this section

referred to as the "relevant proceeding"), if the

Tribunal or presidential member is of the opinion

that it is desirable to do so after taking into

account the interests of any persons who may be

affected by the review, make such order or orders

staying or otherwise affecting the operation or

implementation of the decision to which the relevant

proceeding relates or a part of that decision as the

Tribunal or presidential member considers appropriate

for the purpose of securing the effectiveness of the

hearing and determination of the application for

review."

3. There are two identifiable persons whose interests are affected by the review. One is the applicant and the other is Aerocountry Pty. Ltd. There is also, as Mr Moore, representing the respondent, pointed out, a less specific group of persons, the general public. Counsel referred to a number of decisions of the Tribunal on applications for stay of decisions made under regulation 258 of the Air Navigation Regulations, in particular Re Ramsay and Department of Transport (1977) 2 ALD 97, Re Tobin and Department of Transport (1977) 2 ALN 354 and Re Payne and Secretary of the Department of Aviation (No. V83/190: decided on 9 September 1983). Mr Moore referred also to a number of cases in which, on review of a decision to cancel or suspend a pilot's licence, the Tribunal placed great weight on the interest of the public in the safe operation of aircraft.

4. In the cases referred to where a stay of operation of the decision under review was refused, either there was little or no dispute regarding the facts or the reasons given by the primary decision-maker for his decision were such that public safety was likely to be imperilled if the applicant were allowed to continue to fly. In the present case the last incident alleged to have occurred is serious, particularly as it is said to form part of a series of acts apparently indicating an unwillingness on the applicant's part to comply with requirements of air navigation law intended to ensure that aircraft are operated safely. But it is disputed that it occurred. That does, I think, distinguish it from a number of the other cases.

5. It is also, I think, to be distinguished from cases in which the applicant had some medical condition making it unsafe for him to fly a plane or had been found to be incompetent in airmanship. What the applicant in the present case is alleged to have done is not the result of incompetence but rather a display of what may need to be regarded as contempt for the law. A person who displays contempt for air navigation law intended to secure the safe operation of aircraft may well be as great a menace to the public as a person who is medically unfit or incompetent in airmanship. But, if pending the hearing of his application for review, he obeys the law, he is not a menace, as a person medically unfit or incompetent would continue to be.

6. If, after the facts have been ascertained at the hearing, the Tribunal considers that the applicant did deliberately flout the law and that his conduct warrants suspension of his licences in spite of the hardship which it will cause him and the company, the right or preferable decision may well be to affirm the decision under review. But, if its implementation before the facts have been established is likely to cause him or the company serious irreparable harm (irreparable in the sense that no recompense for it can be obtained if the application for review is successful) and so to affect adversely the effectiveness of the hearing and determination of the application under review, it may be appropriate to stay the implementation of the decision pending the hearing and decision of the application. However, in considering whether that is so, it is necessary that their interests be weighed against the interest of the public in the safe operation of aircraft. Only thus can the right or preferable decision regarding the stay be given.

7. If what Mr Rose has said about the harm which will be suffered by the applicant and the company is correct - and it has not been substantially controverted by anything Mr Moore has said - and if the applicant is not permitted to continue flying pending the hearing of his application for review, he will lose both wages during the period of his suspension and the possibility of obtaining a proprietary interest in the company's business. He is working for $250 a week because he has expectations of obtaining such an interest. Those expectations would, I am satisfied, be seriously jeopardized if he were prevented from flying, even for the period of two months or so that will probably elapse between now and the giving of a decision by the Tribunal after the hearing. The damage he would suffer would be likely to be irreparable, in the sense I have referred to above.

8. The hardship which he would suffer is to be weighed on one side of the scales. Also on that side is to be placed the company's difficulties in keeping its services operating if he cannot fly, although, if facts stated by Mr Moore in that regard are correct, it should be able to keep them operating in his absence. However, it might well have to operate much nearer to a break-even point financially, or even below it for a time, and suffer irreparable harm to that extent.

9. On the other side of the scales must be put the element of public interest; in this case, that is its interest in having all aircraft operated safely. I have already pointed out that this is not a case where the applicant is alleged to be suffering from some medical condition which makes it unsafe for him to fly, nor is it alleged that he is incompetent in airmanship so that, however much he tries to do the right thing, there will always be a danger to the public that he will be unable to do it. The safe operation of aircraft is at risk only to the extent that there is a possibility that he will flout the law.

10. When his flying history is looked at, it is apparent that there have been long periods between some of the incidents that are alleged to have occurred. The first was in 1972, the next on 24 July and 25 July 1980, then November 1980, September 1982, April 1983 and May 1983; after that there was a gap until May 1984. I do not think that the decision under review necessarily carries within it any inference that it was considered that the applicant, within a short period, was likely to operate an aircraft in an unsafe manner. I think that the inference to be drawn from the fact that his licences were suspended and not cancelled is that it was intended not exactly as a deterrent but at least to make him concentrate his mind on the need to obey the law.

11. The decision to suspend his licences, and the fact that the hearing of his application for review of it is pending are, I consider, likely to have that effect until the hearing. If he concentrates his mind on the need to obey the law, the chance of his operating an aircraft in an unsafe manner will be small. The weight to be placed in the scale in favour of refusal of a stay of implementation of the decision is, therefore, considerably less than the weight to be given to the factors favouring its grant. That being so, I am satisfied that the right or preferable decision is to order stay of the implementation of the decision pending the hearing of the application by the Tribunal, and I so order.