Bellamy and Civil Aviation Safety Authority
[2016] AATA 956
•29 November 2016
Bellamy and Civil Aviation Safety Authority [2016] AATA 956 (29 November 2016)
Division
GENERAL DIVISION
File Number
2016/1472
Re
Michael Bellamy
APPLICANT
And
Civil Aviation Safety Authority
RESPONDENT
DECISION
Tribunal Egon Fice, Senior Member
Date 29 November 2016 Place Melbourne The Tribunal sets aside the decision to cancel the Applicant’s Private Pilot Licence - Aeroplane Category (PPL) and in substitution determines that the Applicant’s PPL remains valid and must be treated as never having been cancelled.
[sgd]........................................................................
Egon Fice, Senior Member
CIVIL AVIATION - cancellation of license - private pilot licence - aeroplane category - whether failure by applicant in duty regarding safe operation of aircraft - whether applicant is a fit and proper person to hold private pilot license - conduct concerning crash during ground operations - classification of aircraft as amateur-built or experimental - issue of maintenance release - honesty and recognisance of applicant - whether conduct in respect of gyroplane aircraft relevant to conduct in respect of aeroplanes - decision set aside
Legislation
Civil Aviation Act 1988 (Cth) ss. 9A, 20A, 20AA, 20AB, 28, 29
Civil Aviation Regulations 1998 (Cth) regs. 2, 5.50, 35, 36, 42CB, 42ZC, 43, 229, 269
Civil Aviation Safety Regulations 1998 (Cth) regs. 21.175
Civil Aviation Order 95.12.1 2006 (Cth) OO 3A, 4
Criminal Code Act 1995 (Cth) s. 141.1
Cases
Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321
Secondary Materials
Civil Aviation Safety Authority, 'Advisory Circular AC 21.10 (0) - Experimental Certificates' (October 2001)
Civil Aviation Safety Authority, 'Advisory Circular AC 21.4 (2) - Amateur-Built Experimental Aircraft - Certification' (September 2000)
Ian Morcombe, ‘Rotor Management’ in Close Call: Sport Aviation Special (Australian Sport Rotorcraft Association)
REASONS FOR DECISION
Egon Fice, Senior Member
29 November 2016
Mr Michael Bellamy was the holder of a Private Pilot Licence – Aeroplane Category (PPL). That licence was issued to him on 13 August 2002. Mr Bellamy was also the registration holder of a McCulloch J2 gyroplane bearing the Australian registration mark VH-MBY.
On 16 July 2010 Mr Bellamy was conducting ground runs along runway 17/35 at Bendigo airport. On one of those runs he lost control of the aircraft which rolled over on its side causing the rotor to strike the runway and effectively destroy the aircraft. Mr Bellamy was unharmed.
After conducting an investigation into the accident, CASA initiated proceedings in the Bendigo Magistrates’ Court claiming that Mr Bellamy was in breach of s. 145.1 of the Criminal Code Act 1995 (the Criminal Code) which relevantly provides:
(1) A person commits an offence if:
(a)the person knows that a document is a false document and uses it with the intention of:
(i) dishonestly inducing another person in another person’s capacity as a public official to accept it as genuine; and
(ii) if it is so accepted, dishonestly obtaining a gain, dishonestly causing a loss, or dishonestly influencing the exercise of public duty or function; and
(b)the capacity is a capacity as a Commonwealth public official.
Penalty: Imprisonment for 10 years.
Mr Bellamy was also charged with reckless operation of aircraft as described in s. 20A of the Civil Aviation Act 1988 (Civil Aviation Act). Section 20A provides:
Reckless operation of aircraft
(1)A person must not operate an aircraft being reckless as to whether the manner of operation could endanger the life of another person.
(2)A person must not operate an aircraft being reckless as to whether the manner of operation could endanger the person or property of another person.
The second charge was in fact brought under s. 29 of the Civil Aviation Act which provides that the owner or operator of an aircraft commits an offence if he or she operates aircraft or permits aircraft to be operated and the operation of the aircraft results in contravention of s. 20A(1).
Mr Bellamy was found guilty of the false document offence but not guilty of reckless operation of an aircraft offence. Nevertheless, CASA issued Mr Bellamy with a show cause notice dated 15 July 2015, providing Mr Bellamy with the opportunity to respond. In a letter dated 16 March 2016 CASA informed Mr Bellamy that it had determined that he failed in his duty as the holder of a PPL and that he was not a fit and proper person to be the holder of a PPL. Accordingly, CASA cancelled his PPL.
On 22 March 2016 Mr Bellamy lodged an application with the Tribunal seeking review of CASA’s decision to cancel his PPL.
THE PROBLEM AIRCRAFT
The J2 gyroplane VH-MBY was an Australian registered aircraft but had not been issued with a certificate of airworthiness. It previously held a Type Certification in the Standard Category of Certificate of Airworthiness but that certification was cancelled when it was taken off the Civil Register. Mr Bellamy purchased the aircraft in 2000 intending to restore it to its original standard of airworthiness in the Standard Category with some design modifications.
Mr Bellamy intended to apply for a Certificate of Airworthiness in the Standard Category after the restoration was completed. He considered himself to be well qualified to complete this restoration having been employed as a professional engineer at the Government Aircraft Factories at Fisherman’s Bend between 1972 and 1986 and with Australian Defence Industries at Bendigo between 1986 and 1999. In 1972 he qualified for the degree of Bachelor of Engineering (Aero) at the University of New South Wales.
Unfortunately for Mr Bellamy, he ran into serious difficulties getting approval from the Civil Aviation Safety Authority (CASA). No purpose is served in reciting the full history of those difficulties. The fact that CASA produced in excess of 1600 pages in the s. 37 (of the Administration Appeals Tribunal Act 1975 (AAT Act)) documents for the purposes of this matter is testimony to that. In order to provide some background, however, I will briefly set out in outline form the events which led to Mr Bellamy conducting ground runs in the J2 which led to the accident and subsequently his conviction.
Mr Bellamy believed that he could improve on some of the engineering aspects of the J2. In particular, as is frequently the case with aircraft which were designed many years ago, technology has improved significantly and in the course of restoration, it appears to be logical to incorporate advanced technology where possible. However, modification of an aircraft or the use of components in substitution for existing components requires the approval of CASA (reg. 35 and 36 of the Civil Aviation Regulations 1988 (CAR). CASA must be satisfied that a modification or repair will not adversely affect the safety of an aircraft.
The problem is compounded where the aircraft is a type certified aircraft or was formerly a type certified aircraft. Questions are likely to arise as to whether the aircraft should then be certified under the experimental category of certification or, where significant alterations have been made, amateur built certification. That was particularly so in Mr Bellamy’s case when he commenced restoration work on his J2 gyroplane. The legislative material then was found variously in the CAR and Part 21 Subpart H of the Civil Aviation Safety Regulations 1998 (CASR) (then in its infancy), supplemented by Advisory Circulars issued by CASA. Certification and airworthiness requirements for aircraft and parts are now dealt with comprehensively under Part 21 of the CASR. Certificates of airworthiness under the current system are classified as a Special Certificate of Airworthiness or a Standard Certificate of Airworthiness (reg. 21.175 of the CASR). Amateur built aircraft accepted under an ABAA (Amateur-Built Aircraft Acceptance) or an experimental certificate are issued as a special certificate of airworthiness.
Section 20AA (3) of the Civil Aviation Act 1988 (the Civil Aviation Act) provides:
(3) An owner, operator, hirer (other than the Crown) or pilot of an Australian aircraft must not commence a flight in the aircraft, or permit a flight in the aircraft to commence, if:
(a)there is no certificate of airworthiness under the regulations in force in respect of the aircraft; and
(b)the regulations do not authorise a flight without the certificate.
When CASA refused to accept three out of the four modifications Mr Bellamy had made to his J2 gyroplane, he accepted that it could not be issued with a Standard Certificate of Airworthiness. CASA also apparently refused to issue a certificate to the aircraft as an amateur built aircraft because a major portion of it had not been fabricated and assembled by Mr Bellamy.
According to Mr Bellamy, following a discussion with Mr George Dukats from CASA, who is now unfortunately deceased, CASA agreed that his aircraft should be provided with an experimental certificate. Mr Bellamy also said that Mr Dukats told him to contact Mr Darren Barnfield who was the authorised person for the issue of a permanent experimental certificate. Following this discussion, Mr Bellamy made an entry in his diary Exp Cert OK which he said confirmed that CASA had approved an experimental certificate. He also had a number of signs made which he attached to his J2 gyroplane indicating that it was an experimental aircraft.
However, CASA denied that Mr Bellamy had ever been issued with an experimental certificate. That is despite the fact that in a statutory declaration made by Mr Bellamy on 31 March 2012, he said that he contacted Mr Barnfield in February 2010 for the purpose of having him attend where the aircraft was housed in order to make an assessment for the issue of an experimental certificate. According to Mr Bellamy, Mr Barnfield did attend and conducted an inspection/assessment of the aircraft and some of the aircraft’s log books. However, Mr Bellamy agreed that CASA had never issued him with an experimental certificate (the document) for his J2 gyroplane, simply that CASA had agreed to do so.
The purpose and issue of a maintenance release
I should briefly say something about the issue of the maintenance release. Regulation
43(1) of the CAR provides that in respect of Australian aircraft, a maintenance release shall be issued only by authorised persons and only in such a manner, and in accordance with such form, as CASA directs or approves.
Persons who may carry out maintenance on Australian aircraft in Australian territory are set out in reg. 42ZC of the CAR. The carrying out of maintenance on aircraft includes the modification of an aircraft or parts thereof. Aircraft which are not transport category aircraft or being used for commercial purposes are referred to as class B aircraft. Regulation 42ZC (4) relevantly provides:
(4) Subject to subregulation (5), a person may carry out maintenance on
class B aircraft in Australian territory if:
(a)the person:
(i) holds:
(A) an aircraft engineer licence that permits him or her to perform maintenance certification for the maintenance; or
(B) an airworthiness authority or an aircraft welding authority covering the maintenance; and
(ii) either:
(A)holds a certificate of approval covering the maintenance; or
(B)is employed by, or working under an arrangement with, a person who holds a certificate of approval covering the maintenance;…
Maintenance is defined in reg. 2 of the CAR as:
(a)in relation to an aircraft:
(i) the doing of any work (including a modification or repair) on the aircraft that may affect the safety of the aircraft or cause the aircraft to become a danger to person or property;…
Mr Bellamy did not hold an aircraft engineer licence. He was not employed by or working under an arrangement with a person who held a certificate of approval (a person or organisation holding a certificate of approval is permitted to carry out maintenance on an aircraft in accordance with that approval). Mr Bellamy was therefore not permitted to perform maintenance on his J2 aircraft.
As will become apparent presently, Mr Bellamy’s civil conviction related to what is known in the industry as a maintenance release. Regulation 43 of the CAR deals with this topic, including persons who are authorised to issue a maintenance release. Regulation 43(6) provides that a maintenance release may be issued in respect of an aircraft only if there is in force a certificate of airworthiness for the aircraft or CASA has approved the issue of the maintenance release. Furthermore, reg. 43(7) provides that a maintenance release may only be issued where all maintenance in respect of the aircraft required to be carried out in order to comply with any requirement or condition imposed under the regulations has been properly certified.
The Civil Aviation Act prohibits flying an aircraft which has not been issued with a maintenance release. Section 20AA (4) provides:
(4) An owner, operator, hirer (other than the Crown) or pilot of an Australian aircraft must not commence a flight in the aircraft, or permit a flight in the aircraft to commence, if one or more of the following apply:
(a)there is outstanding a requirement imposed by or under the regulations in relation to the maintenance of the aircraft;
(b)the aircraft will require maintenance before the flight can end;
(c)there is a defect or damage that may endanger the safety of the aircraft or any person or property;
(d)the aircraft is unsafe for flight.
Mr Bellamy claimed that an experimental certificate was not a certificate of airworthiness, but rather an exemption. He said based on this belief that, as the owner/operator of his J2 gyroplane which had not been issued with a certificate of airworthiness, no maintenance release needed to be issued. That seems to be contrary to what is stated in Advisory Circular AC 21.10(0) issued by CASA in October 1998. At clause 17.5, AC 21.10 which deals with maintenance releases, it is stated:
17.5.1 A maintenance release does not have to be issued prior to the issue of an experimental certificate. However, an aircraft operating on an experimental certificate cannot fly legally until a maintenance release has been issued and is in force.
I also understood Mr Bellamy to claim that even if an experimental certificate had issued, he was authorised, as the holder of the certificate of registration, to issue a maintenance release. He relied on regulation 42CB of the CAR which deals with Maintenance – experimental aircraft. It provides:
The holder of the certificate of registration for class B aircraft that is an experimental aircraft must maintain the aircraft in accordance with any conditions to which the certificate is subject under regulation 21.195A of CASR.
With respect to Mr Bellamy, regulation 42CB falls within Part 4A of Division 2 of the CAR which deals with maintenance for which the holder of a certificate of registration is responsible. Being responsible for maintenance is not the same thing as carrying out the maintenance. Section 20AB (2) of the Civil Aviation Act provides:
(2) A person must not carry out maintenance on:
(a)an Australian aircraft; or
(b)an aeronautical product in Australian territory; or
(c)an aeronautical product for an Australian aircraft;
if the person is not permitted by or under the regulations to carry out that maintenance.
Only persons who carry out or coordinate the maintenance are entitled to issue a maintenance release. A maintenance release cannot issue until final certification of maintenance conducted has been made. Final certification is made by the person who conducted or co-ordinated the maintenance. As I have pointed out above, reg. 42ZC (4) of the CAR describes the persons who may carry out maintenance on class B aircraft in Australian territory.
TEST FLYING THE AIRCRAFT
Mr Barnfield also asked Mr Bellamy who was going to fly the aircraft for test purposes. When Mr Bellamy said he would, Mr Barnfield said that would not happen, stating that a test pilot would be required. According to Mr Bellamy Mr Barnfield also said he would not issue the experimental certificate before the test pilot was nominated. I did not have before me any evidence of any document which would support Mr Bellamy’s claim that he had lodged an application with CASA for an experimental certificate.
A further issue arose regarding Mr Bellamy’s pilot qualifications to fly or otherwise operate his J2 gyroplane. Mr Bellamy only held a Private Pilot (Aeroplane) Licence. The J2 is effectively a gyroplane, that is, a heavier-than-air aircraft which is supported in flight by the reaction of air on rotors which are not power driven but rotate when the aircraft is moving because of the action of the air, and has a power driven propulsion system independent of rotors (see definition in reg. 2 of the CAR).
I refer to the J2 as being effectively a gyroplane because it is in some respects a hybrid between a gyroplane and helicopter. In normal operations, prior to takeoff, engine power is applied to the rotor to spin it up to about 500 rpm through a clutch mechanism. The clutch mechanism is then disengaged, allowing all of the power to drive the propeller at the rear of the aircraft which creates forward propulsion. When sufficient forward speed is attained, the rotor provides lift in exactly the same way as it would on an ordinary gyroplane, that is, by the reaction of the air on the rotor blade which is pitched at about a 4° angle of attack. In other words, the rotor blade simply auto-rotates.
It appears that Mr Bellamy initially wish to conduct flying training in his J2 gyroplane. Mr Bellamy suggested a New Zealand pilot, Mr John Brough, be permitted to do the training based an absence of qualified flight instructors for the J2 gyroplane. Only some 80 J2 gyroplanes were built by McCulloch and production ceased many years ago.
CASA expressed some concern about that proposal. In order to obtain a Private Pilot Licence (Gyroplane), Civil Aviation Order (CAO) 95.12.1 which came into effect in 2006, required that a gyroplane not be operated by a person as pilot in command unless the person held a valid Gyroplane Pilot Certificate (paragraphs 3A and 4.1(c)). That certificate could only be issued by the Australian Sport Rotorcraft Association (ASRA). The ASRA was not prepared to grant the Pilot Certificate if Mr Bellamy did his training on a non-ASRA registered gyroplane. CASA suggested that Mr Bellamy find another J2 gyroplane and instructor in New Zealand which might enable him to gain a qualification which CASA may then be in a position to consider in lieu of the ASRA Certificate. Although Mr Bellamy undertook some dual pilot training towards obtaining an ASRA Pilot Certificate, he did not reach the level of competency required for solo flight.
It is clear from letters which Mr Bellamy wrote to CASA in about February 2009 that he was anxious to demonstrate the J2 at the March 2009 Avalon Airshow. He explained he had been invited to attend every airshow since 2000. Mr Bellamy claimed to have restored his aircraft under the supervision of licensed mechanics (engineers) at Bendigo airport and claimed to have done everything in accordance with CASA regulations. It is also clear from that correspondence that Mr Bellamy was becoming increasingly frustrated with what he perceived to be hurdles placed in front of him in whichever direction he attempted to proceed.
In an email dated 17 June 2010 Mr Bellamy told Mr Robert Glenn of CASA that the aircraft was now complete except for a noise certificate and that it was ready for a test flight. CASA remained of the view that the test flight should be conducted by suitably qualified test pilot. Although Mr Bellamy said he was willing to do the flight and believed he had the appropriate knowledge and skills to fly the aircraft, he nevertheless sought the services of a Mr Sam Wilson who was qualified to conduct test flight.
Mr Bellamy said Mr Wilson told him he was okay with the test flight, but did not think it needed a test pilot. This issue appeared to be resolved when Mr Nick Coulson, a test pilot with CASA, received an email from Mr Keith Engelsman with which he agreed. Mr Engelsman said:
Unless there has been a recent change in Regulations, there is no requirement for a formally qualified Test Pilot to undertake any test flying in any Australian aircraft; type certificated or not. This is so in most countries, including the USA. The only issue you may have is whether CASA has decreed that the extent of refurbishment has relegated the aircraft into the Experimental Category until such time as it is proven there is no influence on flight handling qualities or performance. In this case some test flying, as dictated by CASA, will be necessary. Regulations do not require a qualified Test Pilot to perform this work, but CASA might require that their Test Pilot validate the results of such test flying.
THE ACCIDENT
According to Mr Bellamy, on 16 July 2010 he decided he needed to do some ground runs in his J2 aircraft for the purpose of solving an engine rough idling problem and also to test the adjustment of the main rotor dampers which were oil filled. In a Statutory Declaration made by Mr Bellamy on 31 March 2012, Mr Bellamy explained that engine idling had been a problem for a while because of a number of years of static ground running when attempting to raise the running temperatures to burn off oil deposits.
Mr Bellamy decided he would have to taxi the aircraft at relatively high power and speed to overcome the problem. He also described a problem with setting the torque on the main rotor lag hinge dampers due to a change in fluid required because the original fluid specified for the dampers had become obsolete. He said he would have to do a taxi (ground run) trial to check their operation and that would have the attendant risk of unintentional flight.
In forming his opinion of the operations he was lawfully permitted to conduct, it appears that Mr Bellamy relied significantly on Advisory Circular AC 21.4(2) made in September 2000. It deals with amateur-built experimental aircraft and their certification. Clause 14.3 provides:
The minimum qualification a pilot must hold to carry out the initial flight testing on an amateur-built experimental aircraft is a private pilot licence (PPL) with the appropriate endorsements.… Although the regulations do not call for the amateur-built experimental aircraft test pilot to have any specific test flying qualifications or knowledge, it would be most unwise for the initial flight tests to be carried out by other than a pilot with such knowledge, especially in the case of a totally unproven design.
As for taxiing the aircraft, Mr Bellamy appears to have relied on clause 15.1.1 which provides:
The pilot should become thoroughly familiar with the brake tests, engine operation, and ground handling characteristics of the aircraft by conducting taxi tests before attempting flight operations. Lift-off is not permitted during taxi tests without a special certificate of airworthiness.
The first problem, which should have been self-evident to Mr Bellamy, is that the J2 gyroplane is not an amateur-built aircraft. It was a production aircraft and it was issued with a type certification which was withdrawn, only because production ceased and it could no longer be supported by the manufacturer. It could never be described as an amateur-built aircraft. An amateur-build aircraft is defined in AC 21.4(2) in the following way (clause 5.1):
An amateur-built aircraft is an aircraft, the major portion of which has been fabricated and assembled by a person or persons who undertook the construction projects solely for their own education or recreation. (Emphasis added)
The important aspect of this definition is the fact that the major portion must be fabricated and assembled by the persons who undertook the project. The expression major portion is also defined term and in essence, it means more than 50% of the aircraft. While Mr Bellamy said that he had stripped the major portion of the aircraft and reassembled it, he had not done both, that is fabricated and assembled the aircraft. Use of the conjunctive and is significant although it appears to have been overlooked by Mr Bellamy.
I agree with what Mr Michael English, a Standards Officer with CASA, said in a statement which was taken into evidence. He said:
It would always be a Aero Resources/McCulloch J2 gyroplane. If modified, it may have become subject to additional maintenance and flight manual requirements, but it would still remain a J2 gyroplane.
That being the case, and given that Mr Bellamy had made a number of modifications to his J2 gyroplane, he ought to have applied for an experimental certificate for the purpose of research and development, particularly in respect of new aircraft equipment or new aircraft installations in accordance with reg. 21.191 the CASR. As Advisory Circular AC 21.10 states, both commercially built and amateur built aircraft are eligible for the issue of an experimental certificate for the purposes I have suggested (paragraph 7.1.3).
On 16 July 2010 Mr Bellamy decided he would do a number of ground runs along the runway at Bendigo airfield. Mr Bellamy’s evidence was that his testing of the aircraft was always intended to be only taxi testing. He did not intend, and in fact did not, attempt to fly the aircraft either deliberately or inadvertently. CASA appears to hold a different view, particularly after viewing video evidence of the test run on which the accident occurred. I shall refer to that presently.
Before proceeding to do his ground runs at Bendigo airfield, Mr Bellamy did a strange thing. Mr Graham Thompson, an aircraft owner and operator who is the manager of a hangar at Bendigo airport where Mr Bellamy stored his J2 gyroplane, made a Statutory Declaration dated 22 June 2016 in which he said he was present on 16 July 2010 when Mr Bellamy carried out the ground testing of his aircraft. Mr Thompson said he was present in the hangar when Mr Bellamy was preparing the gyroplane and before pushing it out of the hangar, Mr Bellamy went to Mr Ray Goulding, a Licensed Aircraft Maintenance Engineer (LAME) and brought back a maintenance release form which Mr Bellamy filled out at that time. I say this is strange because, as noted above, Mr Bellamy did not require a maintenance release to conduct ground testing. It seems Mr Bellamy was aware of that.
Mr Goulding gave evidence at the Magistrates’ Court hearing in which he agreed that he did give to Mr Bellamy a blank maintenance release form. In a statutory declaration made by Mr Bellamy on 31 March 2012, he said he asked Mr Golding for a blank maintenance release on which he could document the state of the airworthiness of the gyroplane in case of unintentional flight.
Mr Bellamy also said that being the designer of modifications fitted to the gyroplane, and as the Certificate of Registration holder, he was the only person capable of certifying the airworthiness of this aircraft as required by Civil Aviation Advisory Publication (CAAP) 43.1. Mr Bellamy stated that the maintenance release was issued to document the state of airworthiness in case of unintentional flight only. Where there is provision on the maintenance release document for entry of an Authority Number, Mr Bellamy wrote Ref Darren Barnfield SAAA.
Mr Bellamy said he referred to Mr Barnfield as the authorised person because Mr Barnfield was not qualified by the inspector to issue a maintenance release for the gyroplane and he claimed there was no intention to misrepresent that he had done so or was present at the time the maintenance release purportedly issued. Mr Bellamy signed off the daily inspection on the maintenance release on that day. Mr Barnfield subsequently confirmed that he had never seen the maintenance release and that his name on it was applied without his knowledge or approval.
As I have already stated above [19], Mr Bellamy was not authorised to issue a maintenance release nor was he authorised to conduct maintenance of the J2 gyroplane. The reference to Mr Barnfield on that maintenance release was clearly misleading. Furthermore, a maintenance release is only required to issue prior to flying the aircraft concerned. Because Mr Bellamy did not intend to fly the J2 gyroplane, there was no good reason why he required a maintenance release in the first place.
The Magistrates’ Court found Mr Bellamy guilty of knowingly using a false document, namely maintenance release A67450, with the intention of dishonestly inducing a person in his capacity as a public official to accept it is genuine and if so accepted, to dishonestly influence the exercise of a function of a public official contrary to subsection 145.1 (1) of the Criminal Code Act 1995. That was despite the fact that it was unnecessary to have a maintenance release for the purpose of doing his intended ground runs. Mr Bellamy was acquitted of the second charge related to the reckless operation of an aircraft under s. 29 of the Civil Aviation Act.
Mr Bellamy lodged an appeal to the County Court against the decision of the Magistrates’ Court on his conviction. That appeal was dismissed.
Assuming for the moment that Mr Bellamy never intended to fly his J2 gyroplane on
16 July 2010 as he claimed, and he only intended to conduct ground runs, a question arose regarding whether Mr Bellamy needed CASA approval to conduct those tests.
The first point I should make about these so-called taxi runs is that they did not involve normal taxiing of an aircraft around an airfield. They were in fact ground runs along the runway. While it may be questionable whether such operations constitute taxiing the aircraft, they certainly do not include flying it. Properly described, they should be referred to as ground operations. The issue which then arises is whether Mr Bellamy was required to hold any particular qualifications or approvals to conduct those ground operations.
Section 20AB of the Civil Aviation Act relevantly provides:
(1) A person must not perform any duty that is essential to the operation of an Australian aircraft during flight time unless:
(a)the person holds a civil aviation authorisation that is in force and authorises the person to perform that duty; or
(b)the person is authorised by or under the regulations to perform that duty without the civil aviation authorisation concerned.
The important point to note about s. 20AB is that while it refers to the operation of an Australian aircraft, it expressly states that the operation referred to is only an operation performed during flight time. Therefore, it cannot apply to a person conducting ground operations of an aircraft. The distinction is plain.
CASA, and particularly Mr English, referred to reg. 229 of the CAR which deals with the taxiing of aircraft. Relevantly, it provides:
(1) A person must not taxi an aircraft anywhere on an aerodrome if the person is not either a licensed pilot’s licence is endorsed for the particular type of aircraft concerned or a person approved by CASA in accordance with the terms and conditions of the approval.
The problem with reliance on reg. 229 of the CAR is that one needs to read the Regulation in its context, not simply divorced from the remainder of the provisions and in particular the Part of the CAR under which it falls. Regulation 229 was under Part 14 of the CAR which deals with Air Service Operations. Air service operations are essentially commercial operations which include aerial work, flying training, ambulance functions, carriage of goods for the purposes of trade, charter purposes and any other purpose substantially similar to those listed. It plainly does not refer to private operations. Division 3 of Part 14, under which reg. 229 is found, deals with the conduct of operations generally (which includes flying and ground) in the context of air service operations.
Also, Mr English in his witness statement referred to reg. 5.50 (1) of the CAR. It deals with approval to test aircraft. Relevantly, it provides:
(1) CASA may, in writing, permit the holder of a flight Crew licence, a special pilot licence or a certificate of validation to perform duties essential to the operation of an aircraft for which the holder does not hold an aircraft endorsement during a flight conducted for the purpose of:
(a)testing the aircraft; or
(b)carrying out an experiment in relation to the aircraft.
Once again, and with respect to Mr English, reg. 5.50 (1) refers only to the operation of an aircraft during a flight. Clearly, ground operations are excluded, for if it was intended to extend to ground operations, the regulations would have said so. Although Mr English formed the opinion that the minimum licence required by Mr Bellamy to authorise him to conduct ground operations was a private pilot (gyroplane) licence, and I suspect he is probably correct, that is not entirely clear.
As is stated in AC 21.10(0), the minimum qualification of pilot must hold to carry out the initial flight testing on experimental aircraft is a PPL with the appropriate endorsements. However, CAO 95.12.1 which was in effect in 2006, provides that for the purposes of
s. 20 AB(1)(b) of the Civil Aviation Act, a person is authorised to perform the duties essential to the operation of an aircraft to which this section applies without holding a flight crew licence provided they comply with the conditions set out in clause 4 of the CAO. Clause 4.1(c) of CAO 95.12.1 provides:
The exemption given by subsection 3 in relation to a gyroplane is subject to the following general conditions:
…
(c)the gyroplane must not be operated by a person as pilot in command unless the person holds a valid gyroplane pilot certificate and, subject to the other conditions set out in this section, operates the gyroplane in accordance with the privileges and limitations of that certificate;…
The reference to the gyroplane being operated by person as a pilot in command may be understood as a reference to flight operations. However, the nature of the operations appears to be unqualified and therefore it is also arguable, as was stated by Mr English but for different reasons, that in order to conduct the ground operations, Mr Bellamy was required to hold a valid gyroplane pilot certificate. He did not hold that certificate.
In 2013, after Mr Bellamy’s accident, subpart 64.C of the CASR came into effect. Subpart 64.C deals comprehensively with taxiing aeroplanes, irrespective of the intended operations to be conducted by any particular aircraft. It makes it clear, if it was not so previously, that persons who taxi aeroplanes need to hold certain qualifications or competencies to carry out that operation. Unfortunately, in my opinion, it does not go further and deal with ground operations generally.
Therefore, as far as CASA’s claim is concerned regarding Mr Bellamy’s unlawful ground operations of his J2 gyroplane, it is likely that those operations may have offended
CAO 95.12.1, although that is not certain.
I should also say something about CASA’s claim that Mr Bellamy’s conduct in the course of his ground operations constituted reckless operation of an aircraft.
Reckless operation of an aircraft
CASA’s action in the Magistrates’ Court included a charge said to be brought under
s. 29(1)(a) of the Civil Aviation Act which deals with offences in relation to aircraft. The particular subsection relied on by CASA as set out in the prosecution report appears to be incorrect. Section 29(1)(a) must be read together with subsection (b)(i) or (ii). It provides:
(1)The owner, operator, hirer (not being the Crown) or pilot of an aircraft commits an offence if he or she:
(a)operates the aircraft or permits the aircraft to be operated; and
(b)the operation of the aircraft results in:
(i) the use by the aircraft of an aerodrome in contravention of conditions specified under section 20; or
(ii) the aircraft being flown or operated in contravention of a provision of this Part (other than subsection 20A(1) or 23 (1)), or of a direction given or condition imposed, under such a provision.
Section 29(2) provides that strict liability applies to offences set out in (1)(b)(i) and (ii). That means, as far as a criminal prosecution is concerned, intent plays no part in determining culpability. It is assessed objectively.
An offence may also be committed in circumstances where the owner, operator or pilot of an aircraft operates the aircraft or permits aircraft to be operated and the operation results in a contravention of s. 20A(1) of the Civil Aviation Act (s. 29 (3)).
Section 20A provides:
(1) A person must not operate an aircraft being reckless as to whether the manner of operation could endanger the life of another person.
(2) A person must not operate an aircraft being reckless as to whether the manner of operation could endanger the person or property of another person.
This rather inelegantly phrased provision plainly has two limbs. The first is concerned with endangering the life of another person and the second is concerned with endangering the person, in the sense of the body of another person, or their property. The first limb, being a more serious offence, attracts a maximum penalty of 5 years imprisonment (s. 29(3)). The second limb, being less serious, attracts a maximum penalty of 2 years imprisonment (s. 29(1)).
It is also important to note that, having been charged under s. 29(1) of the Civil Aviation Act, Mr Bellamy could only have committed an offence if his operations of the J2 gyroplane offended the second limb of s. 20A, that is, endangering the body or property of another person. In other words, there was no claim that Mr Bellamy had endangered the life of another person.
The Magistrate dismissed the charge brought pursuant to s. 29(1) of the Civil Aviation Act. Nevertheless, the charge was noted in CASA’s Notice of Cancellation of Mr Bellamy’s PPL – aeroplane dated 16 March 2016. Despite the dismissal which, curiously, was referred to as a non-conviction of an offence, the notice of cancellation stated:
20. While you were not convicted of such an offence, I consider that your conduct on 16 July 2010 was also in breach of section 29(1) of the Civil Aviation Act 1988 (CAA), in that you were the owner, operator and pilot of the aircraft and the operation of the aircraft resulted in a contravention of section 20A(2) of the CAA, in that you operated the aircraft being reckless as to whether the manner of operation could endanger yourself or another person.
That statement is incorrect as a matter of law. A breach of s. 20A(2) of the Civil Aviation Act is not concerned with the operator endangering themselves. The expression the person in the second limb means the body of another person and is not a reference to the operator of the aircraft.
Further, with respect to CASA, this issue was tried by the Magistrate over a 10 day hearing period and the charge was dismissed. It is plainly incorrect and also inappropriate, in my respectful submission, for CASA to conclude that the operation of the aircraft on that occasion was reckless.
I appreciate that the standard of proof required to be established for conviction is different to that upon which CASA may act under reg. 269 of the CAR, the former requiring proof beyond reasonable doubt and the latter a finding on the balance of probabilities. Nevertheless, even on the lower standard of proof, CASA would have great difficulty in establishing a contravention of the Civil Aviation Act. CASA acknowledged this at paragraph 33 of its Notice of Cancellation. However, it relied on Mr Bellamy’s conduct in the course of his ground operations on 16 July 2010 for its finding that he failed in his duty as a PPL holder with respect to the safe navigation or operation of an aircraft
(reg. 269 (1)(c)) and that he was not a fit and proper person to be the holder of a PPL (reg. 269 (1) (d)).
Furthermore, CASA claimed Mr Bellamy’s reckless operation of the J2 gyroplane was conducted while he was not licensed to do so and that he knew of the dangers of such an action. As I have already pointed out above, while it is arguable that Mr Bellamy required a valid gyroplane pilot certificate to conduct those ground operations, that is not entirely clear. Given that Mr Bellamy relied significantly on AC 21.4(2) and in particular to the clauses in that document which state that a pilot must have a PPL with the appropriate endorsements to carry out initial flight testing on aircraft such as his, it also refers to the pilot conducting brake tests, engine operation and ground handling by conducting taxi tests before attempting flight operations. It does not suggest any qualification is required for those ground operations.
Claimed inadvertent flight
In the course of hearing this matter, it became apparent that Mr Bellamy had been given a video taken by another person, which showed the ground runs he conducted along the runway at Bendigo as well as the accident. CASA had not previously seen the video recording. Mr Bellamy was asked to produce the video which he subsequently did. I also made directions that the parties could provide submissions on that video evidence. Both did so and I have taken those submissions into account. Mr Bellamy also provided three statutory declarations from persons who witnessed the accident. All three witnesses had a clear view of the incident and all three said they were positive that the aircraft did not leave the ground and did not fly at any time. Those witnesses were not cross-examined.
I have viewed the video of the accident carefully, including a frame by frame analysis of the critical moments when it is clear Mr Bellamy had lost control of his gyroplane. CASA included two frames in hardcopy form attached to its submissions. Given the distance the aircraft has moved between the two images, it is reasonably obvious that they are not consecutive frames.
What the video discloses is that the first indication of a problem is the left rear wheel of the gyroplane tricycle undercarriage lifting and the aircraft tilting nose down and to the right. The right main wheel remains in contact with the runway as does the nose wheel which appears to buckle or compress at an angle under the sideways force applied to it. The aircraft then tips forward towards the right-hand side onto its nose with the rotors striking the ground and the aircraft almost rolling over and coming to a halt off the left hand side of the runway. The video does not give the appearance that Mr Bellamy at any stage intended to lift off the ground.
According to CASA, the video definitely demonstrates a high degree of coning (an upward flexing) of the main rotor. CASA claimed that disclosed practice takeoff runs rather than high-speed taxiing with a clear intent to bring the aircraft close to its takeoff parameters. CASA estimated the speed of the aircraft to be up to 45 knots. CASA also claimed that the video showed the aircraft to be briefly airborne on the final run leading to the crash. CASA submitted that Mr Bellamy must have been aware of having left the ground and that the video was deliberately suppressed because it contradicted his previous sworn evidence in court and the tribunal.
With respect, I do not think that it is either an accurate account of what is disclosed on the video or its interpretation. If Mr Bellamy were attempting to lift the aircraft off the ground, even slightly, the nose wheel would have been raised first, not one of the rear wheels. It is a fundamental principle of flight that one needs to increase the angle of attack of the wing, in this case the main rotor, relative to the air stream in order to increase lift so as to become airborne. Had he done so, the nose wheel would have lifted off the ground prior to any lift-off of the main wheels. In fact, despite the quality of the video making it difficult to observe, close observation shows that the nose wheel never did lift off the ground, nor did the right main wheel.
Also, the video clearly discloses the airfield windsock on a number of occasions. The windsock indicates almost no wind to begin with but with a slight crosswind from the left side of the runway on the run immediately before the one on which the accident occurred. On the final run, which concludes with the accident, the main rotor is clearly angled down towards the rear indicating it is providing a degree of lift. In his submissions regarding the video evidence, Mr Bellamy said that prior to the final run, he did four higher speed taxi runs with negligible lift on the main rotor giving him the sense that all was well to perform a limited lift taxi run to exercise the hydraulic rotor dampers and to confirm their proper adjustment. That change of angle of attack on the main rotor is visible on the video and is followed almost immediately by the aircraft’s left rear wheel lifting off the ground, pushing the aircraft onto its nose on its right hand side.
In other words, the main rotor disc was developing more lift on the left rear side of the aircraft than on the right side and particularly the right front. That is what appears to tilt the aircraft over on its undercarriage. The undercarriage does not have a particularly wide track, making it susceptible to such a rollover. The effect is similar to that of tipping over a wheelbarrow.
The event happened very quickly and it is readily apparent that Mr Bellamy did not have time to correct that situation. It is not possible to determine with any degree of certainty on the video evidence, or any other evidence which was before me for that matter, what may have caused the left rear wheel to leave the ground. By any standard, that reaction was unusual. It gives the appearance of the retreating blade developing more lift than the advancing blade, thereby creating more lift towards the rear left hand side of the gyroplane.
In fact, after viewing the video of the accident, I re-examined an article which Mr Bellamy attached to one of his statements titled Rotor Management. It appears to be an Australian publication which was provided by the ASRA titled ‘Close Call: Sport Aviation Special’. It describes a gyroplane landing in a stiff breeze coming straight down the runway. The pilot touches down and immediately pushes the stick (cyclic control) forward applying a little brake to slow down his roll and he commences a right turn into the taxiway without stopping. Subconsciously, the pilot moved the stick a little to the right. Almost instantly the left wheel of the tricycle undercarriage lifted off the ground and the machine toppled forward into the right like a wheelbarrow. The article then states:
Next thing he knows is that the whole machine is violently flung around, pieces of aircraft go flying past him and there is a terrible thumping noise over the motor. Finally everything stops moving. He is in one piece, but entangled in a heap of metal and broken fibreglass.
The description, save for the fact that the aircraft had slowed to taxi speed and was turning to the right resulting in a significant crosswind from the left, is identical to what happened to Mr Bellamy in his accident. The explanation given for the behaviour of the gyroplane was as follows:
As he landed the rotors still had flying rpm for the first few seconds and is consequently had sufficient lift to fly as well. By pushing the stick forward and tilting them to the right as he turned right meant that the rotors wanted to lift forward and to the right. The underneath of the rotor disk was also exposed to the wind which is now coming from his left side as he turned ‘cross wind’, and this gave the rotors sufficient lift to lift the left wheel off the ground which tilts the gyroplane over.
This exposed more rotor disc to the wind and created even more lift and tilting action.
By the time he started to react and move the stick back towards the left, the machine was leaning over by more than 9° which meant that however far he tried to move the stick to correct the problem, the rotors kept pulling him over, as the road head can only tilt to a maximum of nine degrees.
On the final run conducted by Mr Bellamy, the main rotor was in auto rotation, having been disconnected from the motor. Putting aside the possibility of a malfunction in the main rotor, it may be that Mr Bellamy, having initially moved the cyclic control slightly rearwards in order to increase lift on the main rotor, then pushed it forward fairly rapidly to reduce the lift so as to avoid becoming airborne. In doing so, it may have also moved slightly to the right thereby causing the main rotor to tilt downwards at the front right side. That would introduce extra lift on the rear left side of the gyroplane causing the wheel to lift and put significant extra sideways load on the nose wheel. The video quite clearly shows the nose wheel becoming distorted from that lateral pressure. Once that happened, that was no way of recovering the situation.
After viewing the video of the accident and noting the way in which the nose wheel responded when the left main wheel came off the ground, I sought to establish that what was seen on the video was not simply a distortion due to the angle at which the incident was filmed. To my surprise, I discovered that rollover problems were known to exist with the J2 gyroplane. An examination of articles posted on the Internet confirms that. A post on 7 March 2009 by Mr Jeff Jacobs states:
We touched down in the light crosswind, and despite the slow speed I lost directional control of the aircraft and rolled over on the runway…
It was the third J-2 landing rollover accident in three months, which as I recall was almost half the fleet built to that time.
FAA ordered modification to the J-2’s nose gear, and that summer the company flew me out to the factory at Lake Havasu where I flew with Bill Evans in a modified J-2.
In another post, dated 30 November 2013, Mr Gerry McArthur said:
It was noisy, short range and had some bad habits especially in crosswind. I had to rebuild one from Québec that was totalled because a cross wind caught it and it became uncontrollable, tipped over.
While I am conscious of the fact that CASA has not had the opportunity to respond to the material to which I have referred above, I have mentioned it only for the reason that it appears to corroborate what is apparent from the video which was in evidence. That is, the J2 gyroplane appears to have a stability problem while on the ground with the undercarriage oleos extended.
Mr William Cox made a written statement of evidence dated 12 July 2016 which was taken into evidence. He is employed by CASA in the position of Flying Operations Inspector Southern Region, a role he held since May 2001.
Mr Cox also said in his witness statement that in his role as a Flying Operations Inspector, he had some experience as an accident investigator. He admitted he was not gyroplane qualified. He was asked by CASA to provide a safety comment regarding Mr Bellamy’s accident. Mr Cox did not indicate he had viewed the video.
Mr Cox was of the opinion that the activity conducted by Mr Bellamy on 16 July 2010 was high risk for the following reasons:
(b)Mr Bellamy probably had no experience at high-speed taxi and stopping operations with the J2 gyroplane;
(c)Mr Bellamy had no qualifications or evidence of competency on that aircraft type indicating an ability to recover from a high speed taxi situation where the main rotor was producing some lift;
(d)Mr Bellamy’s focus on what he wanted to do rather considering the associated risks;
(e)the willingness of Mr Bellamy to taxi the aircraft along the runway at close to or exceeding a recognised lift-off speed; and
(f)the proximity of the aircraft apron and parked aircraft.
With respect to Mr Cox, it is unclear what evidence he relied upon in order to arrive at the conclusions I have set out above. To begin with, he admitted to not being gyroplane qualified let alone having had any experience with the McCulloch J2. As I have already indicated, that gyroplane is something of a hybrid between a helicopter and a gyroplane. Furthermore, it is simply not possible from the video evidence to allow me to estimate the speed at which the gyrocopter was travelling in the course of the runs conducted by Mr Bellamy. In the video, the gyrocopter is travelling from left to right at an oblique angle towards the camera and, as is obvious from the very jittery video, it is taken from considerable distance away from the runway. Although CASA claimed the aircraft was travelling at about 45 knots, it is not possible to come to that conclusion from the angle of the video.
I have obtained a copy of the original McCulloch J2 gyroplane operator’s manual which states that the takeoff speed of the gyroplane is about 30 mph. That is the equivalent of approximately 26 knots. CASA also provided me with what is described as an Operations Manual from the Hoxton Park Flying School regarding the operations of the Super J-2 gyroplane. The operations manual for that aircraft describes lift-off at 41 knots. That may be where CASA has obtained the figure of about 45 knots. However, that aircraft is a modified J2 gyroplane, not the standard model which Mr Bellamy owned. While I accept that speed is a relative concept, a ground run at around 26 knots along a 1200 m runway cannot properly be described as a high-speed ground run. Also, it is significantly less than the speed estimated by CASA to have been 45 knots, particularly as the aircraft appeared not to have reached takeoff speed in any event.
I also disagree with Mr Cox’s description of such runs being the equivalent of an aborted takeoff. Given the relatively low speed of the gyroplane over the ground, and the considerable length of the runway available (1220 m), there appeared to be no basis for consideration to be given to an abrupt stopping of the machine. That is usually what is required when conducting an aborted takeoff from a limited length runway. In Mr Bellamy’s case, it was simply a case of closing the throttle and allowing the machine to slow down as a result of aerodynamic drag without using the brakes until reaching normal taxi speed.
Furthermore, the operating manual for the J2 describes the landing speed at approximately 25 mph with the nose in a slightly high attitude. Brakes are then applied if needed. The operations manual describes a comfortable full-stop landing within 75 feet (about 23 metres). Without power applied, it will rapidly slow down, probably to a standstill.
As for Mr Cox’s opinion that fast taxi operations in an aircraft require a person had judgement and skill to enable them to come safely to a sudden stop, the requirement to safely stop the aircraft must take into consideration the type of aircraft and its performance. I have no doubt that training in abort manoeuvres in relatively high-speed aircraft, including multi-engine aircraft with the use of reverse thrust, is important. To suggest that it should apply equally to the J2 gyroplane fails to account for the vastly different performance parameters.
Mr Cox also referred to the fact that Mr Bellamy did not appear to consider the proximity of the aircraft apron and parked aircraft when conducting his ground runs. He was critical of Mr Bellamy’s response at the show cause conference when Mr Bellamy told him that a collision with parked aircraft on the apron was impossible because of the distance away from the runway, which he estimated that nearly 200 m. Mr Cox suggested that response was unsatisfactory due to Mr Bellamy’s lack of familiarity with the handling characteristics of the gyroplane coupled with what he said was the high-speed taxi runs.
With respect to Mr Cox, it is he who appears to be unfamiliar with the handling characteristics of the J2 gyroplane. Furthermore, having viewed the video, it is clear that the distance between where the video was taken and the runway is considerable, consistent with Mr Bellamy’s estimation of some 200 – 300 m. At a ground speed of some 26 knots when power is reduced to idle, it is impossible to see how the J2 posed any threat to either persons viewing his activities or aircraft parked on the apron.
I accept that in one of the earlier runs conducted by Mr Bellamy, a light aircraft can be seen holding short of the 17/35 runway, the holding point being just prior to the 23/05 cross runway. Mr Bellamy was conducting his runs from the north to the south, that is, on runway 17. By the time he had reached the holding point, he had visibly slowed the J2 gyroplane. The light aircraft is not seen in any other runs which were videoed. Presumably, after Mr Bellamy passed the holding point, the aircraft took off to the north. In fact, it appears Mr Bellamy was only using runway 17 from its threshold up to the cross runway for his ground runs. He was then taxiing back to the 17 threshold on each occasion. There was no evidence that his operations in any way created a hazard for the aircraft at the holding point.
GROUNDS FOR CANCELLATION OF PPL – AEROPLANE
The grounds for cancelling Mr Bellamy’s PPL – aeroplane are those described in
reg.269 (1) (c) and (d) of the CAR. They provide:(1) Subject to this regulation, CASA may, by notice in writing served on the holder of a licence or certificate or an authority, vary, suspend or cancel the licence, certificate or authority where CASA is satisfied that one or more of the following grounds exists, namely:
…
(c)that the holder of the licence, certificate or authority has failed in his or her duty with respect to any matter affecting the safe navigation or operation of an aircraft;
(d)that the holder of the licence, certificate or authority is not a fit and proper person to have the responsibilities and exercise and perform the functions and duties of a holder of such a licence or certificate or an authority; or…
When determining whether a pilot licence should be suspended or cancelled, CASA must bear in mind that the purpose of such action is not to punish the pilot, but rather to ensure the safety of air navigation. As is stated in s. 9A of the Civil Aviation Act:
(1)In exercising its powers in performing its functions, CASA must regard the safety of air navigation as the most important consideration.
Mr Bellamy’s PPL is for an aeroplane which, as defined in reg. 2 of the CAR, is a reference to a power-driven heavier-than-air aircraft deriving its lift in flight chiefly from the aerodynamic reactions on surfaces remaining fixed under given conditions of flight. The McCulloch J2 is a gyroplane which is a heavier-than-air aircraft … supported in flight by the reaction of air on rotors that are not power-driven but rotate when the aircraft is moving because of the action of air.
Given that Mr Bellamy’s problems arose as a consequence of the restoration of his J2 gyroplane and his subsequent ground operations when testing that aircraft, in order to justify cancellation of his fixed wing PPL, CASA must demonstrate that Mr Bellamy’s behaviour would, if he retained his fixed wing licence, nevertheless translate equally to that licence. Otherwise, the cancellation of his fixed wing licence would constitute a penalty.
Failure of duty regarding safe operation of aircraft
The grounds relied on by CASA under this heading may be summarised as follows:
(a)the issue by Mr Bellamy of a maintenance release when not authorised to do so;
(b)his criminal conviction in the Magistrates’ Court of knowingly using a false document with the intention of dishonestly inducing a person in his capacity as a public official to accept it as genuine;
(c)operating a gyroplane while not holding a valid gyroplane licence;
(d)conducting maintenance on an aircraft when he was not the holder of a valid aircraft maintenance engineer licence;
(e)taxiing an aircraft without approval to do so;
(f)operating an aircraft, being reckless as to whether the manner of operation could endanger himself or another person; and
(g)operating an aircraft in such a manner that he was likely to injure himself or others, or damage the property of himself or others.
Having explained in some detail the circumstances which led to Mr Bellamy testing his J2 gyroplane by conducting ground runs at Bendigo airfield culminating in his accident, it should be reasonably clear that errors were made by Mr Bellamy and by CASA. In my opinion, those errors were compounded by the fact that the regulatory material dealing with the certification of an aircraft which had formerly held type certification which was subsequently withdrawn; and the aircraft then having undergone restoration and some modification, was not at that stage completely clear. Significant steps have subsequently been taken to alleviate any confusion by the full development of Part 21 of the CASR.
The state of the various legislative instruments and advisory circulars which Mr Bellamy relied upon, and difficulties he had with obtaining definitive answers from various CASA personnel explain, to some extent, but do not excuse Mr Bellamy’s conduct by any means. Nevertheless, I cannot see similar circumstances arising out of his holding a PPL – aeroplane. All of the issues which arose out of the restoration and testing of the J2 gyroplane are now in the past, the aeroplane having been substantially destroyed.
While plainly I cannot go behind the conviction recorded against Mr Bellamy for knowingly using a false maintenance release, the circumstances in which this arose appear to be linked to his firm belief, albeit erroneous, that being responsible for the maintenance of that aircraft meant he could in fact perform maintenance and sign-off a maintenance release. A maintenance release must be signed-off before the aircraft can be flown. There was no such regulatory requirement for the purpose of conducting ground operations. Mr Bellamy never intended to fly the aircraft but only to conduct ground operations. The evidence before me supports that contention.
Mr Bellamy had discussions with CASA officers regarding test flying and had made arrangements for a test pilot to conduct that operation. The video evidence plainly discloses that Mr Bellamy did not make any attempt to fly the aircraft. This issue is highly unlikely to arise again, particularly in the context of Mr Bellamy exercising the privileges of a PPL – aeroplane. It arose because of the peculiarities of seeking to have his J2 gyroplane issued with some form of airworthiness certificate. In fact Mr Bellamy was convinced that the aircraft had been granted an experimental certificate even though a document in that form had not issued from CASA.
The authorisation to conduct taxiing or ground operations of a private aircraft was confused by CASA. I am unable to find any regulation which was valid in 2012 dealing with such operations of private aircraft. Regulation 229 of the CAR only applies to air service operations and reg. 5.50 applies to testing the aircraft during flight. Nevertheless, my research has revealed that Mr Bellamy may have breached CAO 95.12.1 2006. For the purposes of assessing whether Mr Bellamy’s PPL – aeroplane should be cancelled, I have assumed that he has breached that CAO.
CASA also appears to have misunderstood the application of ss. 29(1) and 20A of the Civil Aviation Act. The criminal prosecution was brought on the basis of a breach of
s. 20A(2) only. That subsection does not deal with endangering the life of another person. It only deals with endangering the person (understood to mean the body) or property of another person. It does not, as CASA contended, include Mr Bellamy endangering himself or his property. That charge against Mr Bellamy was dismissed. In my opinion, it cannot now be said by CASA that the operation of Mr Bellamy’s J2 gyroplane in the course of ground runs along the runway was reckless.
Even if I am wrong about whether CASA may rely on the way in which Mr Bellamy conducted his ground operations on 16 July 2010 for the purpose of its cancellation decision, I would find that those operations do not establish a sound basis for cancellation of his PPL – aeroplane. First, in conducting those operations Mr Bellamy did not breach reg. 229 of the CAR. Secondly, a maintenance release was not required to have issued because the aircraft was not to undergo a flying operation. Thirdly, it cannot be said that Mr Bellamy was reckless as to whether the manner of operation could endanger the person or property of another person. Injury to himself or his property is not relevant consideration. Finally, assuming he did breach CAO 95.12.1 2006, there was no evidence that he intentionally did so. In fact he seems to have taken some considerable effort to comply with all legislative requirements, despite his misunderstandings.
In my opinion, as far as the accident which occurred on 16 July 2010 is concerned, Mr Bellamy was simply very unlucky. The J2 gyroplane, as originally constructed, plainly had stability problems on the ground and in crosswind situations. The cause of that stability problem appears to be threefold.
First, when running along the ground at or near takeoff speed with the cyclic control moved slightly aft to take weight off the undercarriage, due to the rotation of the main rotor in an anti-clockwise direction when viewed from above, coupled with the forward motion of the aircraft, there appears to be a tendency for the gyroplane to experience some gyroscopic precession resulting in increased lift being experienced on the left side of the aircraft (that is, at 90° in the direction of rotation of the rotor). In fact, the Hoxton Park Flying School Type Handling Notes for the J2 Gyroplane states the following in respect of a normal takeoff: Hold cyclic slightly to the left and use rudder to maintain directional control. Any crosswind from the left side of the aircraft will exacerbate that tendency.
Secondly, the relatively narrow undercarriage may result in the left main wheel rising off the runway while the right main wheel and nose will remain on the ground. Finally, the J2 gyroplane was known to experience nose wheel stability problems. If the pilot, in an attempt to correct the left main wheel rising from the runway, pushes the cyclic control forward, that will exert lateral pressure on the nose wheel and result in a classic wheelbarrow effect. By that time, a rollover cannot be avoided.
While the end result was a fairly spectacular looking accident, other than slight damage to the edge of the runway which was struck by the main rotor, no other person was physically endangered nor was their property endangered.
Knowing now what Mr Bellamy must know regarding the J2 gyroplane’s stability problems, it is, in my opinion, unrealistic to form the view that he has not learnt much from this experience. Taking into account all of the circumstances which led to Mr Bellamy having an accident in his J2 gyroplane, and with the benefit of hindsight, while it is not possible to find that Mr Bellamy has not failed in his duty with respect to any matter affecting the safe operation of the gyroplane, there are a number of mitigating circumstances which must be taken into account.
Furthermore, all of those circumstances do not point to a translation of that failure to Mr Bellamy repeating the offending conduct in relation to his PPL – aeroplane. For example, there was no blatant or wanton disregard of statutory provisions. There was some misunderstanding. The circumstances arose solely from the restoration and attempt to certificate the J2 gyroplane. Accordingly, I find that this limb of reg. 269, while enlivening CASA’s discretion to cancel his PPL – aeroplane, should not form the basis of a cancellation decision in Mr Bellamy’s case.
Fit and proper person
The expression fit and proper person takes its meaning from the context in which it is applied. As the High Court of Australia (Toohey and Gaudron JJ) said in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321, at 380:
The expression “fit and proper person”, standing alone, carries no precise meaning. It takes its meaning from its context, from the activities in which the person is or will be engaged and the ends to be served by those activities. The concept of “fit and proper” cannot be entirely divorced from the conduct of the person who is or will be engaging in those activities. However, depending on the nature of the activities, the question may be whether improper conduct has occurred, whether it is likely to occur, whether it can be assumed that it will not occur, or whether the general community will have confidence that it will not occur. The list is not exhaustive but it does indicate that, in certain context, character (because it provides indication of likely future conduct) or reputation (because it provides indication of public perception as to likely future conduct) may be sufficient to ground the finding that a person is not fit and proper to undertake the activities in question.
The activity with which one needs to be concerned in Mr Bellamy’s case is the operation of a fixed wing aeroplane while exercising the privileges of his PPL. As I have already stated, there is no evidence before me which suggest that Mr Bellamy acted deliberately in contravention of any legislative provisions dealing with the operation of aircraft generally. In fact, Mr Bellamy appeared to be at pains to follow regulatory materials even though he plainly misconstrued some provisions. That includes the conduct leading to his conviction regarding the maintenance release document.
Furthermore, taking into account the context in which his conduct occurred, particularly the problems with certification of his J2 gyroplane and its subsequent ground testing, there is nothing in that conduct which points to the fact that Mr Bellamy will not be more careful to follow legislative provisions regarding the operations of a fixed-wing aircraft.
Mr Bellamy’s criminal conviction in respect of the issue of the maintenance release arose out of a genuine misunderstanding by Mr Bellamy of the need to have some documentation in place prior to him conducting ground operations. While of course I cannot go behind the conviction, the circumstances which gave rise to it may be considered. He did not sign that maintenance release form. He did sign for the daily inspection which, ordinarily, he would be authorised to do (see Schedule 8 of the CAR, item 22). Therefore there was no suggestion that he was trying to mislead CASA into believing any maintenance work which had been done on the aircraft had been signed off by a person authorised to do so. In fact the maintenance release was irrelevant to Mr Bellamy’s intended ground operations of the J2 gyroplane.
I did not have any evidence before me indicating that Mr Bellamy’s operations of that aircraft as holder of a PPL, which he has had since 13 August 2002, attracted the attention of CASA. That being the case, I find that there is no sound basis for coming to the conclusion that Mr Bellamy is not a fit and proper person to hold a PPL – aeroplane.
CONCLUSION
Despite Mr Bellamy having had a very unfortunate experience in his attempt at restoration and testing his J2 gyroplane, I have found that was no evidence upon which CASA can soundly base a suspension of his PPL. All of the difficulties which Mr Bellamy encountered, including his conviction in the Magistrates’ Court, stemmed from his gyroplane involvement. I had no evidence before me that similar circumstances would arise in the future as far as his fixed-wing operations are concerned. Mr Bellamy did not blatantly ignore the advice given to him by CASA and he appeared to have made significant attempts to comply with all legislative requirements as they existed at the time, which were not as clear as perhaps they could have been. I have found that he is a fit and proper person to hold the PPL – aeroplane.
I find that the decision made by CASA on 16 March 2016 cancelling Mr Bellamy’s
PPL– aeroplane was not the preferable decision. I set aside that decision. Therefore, Mr Bellamy’s PPL – aeroplane remains valid and should be treated as never having been cancelled. CASA’s records regarding Mr Bellamy should be amended accordingly.
124. I certify that the preceding 123 (one- hundred and twenty-three) paragraphs are a true copy of the reasons for the written reasons herein of Egon Fice, Senior Member
[sgd].......................................
Associate
Dated 29 November 2016
Dates of hearing 11 August 2016 - 12 August 2016 Applicant In Person Counsel for the Respondent Mr P Ward Solicitors for the Respondent Civil Aviation Authority,
Legal Services Group
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