Bobridge v Choppair Helicopters Pty Ltd

[2016] FCCA 2301

FEDERAL CIRCUIT COURT OF AUSTRALIA

BOBRIDGE v CHOPPAIR HELICOPTERS PTY LTD & ANOR [2016] FCCA 2301

Catchwords:
INDUSTRIAL LAW – Employee alleging multiple contraventions of pilots’ awards – no dispute awards applied to almost all of the employment – employer alleging ignorance of the awards – whether employer knowingly involved in contravention within s.550 Fair Work Act 2009 – whether employee was a “supervising pilot” both in Northern Territory and in Victoria – whether employee employed by first respondent in a different company when employed in Victoria – whether pilot’s award or clerk’s award applicable – most contraventions in Northern Territory not disputed – whether applicant was employee or independent contractor at time of helicopter accident – cross-claim alleging pilot negligence – competing expert opinions – negligence not established – claims substantially made out and cross claim dismissed.

Legislation:

Fair Work Act 2009, ss.545, 539, 550

Cases cited:
James Turner Roofing Pty Ltd v Peters (2003) 132 IR 122
Poletti v Ecob (No 2) (1989) 31 IR 321
Hollis v Vabu (2001) 207 CLR 21
Fair Work Ombudsman v Devine Marine Group Pty Ltd [2014] FCA 1365
Potter v Fair Work Ombudsman [2014] FCA 187

Applicant: EMMA BOBRIDGE

First Respondent: CHOPPAIR HELICOPTERS PTY LTD

Second Respondent: MICHAEL VAN DER ZYPP

File Number: MLG 1919 of 2014

Judgment of: Judge Burchardt

Hearing date: 1, 2, 3, 4 and 5 August 2016

Date of Last Submission: 5 August 2016

Delivered at: Melbourne

Delivered on: 5 October 2016

REPRESENTATION

Counsel for the Applicant: Mr Champion

Solicitors for the Applicant: Robinson Gill

For the Respondents: Mr Van der Zypp

ORDERS (As Corrected)

1. The First Respondent pay the Applicant $153,825.36, less any amounts paid pursuant to order 4 below.

2. The Respondents’ cross claim is dismissed.

THE COURT FURTHER ORDERS THAT:

1. The matter be adjourned to 23 November 2016 at 10.15 am in Melbourne.

2. The Second Respondent pay the Applicant $57,644.

3. The Applicant is to file and serve written submissions by the 25 October 2016.

4. The Respondents’ are to file and serve written submissions by the 15 November 2016.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

No. MLG 1919 of 2014

EMMA BOBRIDGE

Applicant

And

CHOPPAIR HELICOPTERS PTY LTD

First Respondent

And

MICHAEL VAN DER ZYPP

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. In this matter the applicant, Emma Bobridge seeks compensation pursuant to s.545 of the Fair Work Act 2009 (“the Act”) arising out of alleged contraventions of the Helicopter Pilots (General Aviation) Award 1999 (“Helicopter Pilots Award”)  and the Air Pilots Award 2010 (“Air Pilots Award”). No issue is raised by the respondents that the particular contraventions of the awards asserted by Ms Bobridge, if established, constitute contraventions of civil penalty provisions within the meaning of s.539 of the Act and it is not necessary, therefore, to deal with that matter further.

2. The applicant seeks compensation in the sum of $160,306.86 in total as a result of 20 discrete contraventions of the award provisions, together with the imposition of civil penalties for those breaches.  The applicant has submitted, and the respondents have not taken issue, that it is appropriate to leave the question of any quantification of penalties until after the primary issue of liability is determined.

3. The respondents cross-claim $154,940 as damages for negligence by Ms Bobridge on 2 November 2013, on which date she was piloting a helicopter owned by a third party and the vehicle was written off following an accident.  There are also unquantified claims for loss of reputation and profit.

4. For the reasons that follow, I am satisfied that most, but not all, of Ms Bobridge’s 20 claims are made out and that the cross-claim should be dismissed.

Agreed matters/matters in dispute

1. Although, as is apparent from the fact that the case took five days to hear, there is much in dispute between the parties, a number of matters are not in issue.  First, there is no question that the Helicopter Pilots Award governed Ms Bobridge’s employment by the first respondent from its inception in September 2008 until November 2009.  Equally, it is agreed on the pleadings that on and from 1 January 2010 the Air Pilots Award applied to the first respondent’s operations.

2. There is a dispute about whether the work performed by Ms Bobridge from 1 February 2010 until 25 October 2013 at the first respondent’s premises in Moorabbin was indeed properly characterised as work performed under the Air Pilots Award or whether it should more properly have been classified under the relevant clerks award.  It is common ground that Ms Bobridge resigned her employment, her notice concluding on 25 October 2013, and thereafter flew a number of flights for the first respondent or for other entities or persons.  There is a dispute as to whether the applicant was a casual employee of the first respondent or, alternatively, an independent contractor until the accident on 2 November 2013.

3. It should be noted that in final written submissions, Mr Van der Zypp, who represented both respondents asserted that until these proceedings he was not aware there was any award to which he ought to be adhering and his written submissions on the second page assert relevantly:

   “Save the supervisory allowance, away from home allowance and meal allowances, I have given evidence that I do not dispute that I may owe these amounts to Ms Bobridge pursuant to the award.  In the interests of saving the Court’s time, I have conceded these aspects during my evidence.”

   Notwithstanding this, it will be necessary to deal with each of Ms Bobridge’s 20 individual claims, separately as there are a number of nuances in them.

4. It is clear from the evidence that it has been the practice of the first respondent and, indeed, possibly more widespread in the industry generally, that persons who have obtained a minimal level of flying experience as helicopter pilots take positions in the Northern Territory, relevantly for these purposes at Ayers Rock (Yulara), (like the parties, I have used both names), and Kings Creek Station in order to improve their flying hours and experience.  This is what happened to Ms Bobridge.  According to Mr Van der Zypp’s unchallenged affidavit material, she took her first flight in a helicopter as a pilot with Mr Van der Zypp in 2007.  By 2008 she was clearly ready to advance her career as a pilot, a career to which it would seem that she came perhaps later in life than some.

5. At this point, it is appropriate to turn to the parties’ affidavit material.

The first affidavit of Ms Bobridge sworn 4 March 2016

1. Ms Bobridge deposed to being a licensed commercial helicopter pilot and to the fact the first respondent (“Choppair”) operates a commercial helicopter business with operations in Moorabbin, Victoria and the Northern Territory.  She deposed, as is agreed, that Mr Van der Zypp is the sole director of Choppair.

2. Having set out an outline of her employment and having referred to the accident on 2 November 2013, the applicant detailed her 20 various discrete claims.  At paragraph 14 she deposed:

   “I have prepared a series of 20 Excel spreadsheets which contain the calculation of my entitlements as to each of my claims … I have set out an explanation of the method of calculation in each spreadsheet in this affidavit.”

   This assertion is important because, subject to some exceptions with which I will deal in terms when I assess each of the claims, the spreadsheets were not the subject of material challenge by Mr Van der Zypp.

3. It should be noted that I permitted Mr Van der Zypp to appear for the first respondent.  He made it clear during a directions hearing that he did not propose to engage lawyers on the basis of lack of funds (although the respondents were legally represented during the earlier part of the proceedings and, more particularly, when pleadings were being prepared).  Although, of course, it is well-established that corporations should not be permitted to be represented by a person who is not a qualified lawyer, given that Mr Van der Zypp is a respondent against whom accessorial liability was pressed and was therefore fully entitled to appear in any event on his own behalf, there seemed no utility in seeking to refuse Mr Van der Zypp permission to represent the first respondent.

4. Ms Bobridge introduced Mr Van der Zypp in more detail at paragraphs 17 and 18 of her affidavit.  She deposed, and it seems clear that it was the case, that although the first respondent is incorporated, Mr Van der Zypp was, as the sole director, clearly for all practical effects and purposes the employer.  Ms Bobridge deposed at paragraph 17:

   “… At the outset of my employment I agreed with Mr Van der Zypp to travel from my Victorian home to work in the Northern Territory.  He said that was the basis on which everybody started in the industry.  Mr van der Zypp said to me that the rate of pay was $15,000 based on a 6 day week and he provided the accommodation in the Northern Territory.  Mr van der Zypp told me that no allowances were paid.  I asked if I could provide my own accommodation because I had three children.  He said no.  I did not discuss awards with him at that time. 

   Much later, in 2010 or 2011 when I returned to Melbourne, I discussed awards with him.  We had more than one conversation about awards.  I said to him that Choppair, as a business, needed to address the requirements of the award or not paying award entitlements would come back to bite him.  He responded that he may as well shut down the business.  In conversations with me, Mr Van der Zypp refused to acknowledge that the award was relevant to him.”

5. Ms Bobridge went on to detail the commencement of her employment in the Northern Territory with Choppair.  She had completed flight training by 16 July 2008 and formally obtained her commercial helicopter pilot’s licence on 31 July 2008.  Following discussions shortly thereafter with Mr Van der Zypp, it was agreed she would go to Ayers Rock for two weeks on trial.  The business traded as Ayers Rock Helicopters and had bases at Yulara and Kings Creek.  Having spent 10 days at Ayers Rock, Ms Bobridge returned to Melbourne and did a check ride with Mr Van der Zypp (a proficiency check).  Mr Van der Zypp offered Ms Bobridge ongoing full-time employment as a line pilot in the Northern Territory and she commenced in that capacity on about 20 September 2008 (some minor discrepancies as to the September dates between the parties are not, in my view, material).

6. Ms Bobridge deposed to working in the Northern Territory from 20 September 2008 until approximately November 2009 piloting tourist flights and also doing some mining survey work, aerial photography and rescue work when required.  Mr Van der Zypp was the chief pilot and chief flight instructor of Choppair throughout. When she first arrived at Ayers Rock Ms Bobridge’s supervisor was Mr Edward Connellan who was, in turn, under the supervision and direction of Mr Van der Zypp.

7. Ms Bobridge went on to depose to the requirement to keep a record of flight and duty times and also a pilot’s log book.  She referred further to the roster for work in the Northern Territory as a six day week, with each pilot having one day off.  Ms Bobridge annexed a document EB-5A to her affidavit, being a copy of a document entitled “Enterprise Bargaining Agreement - Ayers Rock Helicopters and Kings Creek Helicopters”, ostensibly between an employee, Mr Michael Daverington, and Choppair.

8. Although Mr Van der Zypp complained of the applicant having a copy of this document and professed at times some doubt as to whether it was really a document of Choppair, it is clear, for reasons to which I shall come, that it was indeed a document regarded by the first respondent and Mr Van der Zypp as being applicable to those who worked in the Northern Territory.  Its terms repay some attention.  Amongst the terms set out in the agreement are:

   “1. Choppair Helicopters uses Ayers Rock Helicopters & Kings Creek Helicopters as a place of employment for newly licensed pilots.

   2. It is advantageous for both Choppair Helicopters and the Student / Employee to be able to have somewhere to fly upon obtaining a Commercial Helicopter Licence.

   3. Neither the Employer nor the Employee offers any long-term commitments regarding employment at Ayers Rock Helicopters or Kings Creek Helicopters.  The employee, in consultation with the Base Manager, is encouraged to look for other flying jobs to help further his or her career and to ensure a turnover of pilots of both operations.

   4. …

   5. The employee may be transferred between the bases at Ayers Rock, and Kings Creek as and when required.

   6. The employment with Ayers Rock and Kings Creek Helicopters will be as such:

   ·The Employee is employed in a multi-role position

   ·Employees are employed as a part-time pilot, part-time office person and part-time helicopter loader and courtesy bus driver

   ·Rosters will vary from week to week.

   ·The working week will be 6 days.  The Chief Pilot in Melbourne or his delegate will work out the roster.

   ·The length of the working day varies with the position and the amount of flights. Twelve (12) hour days are commonplace, especially in Summer.  The pilot can only be rostered for a maximum of 11 hours in any day and is not to be rostered for, or exceed the legal flight and duty time limitations as detailed in CAO 48 and CAO 48.1

   7. The employee is entitled to a wage of $300 a week gross.

   8. The employee is entitled to four weeks Annual Leave …

   9. …

   10. The employer will pay 9% superannuation to Mercantile Mutual on the employees behalf.

   11. The employee will pay an equal share in the accommodation at Ayers Rock together with any other staff.  However, the employer may, at its discretion, assist with the payment of the rent.  Rent is not required at Kings Creek Station.

   12. …

   13. The employee at Ayers Rock and/or Kings Creek Station will pay for, or already have an endorsement on the Bell 206 Jetranger or Robinson R44, including 5 hours in command.”

9. After setting out 16 paragraphs of numbered conditions, the agreement ends with the words:

   “I agree with and accept these terms of my employment.  I understand fully the position offered to me and I fully realise and accept that this agreement negates any entitlement or wage described under any Industry Award Agreement.”

10. Having gone on to refer to the operations manual required to be maintained by Choppair, Ms Bobridge referred to the lengthy hours she worked in the Northern Territory, noting at paragraph 29 that the pick-up time for sunrise flights was 30 minutes prior to sunrise and sunset flights was 60 minutes prior to sunset.

11. Ms Bobridge then went on to detail her various claims under the Helicopter Pilots Award.  I will return to these matters in more detail when I consider each individual claim.  It should be noted that Ms Bobridge began at a salary of $15,600 (exactly commensurate with the $300 per week described in the EBA-5A) and that this was raised at the end of 2008 to $18,000.  She asserted that this was commensurate with her becoming a supervisory pilot at Yulara and Kings Creek from February 2009 until November 2009.  The affidavit sets out also the methodology by which Ms Bobridge calculated the various alleged underpayments.  I repeat again that Mr Van der Zypp did not, by and large, challenge these matters.

12. Ms Bobridge then went on at paragraph 144 and following to refer to her claims under the Air Pilots Award.  As earlier indicated, Ms Bobridge claims underpayment for performance of her duties in her capacity as pilot.  The respondents claim that she was not employed by Choppair at all but by an entity I shall call Air Melbourne and not as a pilot but as a clerical assistant.

13. Ms Bobridge deposed that she was an employee of Choppair between February 2010 until 25 October 2013.  She referred at paragraph 146 of her affidavit to the fact that her PAYG certificates for the financial years ending 30 June 2010 to 30 June 2014 were each issued by Choppair and not by Air Melbourne (see annexure EB-15).  It should be noted that the first of these PAYG summaries, recorded a period of employment (erroneously) as 04/02/2010 to 30/06/2010.  The record keeping of Choppair was obviously not wholly exemplary because the pay periods ending 30 June 2011 and 30 June 2012 continued to record Ms Bobridge’s address as Yulara in the Northern Territory and it was only changed to her true home address for the tax year ending 30 June 2013.

14. Payslips continued to issue during this period to the applicant which had Choppair’s ABN number on them.  Annexures EB-16 and EB-17 confirm not only the payslips were issued by The Helicopter Group (Aust) (a business name of Choppair) but that the ABN quoted thereon is indeed that of Choppair and not that of Air Melbourne.

15. Ms Bobridge went on to depose at paragraph 149 that she worked at the Moorabbin base of Choppair on a daily basis.  It is common cause that was Choppair’s office and not the office of Air Melbourne, although Mr Van der Zypp had things to say about this to which I shall come.

16. Ms Bobridge annexed as EB-18 an annual return supplied to the Civil Aviation Safety Authority (“CASA”) in relation to Choppair’s Air Operator Certificate (“AOC”).  The annual return, dated 31 January 2012 under the heading “Management Personnel” details Mr Van der Zypp as the company director and under the heading “Other Management Personnel” is Ms Bobridge.  All other relevant management positions were filled by Mr Van der Zypp.  The same document also details Ms Bobridge as a flight crew member employed in “(the) last 12 months to 30 June this year”.

17. Ms Bobridge went on to deal with Air Melbourne at paragraph 151 in the follow terms:

    “Air Melbourne Pty Ltd. (“Air Melbourne”) was a company operated by Mr van der Zypp with Mr Borg and Mr Paul Banks.  It was a company that owned helicopters and had various aviation contracts.  It had an office in South Yarra.  It had secured the Telstra contract and the DSE contract I refer to below.  It did not have an AOC.  Choppair operated helicopters Air Melbourne owned.  When I returned to Melbourne a proposed project was for me to develop a business for helicopter flights from Air Melbourne’s Yarra Helipad, adjacent to the World Trade Centre.  I visited various businesses to try to promote this business.  A business card was developed for me which referred to me as “Pilot/Business Development Manager”.  I later learned that Choppair invoiced Air Melbourne for work I performed.  Now produced and shown to me and marked with the letters “EB-19” is a copy of business cards I used.  This project never really got underway before 25 October 2013.  For example, there was an exchange of emails between Mr Borg and Ms Sandra Hillas on 20 September 2013 which referred to me being offered a job at Air Melbourne.  Now produced and shown to me and marked with the letters “EB-19A” is a copy of this email correspondence.”

18. Annexure EB-19A is not insignificant.  It is an email exchange between Ms Hillas and Mr Borg dated 20 September 2013.  It is not necessary to set out its terms but it is clear that the letter from Ms Hillas contemplates that a letter of offer might be issued to Ms Bobridge on 20 September 2013 in the role of operations manager/business manager role at an initial salary of $80,000 per year.  I note that the business appears to have involved what is described by Ms Hillas as “the Heli-Express Service” and further contemplated employing Ms Bobridge as a pilot.  The response from Mr Borg, one of the directors of Air Melbourne, asserts:

    “I already told her we would discuss it next week so I think if we act now it will look odd.  I still want to run it past Michael before we offer it to her to prevent Michael getting annoyed that we didn’t consult with him on his opinion.”

1. Ms Bobridge then went on to address the anticipated argument of the respondents that she was not employed principally as a pilot at paragraphs 152 - 162.  Having noted that although she performed some work for Choppair in January 2010 she made no claim arising therefrom, Ms Bobridge went on to observe at paragraph 154 that at all times between February 2010 and October 2013 she was the holder of a commercial pilot’s licence.  She deposed:

   “I was required to hold this licence as part of my job because I was flying helicopters.  Flying helicopters was my first priority.  Aside from Mr van der Zypp I was the only pilot of Choppair permanently at Moorabbin.  If there was a booking for a scenic flight ordinarily I would do it.  As part of being a pilot I maintained my Dangerous Goods Certificate and ASIC is a certificate which secures access to secure areas at airports.  Now produced and shown to me and marked with the letters “EB-20” is a copy of my Dangerous Goods Certificates and ASIC certificate renewed by annually.  Choppair also provided and paid for further practical aviation training for me in safety management courses and in the safety course for the Robinson Helicopter Company.  Now produced and shown to me and marked with the letters “EB-21” is a copy of the certificates I completed in other courses provided to me by Choppair.  I was also listed as the emergency contact person for in the operations Manual and for the Australian Maritime Safety Authority.  Now produced and shown to me and marked with the letters “EB-22” is the registration form of emergency contacts.”

   (The Helicopter Group personnel shown as emergency contacts for the first respondent are Mr Michael Van der Zypp, Mr Ben Harris and Ms Emma Bobridge, in some instances, and just Mr Van der Zypp and Ms Bobridge in one other.)

2. At paragraph 155, Ms Bobridge deposed to having flown approximately 142 hours between February 2010 and October 2013 but noted that a full day charter flight might lead to as little as 1.5 hours being set out in the log book.  She said she flew every month in 2010 apart from October and every month in 2011 and every month in 2012, save July and October.  She flew every month in 2013 until the accident in November 2013.

3. At paragraph 156, Ms Bobridge went on to depose:

   “I did not have an official title.  Under Choppair’s operations manual the “Operations Manager is responsible for the overall administration and efficient operation of all aspects of the company flight operations.”  Apart from Mr van der Zypp, I was the only person in the Moorabbin office responsible for flight operations.  My job was to work as a pilot and to work to administer efficiently the company’s flight operations.  Mr van der Zypp delegated to me a number of responsibilities of a chief pilot.  If something was beyond my training, I referred to Mr van der Zypp.  My work was all on the flight operations side of the business.  Ms Linda Blaj was the payroll officer and office manager.  I was not responsible for financial issues or the financial performance of the business.”

4. Having referred to the operations manual again at paragraph 157 and appendix 1 to Civil Aviation Order 82.0 at paragraph 160, Ms Bobridge continued at paragraphs 161 - 162:

   “161. Mr van der Zypp delegated a number of his responsibilities as chief pilot to me.  In the course of my duties when on the ground in the period 1 February 2010 - 25 October 2013 I:

   (a)  arranged flight crew rosters;

   (b)  maintained records of pilots licences, ratings and route qualifications;

   (c)  maintained a system to record flight crew duty and flight times;

   (d)  compiled loading documents including passenger and cargo manifests;

   (e)  assisted Mr van der Zypp to maintain training records;

   (f)  maintained a complete and up to date reference library of operational documents as required by CASA; and

   (g)  allocated appropriate aircraft.

   162. Also, CASA required a holder of an AOC to appoint a Head of Aircraft Airworthiness maintenance; a HAAMC.  Mr van der Zypp delegated me these duties.  This was a safety position.”

5. Ms Bobridge went on at paragraph 163 to depose to her supervising the work of other pilots as to Choppair’s Northern Territory operations, Telstra contracts and DSE contracts.  She detailed her supervision duties when dealing with the claim for supervisory allowance.

6. The affidavit then goes on to deal in terms with each of the various claims under the Air Pilots Award and at paragraph 229 came to the last period of her employment.  It seems to be common cause that Ms Bobridge resigned by letter dated 12 October 2013, giving two weeks notice of her resignation.  She referred at paragraph 230 to the assertion in the respondent’s defence that she was after 25 October 2013 an independent contractor and not an employee and deposed that she believed she was a casual employee during this period.

7. At paragraph 231, Ms Bobridge deposed “[t]o operate a commercial helicopter business, a business must hold an Air Operator’s Certificate (an “AOC”) issued by CASA.  I never held such a certificate.  I never operated a business.”

8. At paragraph 232, Ms Bobridge continued:

   “After 25 October 2013:

   (a)  I exclusively flew helicopters operated by Choppair.  I did not perform work for any other company.  Choppair paid rental to Air Melbourne for the helicopters I flew;

   (b)  I performed work for clients of Choppair;

   (c)  Choppair paid for fuel;

   (d)  Choppair set my rate of pay;

   (e)  All flights in the period 27 October 2013 - 2 November 2013 originated from Choppair’s hangar at Moorabbin;

   (f)  I was paid an amount referable to the hours I worked;

   (g)  Choppair carried the risk of profit or loss.  Whether the job was profitable was a matter of agreement between Choppair and its client;

   (h)  Choppair designated which helicopter I piloted;

   (i)  Choppair maintained insurance for VH-VDZ, which was the helicopter I was piloting on 2 November 2013.  Now produced and shown to me and marked with the letters “EB-28” is a copy of the certificate of insurance for Choppair; and

   (j)  I had to perform the work for Choppair personally.  I did not have any right or opportunity to hire any other pilots to do the work I was asked to do.”

9. Ms Bobridge went on to depose as to having worked on 27, 29, 31 October and 2 November 2013.  She then went on to give details of the work she did on those dates.  On 27 October 2013, the client was Mr Ian White, a long term client of Choppair.  Ms Bobridge issued a tax invoice as to this work at Choppair’s daily rate of $400, the rate being set by Choppair.  Ms Bobridge deposited at paragraph 235:

   “Mr van der Zypp told me that in order to be paid I needed to submit invoices.  Now produced and shown to me marked with the letters “EB-29” is a copy of my tax invoice for the work I performed on 27 October 2013, 29 October 2013 and 31 October 2013.”

10. The tax invoices concerned are all issued under the heading “Emma Bobridge”, with an ABN 70 556 085 955, to Choppair.

11. Ms Bobridge went on to depose that Choppair invoiced Mr White for the work and she annexed as “EB-30” a copy of the invoice from Choppair to The Helicopter Service (an entity owned or controlled by Mr White).  The latter invoice was for the hire of the Longranger and there is a separate item detailed for the “Hire of Contract Pilot: E Bobridge”.

12. Ms Bobridge went on to depose that the work for Mr White had been arranged verbally and confirmed by text message from Mr Van der Zypp which relevantly stated, “good afternoon are you sorted for the Ian White job how much fuel do you need for VDZ?”  On 29 October 2013 Mr Van der Zypp sent Ms Bobridge a text “Forgot to ask did Deb sort out pay did you bill for Sunday and today”.

13. On 29 October and 31 October Ms Bobridge deposed to having done work for another client of Choppair, named Mr Andy Gibson.  Text messages were exchanged between Ms Bobridge and Mr Van der Zypp.  Ms Bobridge wrote, “Andy Gibson wants to still use me as pilot for his work is that okay with you and if so is there a 44 available this afternoon?” to which Mr Van der Zypp responded, “R’res is here you can use it it has2 (sic) hours on it.”

14. On 2 November 2013, Ms Bobridge deposed to being engaged by Choppair to fly their Bell Longranger for Choppair’s client Heli-Serv as an “on hire” pilot ferrying racegoers to and from Flemington Racecourse.  Ms Bobridge deposed at paragraph 241 to starting her working days at the first respondent’s hangar in Moorabbin.  She deposed at paragraphs 241-2:

    “Mr Van der Zypp had verbally requested me to work on 2 November 2013.  He had told me the hours.  He stipulated the start and finish times as agreed between him and the client.  Passengers departed and returned to Olympic Park, near AAMI Stadium in Melbourne.  Heli-serv was an ongoing client of Choppair.  Heli-serv had been a client during the spring racing carnival in 2012.  Now produced and shown to me and marked with the letters EB-34 is Choppair’s invoice to Heli-serve for work done on 3 and 6 November 2012. 

    Choppair invoiced Heli-Serv for the work done by me and another pilot Mr Edward Mott in November 2013 in an invoice dated 1 January 2014.  Now produced and shown to me and marked with the letters “EB-35” is a copy of Choppair’s invoice to Heliserve dated 1 January 2014.  I had been involved in the arrangement of this work before 25 October 2013.  Now produced and shown to me and marked with the letters “EB-35A” are copies of an email of Mr Mike Dunne of Heli-Serv to Mr van der Zypp dated 14 October 2013 (11.17 am) and my follow up email to Mr Dunn setting down arrangements dated 23 October 2013 (5:32 PM).”

15. Annexure A35A shows that Mr Dunn sent a message to Mr Van der Zypp on 14 October 2013 which relevantly said:

    “Hey Michael,

    That time of year again, please provide details of fleet and pilots you would like to offer for the spring racing.”

16. Noteworthily, it was Ms Bobridge who replied to that email, sent by the chief pilot of Heli-Serv Pty Ltd saying:

    “As discussed please see below confirming what we have available for you and Dry Hire rates.”

    She went on to set out rates which were plainly rates for Heli-Serv to pay Choppair.  She also detailed who was available to conduct the flights (including herself).

17. On 2 November 2013 Ms Bobridge deposed as to texts sent between her and Mr Van der Zypp (annexure “EB-36”).  These do not take the matter further, in my view.

18. Ms Bobridge went on to depose to the dynamic rollover accident on 2 November 2013 and detailed her various claims as a casual employee at paragraphs 247 - 278.

The affidavit of Mr Van der Zypp in reply sworn 23 June 2016

1. Mr Van der Zypp deposed that he is the director and chief pilot of Choppair.  He went on at paragraphs 2 - 5 of his affidavit to give a detailed account of his earlier employment life and the way in which, putting the matter perhaps broadly, he got into the industry by chance and worked his way up.  He went on to depose at paragraph 6 that Choppair was incorporated on 1 June 1999 and he has always been the sole director and shareholder.  Choppair acquired the business name The Helicopter Group in June 1999 and obtained its AOC.  He deposed as to the original owners of the Helicopter Group Pty Ltd (“Helicopter Group”) being himself and Mr Chris Byrnes.

2. Mr Van der Zypp became an employee of The Helicopter Group in 1994 and remained so until Mr Byrnes’ death in 1999.  Mrs Byrnes did the paperwork for the books and the administrative duties related to the business.  On the advice of an accountant, Mr Van der Zypp “incorporated” a similar name, being The Helicopter Group (Aust) with Mrs Byrnes’ permission.  In paragraphs 8-9, Mr Van der Zypp deposed:

   “The Helicopter Group (Aust) initially ran the business then Choppair took on the Air Operator’s Certificate (AOC) in 1999.  I inherited all documents and manuals from Chris and Diane Byrnes, including the EBA which was prepared by Diane Byrnes.  The current form of the EBA has Choppair on it; I believe it was photocopied onto Choppair letterhead. 

   When I commenced working with Chris Byrnes he already had established systems and processes.  I just adopted these practices.  For example, the procedures at Ayers Rock including loading and unloading buses, and pilot duties;  Chris Byrnes had an unwritten policy of copying the McDonalds model which he described as writing down day to day duties and ticking them off one by one as they were completed.  In terms of employment paperwork, I did not prepare any new paperwork, I just used the documents that were already in place when I took over the business.”

3. At paragraph 11, Mr Van der Zypp returned to his state of understanding in the following terms:

   “At the time I incorporated Choppair I simply adopted and used the documentation, which had been established by Chris Byrnes in The Helicopter Group Pty Ltd… Because of Chris’s years of experience in running a helicopter business, I just adopted his practice without question.  Chris did not exactly teach me how to run the business including contracts and wages, I had just observed Chris over the years.  Obviously Chris’ death was unexpected, so I just did the best I could with the experience that I had gained by watching Chris over the years.”

4. Having referred to the adoption by Choppair of the operations manual from The Helicopter Group, Mr Van der Zypp went on at paragraphs 13-14:

   “I have operated Choppair since 1999.  I am and have always been the sole director of Choppair.  Choppair trains people to be helicopter pilots, conduct joy flights and undertakes commercial flights in Victoria and the Northern Territory.  Choppair is the first business that I’ve run as a helicopter pilot.  As previously stated, I was a silent partner of The Helicopter Group Pty Limited in 1994 for a couple of months, however, did not partake in the running of the business. 

   Over the years Choppair has developed a policy that everybody that trains with the company will be given the opportunity to go to Ayers Rock where Choppair runs a tourism charter company, Ayers Rock Helicopters along with Kings Creek Helicopters.  These opportunities are not available in Melbourne within the company.  It allows them to build their flying hours.  If they excel and in the twelve months have obtained in the vicinity of 400 flying hours, we’ll offer the opportunity to return to Melbourne and do their instructor rating.  An instructor is required to have at least 360 hours for a Grade two instructor rating.  A student will need to build some time up before they can become an instructor in the helicopter industry.  Not every qualified student pilot wants to spend time at Ayers Rock getting their flying hours up and in fact my experience with respect to many pilots that take up the Choppair offer ring after a few weeks and decide not to continue up there.  My experience with previous students is that after their year at Ayers Rock is over, they start ringing Barrier Reef Helicopters, Hamilton Island Helicopters, Twelve Apostles Helicopters and similar companies, which I encourage.  I mentor my pilots that we are merely a stepping stone to their next position in the industry and do everything to assist them in gaining their next position.  Flying circles around Ayers Rock eventually becomes boring.  This is promoted as company pilots move on allowing the latest graduates of the training business in Melbourne a chance to also build up their hours.  Low hour pilots find it extremely difficult to get their first position, junior pilots with 400 - 500 hours are employable in decent positions flying newer machinery throughout Australia.  Most companies, for insurance purposes ie, the cost, will not employ junior pilots.”

5. Thereafter, at paragraphs 15-18, Mr Van der Zypp detailed Ms Bobridge’s commencement as a student pilot in May 2007, as earlier indicated, and the indication of a desire on Ms Bobridge’s part to go to Ayers Rock.  It should be noted that in this affidavit (bearing in mind that by this time Mr Van der Zypp was self-represented and much of his material is either inadmissible or irrelevant), there is a distinctly carping quality to his observations at every available point about Ms Bobridge.

6. Recording at paragraph 19 his version of the conversation which led to the Ayers Rock employment, Mr Van der Zypp deposed:

   “I said to Emma that we don’t pay a lot and that at the end of the day I don’t know how you are going to go up there with three children.  She said that I’ve already spoken with the other pilots at the Rock, a couple of them of them were okay with me setting up the room with bunks in with kids.  She knew to contact the staff up there because the people she had trained with that were already working at the rock.  I said to her really and she said yes.  I said yeah, righto.  She appeared to me to be quite happy to go there; there was enthusiasm in her voice.  Because of what she said it appeared to me that she had done her research and she knew what she would be getting into by going to Ayers Rock.”

7. He deposed to the fact that he had spoken to the other five or six pilots at Ayers Rock at the time and had discussions about accommodation.  Mr Van der Zypp continued at paragraph 22:

   “During the course of my discussions with Emma about Ayers Rock at no stage did I discuss any terms and conditions of her employment other than the fact that we would provide her with the ability to work at Ayers Rock to build up her hours, and that we would cover the costs of her accommodation including payment of utilities including heating, cooling, water, power and gas.  Emma was more than happy to accept this as a package -part wages part accommodation and utilities.  I don’t recall that she asked me what she was going to be paid.  The pay was around $15,000 and later it increased to $18,000 plus accommodation and utilities.”

8. Having detailed the arrival of Ms Bobridge at Ayers Rock in September 2008 for a two week trial (and implicitly its successful conclusion) Mr Van der Zypp continued at paragraph 24:

   “When Emma arrived at Ayers Rock Ed Connellan was the most senior pilot and the one who took most of the administrative duties up until 9 August 2009 when he left Choppair.  There is no supervisor or base manager at Choppair.  Even though the operations manual lists a base manager, it requires me to nominate that person and delegate my duties.  I did not nominate anyone for that position nor delegate my duties.  I am the chief pilot.  Any queries were directed to me.  The pilots sort out themselves how the administrative duties are allocated and who would undertake what duty; it was part of their job up there.  Everyone answers the phone, takes bookings from the desk, liaise with Melbourne once maintenance gets done and complete rosters.  These are administrative duties and the person who has the most interest would volunteer to complete these tasks.  If Emma took on additional administrative work, that was a matter for Emma.  I know this because this was the procedure even when Chris Byrnes owned the operation, and I continue to observe this any time I attend Ayers Rock to check how things are going and carry out check rides when they are due.  She was not authorised or nominated by me to do so.  By volunteering to undertake these duties she was also able to complete the rosters.  All pilots are able to volunteer to complete the rosters.  Rosters are done fortnightly and the pilot who completes the roster would email me a copy.  If Emma completed the rosters, it would have allowed her to roster herself to Kings Creek during school holidays.  It is my practice that pilots would be rostered to Kings Creek for a fortnight and would often not return for a few weeks.  Emma’s log book shows that during the Northern Territory school holiday period she would be rostered to Kings Creek.  Emma would roster herself to Kings Creek Station to coincide with the school holidays so that it would be a break from Ayers Rock for her children.  By volunteering to complete these administrative duties she was also able to arrange with Ed Connellan, who was undertaking this role at the time, to move into the single-house unit when he ceased work for Choppair.”

1. Having dealt (once again in my view in a somewhat carping way) with Ms Bobridge’s check ride in Melbourne and her return to Yulara, Mr Van der Zypp deposed at paragraph 29 that:

   “My experience when I have been flying at Yulara or at Kings Creek Station, pilots undertake the majority of their work during sunrise or sunset.  If they are on a sunrise flight, they collect their passengers 30 minutes prior to sunrise.  They return after the flight to the base, their return time varies depending on the sunrise time.  They then after completing their log book, they return home.  My practice is to sleep and rest particularly if I am then undertaking a sunset flight.  When a pilot is undertaking a sunset flight, he or she collects their passengers from the base 60 minutes prior to sunset.  The sunset flight is approximately 35 minutes.  The pilot returns to base, completes the paperwork and returns home.  They are free to do whatever they like.  It is my practice, particularly, if I am rostered to do a sunrise flight the next morning, to have a meal and get some sleep.  Although I was (and continue to) regularly attending Ayers Rock, I did not observe Emma undertaking this practice.”

2. At paragraphs 30-36, Mr Van der Zypp noted the loss by Ms Bobridge of her log book in about May 2010.  He told her to use her “old flight and duty records or the aircraft maintenance releases” to recreate her log book.  He then deposed that his office manager found Ms Bobridge’s log book earlier in 2016 and noted a comparison between the recreated log book and the original one.  He noted (paragraph 34):

   “According to the analysis of the two logbooks prepared by my former solicitor at 8 April 2010 Emma had logged 588.8 hours of flying time in her logbook whereas in her recreated logbook she logged 830.6 flying hours.  That is a difference of 241.8 hours.  Secondly on a number of occasions the type of aircraft that Emma records in her log book as flying on a particular date differ from the one recorded in the created logbook.  I don’t understand how she could make such error.  This is only until 8 April 2010.  There are more false entries from this date onwards showing major discrepancies.

3. He went on to detail other asserted anomalies and, in particular, criticism of Ms Bobridge on occasion describing herself as pilot in command when, according to Mr Van der Zypp, it was someone else.  This included flights when she was undertaking instructed training.

4. Mr Van der Zypp went on to deal with Ms Bobridge’s employment in the Northern Territory.  Her pay was increased from $15,000 to $18,000 and at paragraph 45 Mr Van der Zypp deposed:

   “I am unsure as to why Emma received a pay increase.  I can only assume that my office lady at the time presumed that as Emma had moved into the unit where the clerical base manager previously resided, that Emma would as a result received a higher rate of pay,  No formal decision was made regarding deciding to increasing her pay.  Choppair has a full-time office lady that completes MYOB records, and enters all the accounts for aircraft maintenance, insurance, and payslips.”

5. Mr Van der Zypp’s affidavit goes on to traverse the issues of the supervisory pilot’s allowance and accommodation and various other claims to which I shall return in more detail when I come to those matters.

6. At paragraph 72 and following, Mr Van der Zypp deposes to his inter-relationship with Mr Paul Banks.  Much of the material in this section of the affidavit is not relevant and/or hearsay.  I note, however, that at paragraph 72 Mr Van der Zypp relied on the terms of his Enterprise Bargaining Agreement (“EBA”). He deposed:

   “In our enterprise bargaining agreement at paragraph 3, it states:…”

   Mr Van der Zypp went on in paragraph 73 to refer to exhibit EB-5A to Ms Bobridge’s affidavit.  He complained that she should not have a copy.  The important thing about these paragraphs, however, is not these by now irrelevant complaints (EB-5A should have been discovered pursuant to the order for discovery in any event) but, rather, the fact that this passage in his own affidavit makes it clear that document EB-5A is, indeed, the EBA used by Choppair.

7. The affidavit goes on to deal with the commercial disputation that has clearly occurred between Mr Van der Zypp, Mr Banks and Mr Borg (Mr Van der Zypp is no longer on good terms with either) and returns to the narrative with Ms Bobridge at paragraphs 82-84.  He deposed:

   “Sometime in October 2009 Emma said she wanted to come to Melbourne and I said that Air Melbourne was setting up or expanding their operation in Melbourne.  I said that they might have a job but it would be a marketing position.  During this meeting I did not guarantee a job at Choppair.  We did not discuss further details.  John Borg actually interviewed her for the position, along with another candidate, Paul Cassie, in or around February 2010.  At that interview, John basically stonewalled Paul Cassie and hired Emma for the position then and there.  There was nowhere for Emma to carry out her role for Air Melbourne, so she performed her work out of the Choppair office.  It was always intended that Emma would relocate to the city, potentially to John Borg’s office in South Yarra.  John Borg told her this on several occasions from the outset of her employment.  It was also my understanding that, once up and running, Emma would work out of the Air Melbourne office adjacent to the Yarra Helipad. 

   I brought it up with John and Paul in the past and said why does Choppair continue to pay her.  They said it’s just easier Mike,  Air Melbourne doesn’t have funds coming in at the moment, so you continue to pay her and we’ll keep refunding her pay.”  It was explained to me by John that this was the best way of restructuring the situation, as logistically she was at that time working for Air Melbourne out of my office at Moorabbin Airport.

   I did not hire her as a trainee instructor.  She did not have the experience that I consider satisfactory to perform the duties of a trainee instructor.”

   It should be noted, of course, that a number of the matters asserted in paragraph 82 are plainly hearsay.

8. Mr Van der Zypp continued at paragraphs 85-86:

   “Emma wasn’t hired as a pilot.  She was hired to be the clerical assistant at Air Melbourne; she did some ad hoc flying when we’d help her out.  Sometimes during my flights, I would assist her and ask her to come with me as a favour to help increase her hours.  I do not employ full time pilots in Melbourne; the pilots all work on a permanent casual basis.  They are on a retainer and they get a wage.  They’re casuals.  Some of the pilots would do around 500 hours minimum a year.  In light of these proceedings, I recently found out that I’m paying them well above the award. 

   It’s not the practice of Choppair to employ full-time pilots in Melbourne.  We have casual pilots on retainer who are paid per the hours that they fly.  So we do not have any full-time employees in Melbourne and she was mainly to do clerical work and marketing for Air Melbourne.

   The affidavit goes on paragraphs 87-91 to comment on the amount of flying time the applicant had in Melbourne in terms that do not take the matter presently much further.

9. At paragraphs 92-95 the affidavit continues:

   “Emma was employed by Air Melbourne from on or around February/March 2010 to 25 October 2013.  She carried out this position from the Choppair offices at Moorabbin Airport.  During this time, Choppair paid her wages, however, Air Melbourne reimbursed her wages back to Choppair.  It was structured in this manner because, at the time, there was no space for her to work elsewhere.  Once stationed at Moorabbin, Emma undertook some work for Choppair. 

   The partners of Air Melbourne all agreed that it would be easiest if Ms Bobridge was based out of my office in Moorabbin to begin with, and this suited Ms Bobridge as she also wanted to maintain her commercial pilot’s licence.  Because of the logistics, it was decided that Choppair would simply pay her wages and be reimbursed by Air Melbourne, which occurred throughout her time at my office. 

   Emma attended the majority of Air Melbourne meetings, save for those between the directors.  Whilst Ms Bobridge worked at my office, she was given the opportunity to maintain her Commercial Pilot’s Licence, and therefore undertook casual flying work.  When you look at her logbook in comparison to our actual pilots, it is evident that Ms Bobridge was not employed as a commercial Helicopter Pilot, as her hours are minimal, and now that we have seen Emma’s original logbook, we can see that the hours are even more minimal that what we thought.

   Emma was also not in my office between 9 am - 5 pm everyday as she claims in her Flight and Duties.  There were days when she would not come to the office at all.”

10. Although the affidavit continues to traverse these matters, the material at paragraphs 95-100 is essentially repetitive.  I note that in paragraphs 101-103 Mr Van der Zypp deposed:

    “Emma and I had never discussed Awards. 

    In around July 2013 Emma had showed me a photocopy of another person’s signed Choppair EBA, saying that she wanted to adjust it and formalise her arrangement.  She said to me that we needed to do something with it.  I assumed she meant that she wanted us to make it more legally binding.  She said I needed to do something with it because I was going to find myself in trouble one day.  I didn’t know why she said that because I have never had any problems with anyone else in the past.  I gathered that she was referencing that I didn’t have adequate contracts in place.  I hadn’t even had trouble with her in the past until she rolled in helicopter VH-VDZ on 2 November 2013.  I said to her at the time that we were in competition with someone that pretty much pays the same as we pay, and my understanding was that they pay the same way that we pay, accommodation is provided and utilities is provided (sic).  My understanding was that the accommodation and utilities were, when combined, an adequate package. 

    I never refused to acknowledge that any Award was relevant to Emma because we never actually talked about awards.  We have only discussed the Choppair EBA.

11. In paragraphs 104-110, Mr Van der Zypp detailed what he said were Ms Bobridge’s duties when she worked at Moorabbin.  It is not necessary to set what is said there out in full.  Mr Van der Zypp took major issue with Ms Bobridge’s description of her duties and his criticisms are best encapsulated at paragraph 105:

    “Her duties were administrative with some occasional ad hoc flying, they were clerical duties.  She had no authority to make decisions.  Anything beyond this would have been outside the scope of her limited experience.”

    Mr Van der Zypp denied that Ms Bobridge arranged flight rosters, including at Ayers Rock.  He also denied that Ms Bobridge was a supervising pilot as she did not supervise.

12. Mr Van der Zypp went on to deal with the Telstra and DSE contracts, which were with Air Melbourne but used Choppair’s AOC.  He put in issue all aspects of any supervisory work alleged by Ms Bobridge.

13. The affidavit went on to say that the clerks award applied to Ms Bobridge’s employment (paragraph 121).

14. The affidavit then turns to what is described as “Work as a contractor pilot”.

15. At paragraphs 122 - 126, Mr Van der Zypp deposed:

    “She was getting nowhere in the Air Melbourne scenario.  John wanted her to jump to the city and work in the city in his office.  I’d had a couple of verbal “Look Emma if you don’t like it here, leave.”  She gave verbal notice a couple of times to John and Paul. 

    On 10 October 2010 Emma resigned. 

    I deny she continued to work as a pilot.  She was never employed as a pilot for Choppair and she’s now working as a contractor. 

    To obtain a commercial helicopter business you can be a contractor without having a commercial helicopter business.  All the pilots that work for me for Telstra and DSE are all contractors.  You can be a contractor, not an employee and you are contracted to come in and fly a helicopter under the AOC owned by Choppair - paragraph 232 of Emma’s affidavit. 

    Emma had clients contact her directly.  She had a check ride provided by Mike Dunn of Heliserv on the day of the accident of 2 November 2013.  She submitted the invoice to Choppair whilst I was on holidays despite being instructed by Heliserv to tender the invoice direct to Heliserv.  Heliserv then reimbursed Choppair.  After submitting the invoice to Choppair, Emma then phoned my office manager at the time, Deborah Katz, and hassled her for payment whilst I was away.  Deborah felt intimidated and paid Emma.”

16. Mr Van der Zypp responded to the events of 25 October 2013 to 2 November 2013 at paragraphs 127 - 133 but, by and large, his version of the facts confirms Ms Bobridge’s, although it contains a certain amount of inadmissible comment.  Thereafter, the affidavit refers to the dynamic rollover in 2013.  I propose to deal with that matter separately.  Mr Van der Zypp sought to refer to the crash report from the Australian Transport Safety Bureau and its terms and effect but it was common cause that this CASA investigation was inadmissible before the court.  I gave the remarks set out in the affidavit dealing with the report, therefore, no weight.

17. The affidavit went on to deal with losses allegedly sustained by Choppair as a result of the destruction of VH-VDZ, in part by reference to the counterclaim.  I will deal with those matters separately also.

Ms Bobridge’s affidavit in reply sworn 14 July 2016

1. Ms Bobridge replied to Mr Van der Zypp’s affidavit and also, more particularly, to the cross-claim filed by the respondents.

2. At paragraph 2, Ms Bobridge deposed in relation to the amount of free time she might have had at Yulara:

   “Pilot duties were set out in a Pilot’s handbook.  Bookings were throughout the day.  When I was not flying there were ground duties including cleaning the bus, cleaning the helicopter, office paperwork, banking and marketing business.”

3. Ms Bobridge then went on to respond to the question of the differences between her original log book and her recreated log book.  She noted that while there were undoubtedly errors in the recreated log book, including a significant increase in the alleged flying hours, this was essentially because she had to do the best she could with incomplete information.  She denied exaggerating deliberately the number of hours she had flown.   She referred to the fact that Mr Van der Zypp had accepted the recreated log book until this dispute arose.

4. She observed at paragraph 8 that her claims for breach of award in the Northern Territory were based fundamentally on her duty times and not on hours flown as recorded in either the original or recreated log books.

5. Ms Bobridge went on to respond to the matters raised by Mr Van der Zypp’s affidavit in which criticism has been made of Ms Bobridge’s assertion that she had been in command of various flights.  It is sufficient to say that, on their face, the explanations are persuasive.

6. Similar responses on the question of being the supervisory pilot, rescue flights and the question of training new pilots are addressed at paragraphs 13 - 15.  Once again, the answers are, as a matter of first impression, persuasive.

7. Indeed, it is not necessary to traverse in any detail the various other matters in reply relating to annual leave, Kings Creek and duty free time at Yulara.

8. Although the above paraphrase/recitation of the two principal players’ evidence-in-chief is lengthy, and although the evidence given in the case took some four or so days, this is one of those disputes where regrettably it is not possible to take shortcuts.  It will be necessary to at least paraphrase the evidence given in court.  What follows is not a transcript but is taken from my notes.  While I obviously have had regard to all the matters put before me, the following records the aspects of the evidence that I regard as being of particular significance.  It should be noted that a Mr Cassie, who filed an affidavit on behalf of the respondents, was not required for cross-examination.  I would observe in passing that this is not surprising as his evidence does not, in my view, touch in any significant material way on the matters in dispute.

Mr Van der Zypp’s affidavit sworn 22 July 2016

1. Although I have had regard to the matters set out in Mr Van der Zypp’s second affidavit, it is unnecessary to traverse it.  It consists of responses to the affidavits filed on behalf of the applicant (and by the applicant herself). The matters raised by Mr Van der Zypp are sufficiently covered by the description of the evidence given in court.

The evidence of the applicant Ms Bobridge in chief

1. Ms Bobridge indicated that she was a helicopter pilot but was not working because of injury.  She affirmed her two affidavits as true and correct and confirmed the accuracy of the spreadsheets set out in volume 3 of the court book (“CB”).  Those spreadsheets of themselves have not been the subject of material challenge. 

2. Ms Bobridge was taken to paragraph 25 of her first affidavit at

   
   

   CB493-4.  She confirmed that CASA has flying limits.  Flight time is flying time, but duty time is all the time spent at work.  It could involve refuelling, checking maintenance, banking and administration.  She had undertaken all this work in the Northern Territory.  The maximum permitted amount of work is 90 hours in a fortnight. 

3. Ms Bobridge confirmed that she had lost her first logbook and that the document annexed as EB-4 was the recreated version.  She lost her logbook in about December 2010.  She notified Mr Van der Zypp and CASA.  Mr Walker, of CASA, told her to do her best to recreate her logbook.  She had access to a number of records, including rosters that she saw at Ayers Rock and maintenance release times which she signed every day.  She also had payload sheets.  From all these records, she had recreated her logbook, but the system she used to do so, she now appreciated, was flawed.  Ms Bobridge confirmed that the operations manual is the bible that the company operates by and that all pilots had to be up to date with it. 

4. Ms Bobridge confirmed that she moved into the base manager’s house, which had one bedroom.  She believed this was in late January 2009.  She had become the base manager of Ayers Rock in late November to December 2008.  Choppair paid for her accommodation but she did not know how much. 

5. Ms Bobridge confirmed that the base manager ran the business and attended to all rostering and maintenance of the vehicles.

6. Ms Bobridge was taken to paragraph 76 of her affidavit.  She confirmed that the 108 days detailed as being time spent at Kings Creek Station were based on rosters.  She did not fly on each of those days.  She attended to banking, maintenance and other duties.  Kings Creek is just a helipad, fuel bowser and shed.

7. At Yulara there was a desk in the tourist centre.  She would sit there and take the bus to passengers and flew most days.

8. Ms Bobridge identified photographs at CB659, 660, 661, 662, 663 and 664 were photographs of the donga at Kings Creek.  She said there were no cooking facilities available.  CB663-664 were photographs of the laundry.

9. Ms Bobridge had left her Yulara employment in November 2009.  Her salary throughout her employment in the Northern Territory was not $45,000 but the $18,000 to which it had been increased.

10. Ms Bobridge confirmed that she received a payment of $1,430.70 in November 2009 (I would interpolate and say it has become clear that that was a payment made by Mr Van der Zypp to Ms Bobridge for tyres).  Ms Bobridge confirmed that she worked six days per week in the Northern Territory and there were days when she was on duty even though she was not flying.

11. Ms Bobridge confirmed that she was given a pilot handbook when she arrived in the Northern Territory.  This is EB-44 at CB989-1000.  Ms Bobridge referred to the arrangements for the provision of food at CB999.  Ms Bobridge said she prepared breakfast and washed up and also performed similar duties in the evening. 

1. Ms Bobridge next dealt with her employment in Melbourne.  She said Air Melbourne owned the aircraft but Choppair had the AOC and was the operator.  She would look after Air Melbourne contracts and also promoted the scenic flight business.  It operated under the Choppair AOC but under the name of Air Melbourne.  While in Melbourne, she was continuing to supervise Ayers Rock.  She also supervised the Telstra contract.  Her time was split approximately equally between Air Melbourne and Choppair activities.  She was employed as a pilot.  She was offered a job to be a pilot.  All her duties related to flying.  Mr Van der Zypp told her, “We would like you to conduct business here and get scenic flights up.”  This would increase her flight hours.  Choppair tendered for the Telstra contract.  It involved work in five places.  Ms Bobridge assisted the pilots to set up the bases.  She was trying to build up that business also.  She undertook the necessary administrative work relating to the pilots’ activities.  There was also a DSE contract involving two helicopters during the fire season.  It was her job to make sure that helicopters and pilots were up to the contract standard.  Mr Van der Zypp, Ms Bobridge, Ms Blaj, and two or three instructors were in the office.  Ms Bobridge continued to fly helicopters while in Melbourne and flew 143 hours.  She did some scenic or charter work.  On one occasion she flew to Phillip Island.  It was only 1.2 hours flying but a whole day was involved from 8 am till 5 pm.

2. Ms Bobridge then gave evidence about the accident on 2 November 2013.  She had the collective in her left hand and the cyclic between her knees.  The collective provides power and the cyclic moves the vehicle forward or back.  In hover, pedals are what you turn with.  The aircraft was sitting on the ground.  The marshal indicated it was okay to move.  Ms Bobridge was waiting for another helicopter to land.  She moved the controls in a figure 8 which was a routine check.  She checked the ballast. 

Ms Bobridge under cross-examination by Mr Van der Zypp

1. It should be noted that Mr Van der Zypp cross-examined Ms Bobridge at length.  He proved, given what I would anticipate to be his lack of experience, a relatively adept cross-examiner. 

2. Ms Bobridge confirmed that she wanted to be a pilot and got on the internet and came in for an interview.  She was happy with the training provided by The Helicopter Group.  She understood there was a chance of employment at Ayers Rock and she discussed accommodation at Ayers Rock with Mr Van der Zypp.  She told him that she intended to take her children, and Mr Van der Zypp said there was no accommodation.  They were sitting in Mr Van der Zypp’s office and there was a conference call to the base manager, Mr Ed Connellan.  Mr Connellan said there were bunks there which could be put into a room.  At that stage Ms Bobridge was only on the two-week trial.  It would be all right to take the children, if the other parties were comfortable, likewise at Kings Creek.  She rostered for the children’s holidays. 

3. The showers and bathroom at Kings Creek were in terrible condition.  She had discussed this with Mr Van der Zypp on the phone but things did not get repaired quickly.  The accommodation at Ayers Rock was also bad.  She spoke to Mr Van der Zypp on the phone about this and also to Ayers Rock management.  When it was put to her by Mr Van der Zypp that the water in the Northern Territory was very hard, she disputed this.  She said, “They (the marks) cleaned off when I cleaned them.”  It was put to her that the manager moved out of his unit.  Ms Bobridge responded that she was not asked to move in until he resigned.  She had made the request before that and Mr Connellan had said no.  Mr Connellan left just before Christmas.

4. Ms Bobridge confirmed that Mr Connellan and a Mr Beeson had more flying hours than her.  Mr Beeson only flew whereas Mr Connellan had been the base manager and came from an air industry background.  She thought Mr Connellan went to Alice Springs.

5. Ms Bobridge confirmed that she no longer had the documents she used to recreate her logbook.  She said duty time recorded was the duty time she worked.  There is no claim in respect of flight times.  There is no magical number of hours, but it takes 350 hours to get an instructor’s rating.  DSE would require 1500 hours and Telstra 1000 hours.  She had obtained training flights from sign-out data and used rosters to establish where she was at given times and also the maintenance list and pay records.  It took her a long time, at least one year, to do this.  This necessarily led to some errors in the dates entered.  Ms Bobridge confirmed that MR time is main rotor time and engine time is when the engine is switched on.  She was happy with the flying hours that she received at Ayers Rock and got on well with the pilots.

6. Ms Bobridge asserted that she did not finish her employment when she left Ayers Rock.  She said a lot of instructors have a gap.  She came back to Melbourne and started work on 4 February 2009, having taken her holidays.  She had been north to Darwin and back through Queensland to Melbourne.  She arrived in Melbourne in December 2009.  Mr Van der Zypp told her that her position was on hold.  She came back after Christmas.  She thought Choppair was doing scenic flights.  She did not hear about Air Melbourne until after she started again with Choppair.  She had four to six weeks holiday in between the Northern Territory and Melbourne.  Her status was unclear.  She had not resigned.  Mr Van der Zypp told her to come back and see him when she got back.  She said Mr Van der Zypp wished her to stay at Ayers Rock but she told him she could not afford to, and he said, “Come and see me when you come to Melbourne.”

7. Ms Bobridge confirmed the majority of pilots have a Jetranger endorsement.  This was needed because there have to be at least two pilots endorsed with Jetranger, which is there for scenic flights.  She confirmed she was not charged by Choppair for her Jetranger endorsement.

8. Ms Bobridge said that the Conways (the owners of Kings Creek) were discontented.  Ms Bobridge had improved the gardens together with the children.  She did not use the air-conditioner at Kings Creek at night.  It was gaffer-taped.  She did not sit in the accommodation with her children.  The children worked as yardies.  She understood that Choppair paid a commission to the Conways.  The Conways fed her children in return for the work they did.  Ms Bobridge said she was not initially in a position to complain about matters when she first arrived at Ayers Rock.  She said when she became manager she complained to Mr Van der Zypp who said he would fix things.  She said she became base manager in early 2009.  She enjoyed the flying.  It was hard work.  Mr Van der Zypp asked her if pilots were still signing the terms and conditions.  This was one of the discussions that she had had with Mr Van der Zypp about pay.

9. Mr Van der Zypp put it to Ms Bobridge that she was not base manager as there were other, more experienced pilots there.  Ms Bobridge said there were six pilots there and also two to three fixed-wing pilots.  About half of the helicopter pilots had more hours than her.  By the time she left, only Mr Tim Beeson had more hours than her.  She confirmed she had sought permission before rescue flights.

10. Mr Van der Zypp put it to Ms Bobridge that, upon her return, she went to meet Mr Borg on 4 February 2010.  Ms Bobridge confirmed that she and Mr Van der Zypp went to Mr Borg’s office and Mr Van der Zypp introduced her.  She had already met Mr Banks.  They met Mr Borg to discuss scenic flights with Air Melbourne vehicles.  There was no mention of her wage.  She was just meeting Mr Borg and discussing scenic flights.  She thought that Mr Van der Zypp owned VH-VHN but now knows that Air Melbourne did.  Other aircraft had different owners.  She did not know who owned the aircraft.  It was put to Ms Bobridge strongly by Mr Van der Zypp that she had been brought down to Melbourne to do this work.  Ms Bobridge knew that the three (Mr Van der Zypp, Mr Banks and Mr Borg) were partners, but did not know then how it all worked.

11. Ms Bobridge said she understood that Choppair undertook the DSE contract.  When Telstra came on board it was a Choppair contract, but helicopters were hired from others.  There was one pilot in Kununurra, one in Broome, and one in Mackay.  Ms Bobridge confirmed that she and Mr Van der Zypp were at meetings with Telstra.  Mr Borg was at the first meeting.  Choppair was not getting 10 per cent of the Telstra work.  DSE was 10 per cent.  Ms Bobridge said her wage was never discussed and promises did not eventuate.  She spoke to Mr Banks as a friend.  She asked for a pay rise but this was not well received.  She had asked for $45,000.  She quite often worked at home.  She was supposed to get commissions on scenic flights.  Every different operation had a different name.  By way of example, there were different names for the operations at Ayers Rock and Kings Creek.  She had resigned once before, before her final resignation, but was talked back into working by Mr Borg.

12. The fire season is expanded by briefings, both before and after it starts.  The DSE can call at any time of the year.  She had pilots ready by September but they were not paid until they were on site.  These are employees but they were paid as contractors while she was there.  On weekends they would use casuals or Ms Bobridge or Mr Van der Zypp.

13. Ms Bobridge said that there were a number of check rides.  Sometimes she would fly to meetings.  The idea was to build up scenic flights as much as possible.  She had ferried a machine to Mackay and was the pilot in command.

14. The Telstra work was year-round, not seasonal.  Additionally, there was charter work.  There was also back-burning in the off-season.  Ms Bobridge said she was still coordinating.  Not all of this work was done with Air Melbourne helicopters.  Her office in Moorabbin was near the kitchen.  Air Melbourne gave her business cards.  They wanted her to build up scenic flights.  The cards had her mobile number.

15. Ms Bobridge was then cross-examined about the process of her resignation, but in my view nothing of any moment turns upon this.

16. Ms Bobridge said that she would organise pilots to do Choppair charter work on weekends.  Choppair invoiced the client.  Air Melbourne could not invoice as it had AOC.  After the accident she sent an invoice to Choppair.  She said Mr Van der Zypp told her to invoice as an individual.  She did so in order to get paid.  She said the job with Ian White was undertaken as a casual.  She was casual with Choppair.  Choppair does logbooks for vehicles as well as pilots, and this is for accounting purposes.  Ms Bobridge finished her full-time work and understood she would do casual work while she got her instructors rating.  She said she was pressured into resigning.  She said, “I trusted you.  There were many promises.  It became obvious they would not be delivered.  There was no intention to deliver training.”

17. Ms Bobridge was cross-examined about her flying hours as recorded at CB614.  She said this schedule was inaccurate.  She said she worked 9 am to 5 pm and some weekends.  She was not in the office every day.  There were phone calls out of hours.  She very rarely left before 6 pm because she had so much work to do.  She did not always work in the office.  She had, for example, spent three days at fuel pumps.  It was not her job to be in the office 9 am to 5 pm.

18. When further cross-examined about her time at Ayers Rock, Ms Bobridge confirmed that she did not usually do sunrise and sunset.  It depended on who was available.  She said that, “We were always encouraged to get flights no matter what.”  She had refused overweight flights.  Some pilots flew too long.  She said a friend of Mr Van der Zypp’s abused a worker for taking time off and she complained to Mr Van der Zypp.  As base manager, she tried to control flights.

19. Ms Bobridge confirmed that she had no employment with anyone else when she returned to Melbourne.  Mr Van der Zypp told her to hurry back but when she saw him he delayed it till February.  She had no recollection of being paid by anyone else.  She dealt with CASA for two audits and three or four spot checks.

20. On the day of the accident, the price was set by Choppair.  She had emailed the day rate.  The day rate was different to the rate paid to the pilots.  It was an Air Melbourne helicopter.  Air Melbourne was trying to promote the business.  Choppair has no contract with the Victoria Racing Club and she had no control over her work on the day.  The start time was on call at Moorabbin.  She had been told this the night before when there was a safety briefing. 

21. On the day of the accident she arrived at work and put the helicopter outside the hangar.  She inspected it and checked fuel.  Mr Ed Mott put the dual controls in.  Ms Bobridge untied the blades and got her ballast bag from the hangar.  She put it on the passenger seat, with the seatbelt on.  She flew to Olympic Park.  There was a western-facing helipad to the north of where she had the accident.  She did not shut down.  Mr Dunn said he would do a check.  She had not undertaken the flight to Flemington before and he offered to do a familiarisation flight with her, which she accepted.  Mr Dunn did not ask her how many hours she had, nor did she think he should have.  Mr Dunn was a chief flight instructor.  Mr Dunn walked up to the helicopter while the engine was idling.  He took the ballast bag back and put it in the boot. 

22. Ms Bobridge did not recall much about passengers on the day because of the accident.  Records say that she had three passengers.  She did the take-off, and there were no concerns, and believed that the ground marshal had given her the okay to take off.  She made radio calls at various points but did not recall Olympic Park.  She went to Flemington and returned to Olympic Park to a different helipad.  Mr Dunn asked if she was comfortable.  She replied that she would rather Mr Dunn did one more flight with her but he said, “You do not need it.”  As a result of passengers, the vehicle was overweight and Mr Dunn got out.  A passenger got in the front seat.  Mr Dunn removed the dual controls and got the shot bag and put it on the floor near the pedals.  Ms Bobridge asked Mr Dunn if the bag should be on the seat in the middle, but he said it was okay, “They can put their feet on the bag.”  A lady with high heels did put her feet in front of the shot bag.

23. Ms Bobridge always does a figure 8 before take-off.  It is not a big movement but is designed to check that the controls are free.  She did not pull the collective or the pedals.  If she pulled the collective the vehicle would take off.  If she pulled the pedals the vehicle would turn.  She could not recall the number of flights on the day.  It was perhaps five or six.  There were full loads to Flemington and empty on the way back.  She refuelled at Flemington at lunchtime and had refuelled once in the morning.  Heli-Serv supplied the fuel.

24. Ms Bobridge did not see the cyclic cover.  She did not herself look around the helicopter.  Ground crew walked around and gave the thumbs up.  She relied on ground crew to ensure the fuel tank was on.  There was no interference with the controls by the passengers.

25. After lunch Ms Bobridge went back to Olympic Park to refuel.  The ballast bag was on the floor.  There was just one drop-off before the accident.  The person in the front seat was an average-sized man.  When she left Flemington she had about 400 pounds on board.  She could not now recall the maximum loads.  She came to Olympic Park over the top of the goalposts and went to the pad on which the accident occurred.  She had not got out of the aircraft at Olympic Park.  The engine was always going.  She landed on mats, as directed by the groundsman, and unloaded. 

26. When the accident occurred she had never got into hover.  The groundsman gave her the thumbs up but she noticed another Jetranger on her right and indicated this to the groundsman.  She had done her checks and the ballast bag was sitting on the pedals.  She raised the collective and suddenly the helicopter lurched to the right.  The right skid never left the ground.  It was on high skids but she did not know why.  The ballast bag was not on the cyclic staff.  She never attempted a full figure 8 with the engine flat out.  The other helicopter landed and she got the thumbs up.  Then she raised the collective. 

27. She never got the feeling that the vehicle was light on the skids.  She dumped the collective, looked out the window and saw the ground coming up quickly.  She covered her head.  She said it felt like someone was standing on the skid.  The skid was still sitting on the mat.  When she let go there was nothing she could do to prevent the rollover.  It was purely self-survival at that stage.  Her memory was blurry from that point on.  She looked around and there was a lot of smoke.  She turned the fuel off by the fuel shut-off valve and punched the window out, undid the seatbelt and climbed out through the front window.  She felt dazed.  It was surreal.  She felt in a bubble and said she believed she rang Mr Van Der Zypp.

28. Mr Van Der Zypp put it to Ms Bobridge that she had rung him and said, “I’ve fucked up.”  Ms Bobridge said she told him, “I’ve just suffered dynamic rollover” and he replied, “Shit.”  She had had some words with Mr Van Der Zypp at the ambulance. 

29. Ms Bobridge was then cross-examined about another instance when she first arrived back in Melbourne.  She had not taken a handrail into account when landing at the helipad and touched it, but there was no damage.

30. At a later point after the accident, Ms Bobridge sat with Mr Van Der Zypp and gave a statement for insurance.  She had already done the ABSB.  She said while she was up on an angle she could feel it was hard to move the cyclic.  She now understood that this was because of the angle of the helicopter at the time.  She had said that the ballast bag was on the floor.  She did believe that the cover was on the cyclic because Mr Dunn had told her he had put it on.  There was no reason for her to double-check Mr Dunn, who was a chief pilot.  He had said it was all good to go. 

31. The lead shot in the bag is fairly small.  20 kilograms is very difficult to move.  It was a canvas bag, being heavy duty canvas.  She denied absolutely telling Mr Van Der Zypp that a large guy, a big guy, had sat in front and moved the bag back.  I would interpolate and say that this evidence was given with conviction, and I believe it.

32. Ms Bobridge confirmed that a check ride had taken place.  She had not been told that CASA wanted this.  Mr Van Der Zypp demonstrated to her the vehicle being moved sideways because the cyclic was jammed.  Ms Bobridge confirmed that she told Mr Van Der Zypp that the right skid never left the ground.  She disagreed with him.  She did concede that for a while Mr Van Der Zypp had convinced her that the accident was her fault.

33. In re-examination, Ms Bobridge confirmed that there were only seconds between the start of the collective and the point of no return. 

The evidence of Sandra Hillas

1. Ms Hillas swore an affidavit on 14 July 2016 to which it is necessary initially to turn.  She confirmed that she remains in employment by one of Mr Banks’ group of companies, as an administration manager.  She has been a long-term executive assistant to Mr Banks. 

2. Until December 2014, Mr Banks was a partner/shareholder in the Air Melbourne partnership and its related corporate entities, and Ms Hillas was the financial controller for Air Melbourne and the related businesses.  She had regular dealings with Mr Van Der Zypp and Choppair in this role, and had also met Ms Bobridge.

3. At paragraphs 7 - 10 of her affidavit, Ms Hillas deposed:

   “Choppair holds a current Air Operators Certificate (“AOC”).  Air Melbourne had contracts to provide regular helicopter services to Toll Holdings and the then Department of Sustainability and Environment (“DSE”), now the Department of Environment and Primary Industries (“DEPI”).  Choppair, because it held an AOC, acted as manager for those Air Melbourne contracts.  Air Melbourne paid Choppair a commission based on the turnover of those contracts.  Choppair also hired Air Melbourne-owned helicopters for its own business operations.  Choppair paid Air Melbourne for such hire.  The two businesses worked closely together.” 

   Ms Emma Bobridge

   From 2010, I knew Ms Bobridge to be a pilot and Operations Manager at Choppair.  I am a terrified flyer.  Ms Bobridge was the pilot who took me on my inaugural helicopter flight. 

   In addition to being a pilot, Ms Bobridge was the go-to person at Choppair whenever I needed information relating to pilots or flight information. 

   Routinely (that is, several times a week particularly in fire season) I asked Ms Bobridge for information about Air Melbourne helicopter contracts that Choppair managed.  I asked her questions such as which pilots flew when and where, what hours the pilots worked, where the pilots were accommodated, what fuel was used and at whose cost, and so on.”

The counterclaim

The cross-claim – was Ms Bobridge negligent?

1. The respondents’ claims in the cross-claim allege that the applicant was negligent in that she failed to perform her services with due care and responsibility (see paragraphs 8 to 11 of the statement of cross-claim) or, alternatively, was negligent in exercising her skills as a pilot (paragraph 12 of the statement of cross-claim).

2. It is important to remember that this being a cross-claim it is for the respondents to prove their case on the balance of probabilities.  The respondents must prove that it is more probable than not that Ms Bobridge was negligent as asserted.  If the court is not so satisfied, the cross-claim fails at the start. 

3. The particulars of negligence (both as to failure to perform services with due care and responsibility and as to negligence more generally) are:

   She failed to secure the dual controls in VDZ;

   She failed to secure the 21 kg lead shot bag used by her as a ballast in VDZ;

   She failed to keep VDZ under adequate control;

   She failed to steer or otherwise control VDZ;

   She failed to take precautions or adequate precautions to avoid crashing VDZ.

4. It is time to look at the evidence of what actually occurred in greater detail.  There is no dispute that Ms Bobridge did a familiarisation flight with Mr Dunn.  On the evidence of Ms Bobridge, which was unchallenged, this went well enough for Mr Dunn to tell Ms Bobridge that she did not need another flight with him.  Mr Dunn removed the dual controls and put them in the boot and got the shot bag, which he put on the floor, according to Ms Bobridge, near the pedals.  Ms Bobridge said that she asked Mr Dunn if the bag should be placed on the seat in the middle but he said that it was okay; “they can put their feet on the bag.”  The evidence from Ms Bobridge was that one lady with high heels put her feet in front of the shot bag.

5. Ms Bobridge’s evidence is that she always does a figure 8 before she takes off.  This is not a big movement.  This is designed to check that the controls are free.  She did not pull on the collective or touch the pedals.  If she pulled on the collective the vehicle would take off, and if she pulled on the pedals the vehicle would turn.

6. Ms Bobridge’s account of the accident was that she never got into hover.  The groundsman gave her the thumbs up but she noticed another Jetranger on her right and indicated to the groundsman that this was the case.  She did her checks and the ballast bag was sitting on the pedals.  She said she raised the collective and suddenly the helicopter lurched to the right.  The right skid never left the ground.  It was on high skids.  Ms Bobridge’s evidence was that the ballast bag was not on the cyclic staff.  She denied ever having attempted what was described as a full figure 8 with the engine flat out. 

7. The other helicopter landed and Ms Bobridge got the thumbs up.  She then raised the collective.  She never got the light-on-the-skids feeling.  She dumped the collective and looked out the window and saw the ground coming up quickly.  She said it felt like someone standing on the skid.  The skid was still sitting on the mat.  Thereafter, the accident simply progressed.  I have detailed these matters earlier.  I have also detailed Ms Bobridge’s phone call to Mr Van der Zypp and his response.

8. As earlier indicated, Ms Bobridge was cross-examined about an earlier incident when she first arrived back in Melbourne.  She had failed to take a handrail into account and touched it but this led to no damage.  On any view, Mr Van der Zypp did not at the time regard it as sufficiently serious as to make it inappropriate for Ms Bobridge to continue flying.

9. Ms Bobridge was clearly interviewed by Mr Van der Zypp.  She said the ballast bag was on the floor.  She did believe the cover was on the cyclic because Mr Dunn had told her she put it on.  She said that there was no reason for her to double-check Mr Dunn as he was a chief pilot.

10. I notice that in the subsequent checkride with Mr Van der Zypp he demonstrated tripping sideways because the cyclic was jammed.  Ms Bobridge said that she told Mr Van der Zypp the right skid never left the ground and she therefore disagreed with him.  But she conceded that “for a while you convinced me.”

11. It should be noted that Ms Bobridge’s assertion that the cover was on the cyclic stub is clearly wrong.  This was plainly something that she overlooked.

12. It is appropriate to return to, and in part repeat, Mr Holstein’s and Mr Van der Zypp’s evidence.  Mr Holstein’s evidence, relevantly for these purposes, was that the dual controls continue to function even with the cyclic and collective removed but not the pedals because they are locked.  The dual controls mimic the main ones perfectly.  I note that although Mr Holstein says usually the cover plate is put on, this would depend upon the length of use and was partly for aesthetics.  He had never had a passenger affect the controls.  He gave a careful answer that, in his opinion, Ms Bobridge was not negligent in not putting the cover on or causing it to be put on. 

13. Mr Holstein was clear that even if the ballast bag had somehow been pushed back it would not have impeded the cyclic because its height was less than four inches.  It was his opinion that it was highly unlikely that the bag contributed to the accident.  I note that he tried to drag the bag with which he conducted his test to the wall of the seat and was not able to achieve a failing of the cyclic.  He said the bag could not be moved accidentally and he had trouble moving it.  It was heavy but the material in it was fluid.

14. Mr Holstein’s evidence was that any movement of the dual control stub would be obvious to the applicant as the cyclic would be moving in her hand.  It was his evidence that it was appropriate to have the bag on the floor.  It had to be somewhere given that there were passengers.  This is the case notwithstanding that it was common practice to have it on the seat with a seatbelt.  Given that the applicant was doing multiple short flights putting the bag on the floor was permissible.

15. Mr Holstein said overturning can be caused by wind if one is held down, or it can be caused by misuse of the cyclic or tail rotor.  The applicant should, before moving, do pre take-off checks and then a cyclic movement to ensure that she has free access.  This is a slight movement.  This is particularly the case with large helicopters as they are hydraulically controlled.  If the dual cyclic had been caught it would have been very obvious to the applicant.  If the bag was on the cyclic it would be obvious.  You normally look right and left.  He pointed to photographs 15 and 17 in exhibit A2 which shows that he needed a very steep angle to move the bag.  If the bag had been on the cyclic it could cause a roll but this was unlikely.  If bunched up underneath it would affect forward and backwards movement but not side to side. 

16. Mr Holstein said it was a bit of an open finding.  There were many variables.  The vehicle could have been affected by wind.  He noted that another helicopter had passed nearby shortly before the accident.  Mr Holstein noted the vehicle would slide if it was on bitumen; the matting might be grippy.  Dynamic rollover is violent and is generally prevented by experience.  When taken to CB1067, a photograph of the matting, he did not know what substance it was.  He said there could be friction or it could be a skid.  For very experienced pilots there are usually clues but for less experienced ones they may miss it.  Dynamic rollover can, however, happen even with experienced pilots.

17. Mr Holstein said there were no steps that the applicant did not take that she should have and, conversely, she took all the steps that she should have.  He was unable to think of any omissions.

18. Under cross-examination Mr Holstein relevantly confirmed that usually the protective box for the cyclic gusset is plastic.  He said he would not normally put the box on although it was probably prudent to do so.  It would not take long.  When it was put to him that the ballast bag he saw in Sydney was similar rather than identical to the one in the accident Mr Holstein said different handles would make no difference.  He said the bag would fall over if it was placed on its end.  He was satisfied that the two bags were similar.  It was put to him that when the machine was running the vibration would move the bag.  Mr Holstein said that this might assist the shot moving and there would be more vibration on high skids.  There would be less friction if the vehicle was carpeted. 

19. When it was put to Mr Holstein that if there had been another helicopter on the right of the vehicle this might have partly stopped turnover Mr Holstein agreed, although he noted that the wind could make a difference.  Mr Holstein thought the vehicle could be caught by the matting.  There could be a sideways movement which could cause pivot.  It would be one second from the point of no return.  Mr Holstein stuck to his view that it was highly unlikely that a passenger would have moved the shot bag.

20. Mr Holstein confirmed that the control with hydraulics on is very sensitive.  Any interruption would be immediately obvious. 

21. In Mr Van der Zypp’s first affidavit only one paragraph is directed to the accident.  This deals with the checkride made thereafter during which Mr Van der Zypp demonstrated jamming the cyclic stub.  I have already dealt with the assertions as to who said what on that occasion.  I note that by that stage Mr Van der Zypp had adopted the position that the accident had been caused by the shot bag jamming controls.  Mr Van der Zypp’s second affidavit did not touch on this matter at all.

22. Under cross-examination Mr Van der Zypp indicated the investigations that he made.  He retained his view that the significant vibration of actual flight with full power might have moved the shot bag during the various flights that had taken place and/or it might have been pushed so that it moulded itself around the cyclic.  He retained the view that the bag had been placed vertically on the floor and that a passenger might possibly have moved it back thus causing the shot bag to mould itself around the cyclic stub and stop its movement.  I repeat that it was Mr Van der Zypp’s positon that dynamic rollover is the pilot’s fault.  She should have seen the bag moulded to the cyclic stub.  He denied that Ms Bobridge would detect interference with the cyclic stub if she did a freedom of movement check. 

23. Mr Van der Zypp said that Ms Bobridge had failed to stop the collective to stop the rollover and failed to put the cover on the stub.  He did not accept that there was a problem with the matting on which the helicopter stood, which was flat.  He confirmed that rollover can happen in a second and a half.  Pilot error was not getting caught in the first place.  Ms Bobridge had not lowered the collective fast enough nor altered the cyclic when the roll started.

24. There are a number of things to be said about the evidence.  From exhibit R1 it is clear that the passenger seat would have been, more probably than not, readily visible to Ms Bobridge when she sat in the pilot seat.  Whether or not she would have been able to see the cyclic stub is not entirely certain.  The first of the photographs in exhibit R1 (Mr Van der Zypp’s photographs) is said to indicate “looking from average pilot height to left hand footwell”.  This is, of course, a mere assertion by Mr Van der Zypp.  What is clear, though, is that the front part of the passenger compartment would have been visible.

25. It is important for me to emphasise that Ms Bobridge has denied that the shot bag had moved.  She says it was in the front of the compartment resting against the pedals.  I accept her evidence.  In one sense that is the end of the theory advanced by the respondents.

26. There is more to it, however, than that.  First, Mr Holstein’s evidence was compelling.  He had actively tried to move the bag but had been effectively unable to move it in a fashion that would have produced a result conformable with the respondents theory as to how the accident occurred.  I accept that the shot in the bag might be more likely to move under the pressure of vibration from what, after all, is an extremely powerful vehicle.  Nonetheless, there is nothing to suggest that this bag would have been placed vertically as Mr Van der Zypp’s thesis requires.  It was a two-handled bag with handles on each side and it would plainly be far easier to place on the floor of the vehicle flat.  Furthermore, that is the evidence of Ms Bobridge. 

27. Even if in some fashion, bearing in mind that I am not persuaded that it occurred, the shot bag had slipped back towards the cyclic it would not have reached it because it was not high enough to do so.  Furthermore, even assuming that the vehicle takes off at an angle, as Mr Van der Zypp contended, the likely vibration of the vehicle seems to me to be more likely to have caused the shot bag simply to, as it were, expand out on the floor.

28. Whether that surmise is correct might be thought slightly speculative.  What is quite clear, however, is that had the shot bag been moulded around the cyclic, as Mr Van der Zypp has surmised, this would instantly have been apparent to Ms Bobridge when she did her pre take-off check figure of 8.  That is the evidence of Mr Holstein.  It is conformable with commonsense in any event.  I accept Mr Holstein’s expertise and accept that this assertion is correct. 

29. The reality is that Mr Van der Zypp’s true position is that dynamic rollover is necessarily caused by pilot error.  Right from the start he was looking for a thesis that would be consistent with this.  His preliminary investigations, which were motivated, as I would find, by concern for his own interests rather than any concern for the wellbeing of Ms Bobridge, were designed to show from the start that it was her fault. 

30. Given that the right skid clearly never left the ground, something Ms Bobridge asserts and which I accept, and which was not seriously challenged, it would seem to me that more probable than otherwise that in some fashion the right skid failed gripped the matting and became, in some fashion, tangled with it and as power was applied this necessarily caused the dynamic rollover that occurred.

31. Once again there is necessarily an element of speculation in this finding but, at the end of the day, the conclusion is only too clear.  It should be remembered that Mr Holstein was an independent expert.  Mr Van der Zypp is clearly an expert pilot, and has greater familiarity with the particular vehicle in question than Mr Holstein, but he is in nowise independent.  He was a man seeking to prove a particular case in his own interest.  Mr Holstein was not.  Mr Holstein did not impress me in any way as being partial in Ms Bobridge’s favour.  He was simply giving very convincing evidence based on very considerable experience.  While there were some things he did not know, which he readily conceded, these did not affect his credibility nor, in my view, the force of his evidence more generally. 

32. Mr Holstein said it was a bit of an open finding.  I agree.

33. While my own conclusion would be that the dynamic rollover was caused by the fact that the right skid, for whatever reason, did not leave the ground as it should have, it does not matter whether this conclusion is right or wrong.  What matters is that, on any view of the case, Ms Bobridge was not negligent, as Mr Holstein’s evidence clearly demonstrates.  In the circumstances the respondents have not established that it is more probable than otherwise Ms Bobridge caused the accident by negligence and it follows, therefore, that the cross-claim must fail. 

34. Even if this finding were to be incorrect there is something to be said about the respondent’s cross-claim for damages.  It is overwhelmingly clear that the $154,940 claimed as loss of revenue is entirely incorrect.  Choppair only received 10 percent of anticipated revenue and the claim would therefore have been no more than $15,494. 

35. Further, the $27,000 claimed as “the approximate $27,000 excess paid by Air Melbourne as a result of Emma’s crash” is, as the applicant’s written submissions point out, a loss of Air Melbourne not that of the respondent.

36. Further, as already indicated, the Air Pilots Award clearly applied to Ms Bobridge and clause 22.12 gives her immunity in any event. 

37. Finally, Mr Van der Zypp articulated in his evidence further alleged losses which, in my view, are not made out on the evidence and of which, in any event, no prior notice had been given.

The Accessorial Liability Claim

1. Although the question of the quantification and assessment of any issues as to contraventions of the awards has, by agreement, been put off until after this decision is made, bearing in mind that the factual basis upon which the matter would proceed will not be clear until that is done, the parties did address, both in evidence and submissions, what the applicant’s submissions described as accessorial liability.  What is really meant by that phrase is the assertion that Mr Van der Zypp:

   “(a) aided, abetted, counselled or procured; and/or

   (b) has been, by his acts and omissions, directly or indirectly knowingly concerned in or a party to the contraventions alleged against the First Respondent….By reason of the matters above and pursuant to subsection 550(1) of the FW Act, [he] the Second Respondent was involved in and is therefore treated as having himself personally contravened each of the provisions the First Respondent is herein alleged to have contravened.” (See paragraphs 141 – 142, Amended Statement of Claim).

2. Section 550 of the Act reads:

   “(1) A person who is involved in a contravention of a civil remedy provision is taken to have contravened that provision.

   (2)  A person is involved in a contravention of a civil remedy provision if, and only if, the person:

   (a)  has aided, abetted, counselled or procured the       contravention; or

   (b)  has induced the contravention, whether by threats or promises or otherwise; or

   (c)  has been in any way, by act or omission, directly or indirectly, knowingly concerned in or party to the contravention; or

   (d) has conspired with others to effect the contravention.”

3. In substance, it would appear to be subsections (2) (a) and (c) that are relied upon by the applicant (see paragraph 141 of the amended statement of claim). 

4. While the question as to how many contraventions of the awards may have taken place it is yet to be determined, as is the question of any penalties that might be imposed as a result, it is clear beyond doubt that the first respondent has contravened numerous award provisions, even at this stage. It is therefore appropriate, given that evidence has been given and submissions made about the issue, for the court to determine the extent to which Mr Van der Zypp can be said to have been involved in those contraventions within the meaning of s.550 of the Act.

5. In order to establish liability under s.550 there are a number of things that the applicant has to prove. In Fair Work Ombudsman v Devine Marine Group Pty Ltd [2014] FCA 1365 (“Devine”) White J said at [176]:

   “In order to aid, abet, counsel or procure the relevant contravention, the person must intentionally participate in the contravention with the requisite intention:  Yorke v Lucas (1984) 158 CLR 661 at 667. In order to have the requisite intention, the person must have knowledge of “the essential matters” which go to make up the events, whether or not the person knows that those matters amount to a crime: Yorke v Lucas at 667. Although it is necessary for the person to be an intentional participant and to have knowledge of the matters or things constituting the contravention, it is not necessary for the person to know those matters or things constituting the contravention, it is not necessary for the person to know those matters or things do constitute a contravention: Rural Press Ltd v Australian Competition and Consumer Commission [2002] FCAFC 213; (2002) 118 FCR 236 at [159]-[160]. That is to say, it is not necessary that the accessory should appreciate that the conduct in question is unlawful.”

1. His Honour went on to point out, at [177]:

   “Actual, rather than imputed, knowledge is required.  So much was made clear in Giorgianni v The Queen (1985) 156 CLR 473 at 506-7 by Wilson, Deane and Dawson JJ:

   … [Offences of aiding and abetting and counselling and procuring] require intentional participation in a crime by lending assistance or encouragement.  They do not, of course, require knowledge of the law and it is necessary to distinguish between knowledge of or belief in the existence of facts which constitute a criminal offence and knowledge or belief that those facts are made a criminal offence under the law.  The necessary intent is absent if the person alleged to be a secondary participant does not know or believe that what he is assisting or encouraging is something which goes to make up the facts which constitute the commission of the relevant criminal offence.  He need not recognise the criminal offence as such, but his participation must be intentionally aimed at the commission of the acts which constitute it.  It is not sufficient if his knowledge or belief extends only to the possibility or even probability that the acts which he is assisting or encouraging are such, whether he realises it or not, as to constitute the factual ingredients of a crime.”

2. His Honour went on to say, at [178]:

   “The notion of being “knowingly concerned” in a contravention has a different emphasis from that of aiding, abetting, counselling or procuring a contravention.  To be knowingly concerned in a contravention, the person must have engaged in some act or conduct which “implicates or involves him or her” in the contravention so that there be a “practical connection between” the person and the contravention: (authorities omitted).”

3. His Honour then went on to consider whether or not it was necessary, in that case, for the Fair Work Ombudsman to establish that the alleged contravener had knowledge of the fact that a particular award applied to the work performed, the specific entitlements arising under the award and the particularised work by the employees concerned.  His Honour referred at [182] to Potter v Fair Work Ombudsman [2014] FCA 187 (“Potter”) in which case Cowdroy J held at [81]:

   “Knowledge that the Clerical NAPSA applied to the Employees is not identical to knowledge that a failure to pay the Employees in accordance with the Clerical NAPSA constitutes a breach of a civil remedy provision, although it is undeniable that the difference is a small one.  The Court finds that, to be an accessory to the underpayment contraventions, Mrs Potter must have known the Clerical NAPSA applied to the Employees.”    

4. His Honour went on to find that the approach of Cowdroy J was correct.

5. In this case it has been Mr Van der Zypp’s position that he had never heard of the Helicopter Pilots Award or the Pilots Award until these proceedings commenced.  It was on this footing no doubt that he would deny that he was accessorily liable.  His evidence (paragraph 101 of his first affidavit) was “Emma and I had never discussed awards.”

6. The difficulty with the assertion is, first, that the EBA clearly referred to the award.  It is clear that the respondents used the EBA for Northern Territory pilots.  Indeed, this is reinforced by the evidence of Mr Watson, who said he had executed a copy of such a document (he did not state in terms that it was the EBA but the clear inference is that it was) and who directly referred in his evidence to the award itself.

7. The evidence is otherwise all too clear.  Ms Bobridge had three conversations with Mr Van der Zypp about awards.  First she said that he needed to increase pay rates for the pilots in the Territory when she returned to Melbourne.  There was discussion about whether they could be made contractors.

8. Second, there was an anonymous complaint to WorkSafe in Northern Territory about pilots being made to work longer hours than normal on 31 October 2011 (see EB-52). When Ms Bobridge gave this to Mr Van der Zypp, he said if he paid the award rates he would not be able to run his business (paragraph 47, Ms Bobridge’s second affidavit).

9. Thirdly, in about October 2012 Mr Andrew Forbes made a complaint that he had been underpaid.  Although Mr Van der Zypp said this was nothing to do with his company it is quite clear that it was brought to his attention and he again said words to the effect that if he had to pay award wages he would have to shut down the business.

10. The thesis that Mr Van der Zypp was unaware of the awards is unsustainable. It is noteworthy that Mr Van der Zypp has clearly known all about the award (on his own version of events), at least since the pleadings in this case were served upon him, but that he continues to employ employees like Mr Williams at the pre-existing rate essentially that he paid to Ms Bobridge and others.  He simply acts as though awards are of no moment to him.

11. I further note the conversation with Mr Banks referred to at paragraph 20 of Mr Banks’ affidavit.  Having set out the discussion about the fact that Mr Van der Zypp was underpaying his pilots the paragraph concludes “We discussed that there may also be legal action against him because he did not pay award rates.”  I accept that this conversation took place and although it is not dated there is no question that Mr Van der Zypp knew about the awards and the requirement to pay award rates.

12. I note that counsel for the applicant very fairly conceded that this state of mind only applies to those contraventions in respect of underpayment of award rates of pay.  That is a proper concession given the approach adopted by White J in applying Potter in Devine.

13. It should be noted that I comprehensively reject Mr Van der Zypp’s assertion to the effect that he simply ran what might be described as the piloting side of the business.  He did not leave the administration wholly to others although necessarily much of the administrative work was delegated.  Mr Van der Zypp impressed me as being a gentleman very well concerned with his own business interests and with a keen eye for them.  I do not accept for a moment that he was not aware of the existence of the award and the fact that whatever he was paying was substantially underneath the wage rates in it.  I do not accept his assertion that the provision of accommodation and utilities, as it were, led him to believe that he was paying the award rate.  He was well aware that he was underpaying the award rate because that is what he told Ms Bobridge.

Conclusion

1. It is apparent that Ms Bobridge has substantially succeeded in her claim.  With the exception of the claim for allowance at Yulara and the claim for uniform allowance she has been entirely successful.  Subtracting those amounts ($5,478.90, Yulara and $1,003.60, uniform allowance) from the amount claimed produces the figure of $153,825.36. There will be judgment against the first respondent for that amount.

2. The cross-claim is entirely dismissed for the reasons given.

3. I have determined that Mr Van der Zypp was involved within the meaning of s.550 of the Act with the underpayments of award wages to Ms Bobridge. I see no need to issue a declaration to this effect at this time. I will seek further submissions as to what orders, however, should be made to reflect Mr Van der Zypp’s accessorial liability.

4. The question as to whether any declarations are necessary and/or appropriate is a matter than can be dealt with when the matter is further heard as to the issue of what penalties, if any, should follow as a result of the contraventions that these findings would support.

I certify that the preceding four hundred and fifteen (415) paragraphs are a true copy of the reasons for judgment of Judge Burchardt

Date: 5 October 2016

CORRECTIONS

1. Cover Sheet and Orders: Page 3, Order (1) insert “less any amounts paid pursuant to order 4 below”.

2. Cover Sheet and Orders: Page 3, insert Order (3) “The matter be adjourned to 23 November 2016 at 10.15 am in Melbourne”.

3. Cover Sheet and Orders: Page 3, insert Order (4) “The Second Respondent pay the Applicant $57,644”.

4. Cover Sheet and Orders: Page 3, insert Order (5) “The Applicant is to file and serve written submissions by the 25 October 2016”.

5. Cover Sheet and Orders: Page 3, insert Order (6) “The Respondents’ are to file and serve written submissions by the 15 November 2016”.