Bristow-Stagg and Civil Aviation Safety Authority - [2001] AATA 383

DECISION AND REASONS FOR DECISION [2001] AATA 383

ADMINISTRATIVE APPEALS TRIBUNAL )

) No A2000/105

GENERAL ADMINISTRATIVE DIVISION       )
           Re      BARRY BRISTOW-STAGG
  Applicant

And CIVIL AVIATION SAFETY AUTHORITY
Respondent
DECISION

Tribunal Deputy President B.H. Burns

Date7 May 2001
PlaceCanberra

Decision      The decision of the Tribunal is that the decision under review is affirmed.
  …………......Signed........................
  DEPUTY PRESIDENT B H BURNS
CATCHWORDS
CIVIL AVIATION – hot air balloons – cancellation of maintenance authority – absence of certificate of airworthiness – examination to test the competence of the applicant to hold a maintenance authority – decision affirmed.
Civil Aviation Regulations 1988
Civil Aviation Authority v Coburn [1996] 905 FCA 1

REASONS FOR DECISION

7 May 2001 Deputy President B.H. Burns

This is an application for review by Mr Barry Bristow-Stagg ("the applicant") for review of a decision of a delegate of the Civil Aviation Safety Authority ("the respondent") dated 10 March 2000 to cancel under r269(1) of the Civil Aviation Regulations 1988 ("the Regulations") the authority to perform and certify for the completion of maintenance of hot air balloons issued to the applicant pursuant to r33B(1)(a) of the Regulations.
The Tribunal had before it the documents lodged pursuant to s37 of the Administrative Appeals Tribunal Act 1975 (the "T" documents) together with other documentary evidence tendered by the parties by way of exhibit and also the parties' written submissions. Oral evidence was given by Mr Bristow-Stagg in support of his own case together with Mr Daniel Galbraith and Mr Graham Knight. Mr William Hines and Mr Nicholas Koch were called in support of the case presented by the respondent.
The applicant was represented by Mr McKeown and the respondent was represented by Mr Arthur, both of counsel.
background
By way of background, the Tribunal makes the following findings of fact which were agreed as between the parties:
(a)On 11 April 1991, the applicant was granted a maintenance authority that was limited to maintenance of hot air balloons after undertaking an oral examination administered by Mr W.R. Hines (T3/6-7). The applicant exercised the rights of that maintenance authority without complaint from the respondent until 1999.
(b)On 1 June 1992, the ownership of a Cameron hot air balloon, registration mark G-LPGO, was transferred to the applicant from a company in the United Kingdom (T33/64). In May 1992, the applicant had reserved the Australian registration mark VH-LPO for this balloon (T32/63).
(c)On 8 April 1993, the applicant completed an "Application for Registration of an Australian Aircraft" form in relation to the G-LPGO balloon (T34/65) and on 10 June 1993 the respondent sent the applicant an Australian certificate of registration for the balloon with the new registration mark VH-LPO (T38/70-71).
(d)On 31 March 1999, Mr W. Hines, Acting Manager for Airworthiness at the Jandakot District Office of the respondent, sent the applicant a letter indicating that he had become aware that the applicant's VH-LPO balloon had been operating without ever having been issued an Australian certificate of airworthiness and that the applicant, being the holder of a valid maintenance authority, had carried out annual maintenance and certified the balloon fit for flight when there was no certificate of airworthiness (T6/10).
(e)On 27 April 1999, the applicant and Mr R. Ellis, a delegate of the respondent, completed an "Application for Issue of a Standard Certificate of airworthiness" for VH-LPO (T10/15-16) and on 28 April 1999, an Australian certificate of airworthiness was issued to the applicant (T11/17-18).
(f)On 21 June 1999, Mr Hines wrote to the applicant, requesting that the applicant undertake an examination to test his competency as the holder of a maintenance authority to carry out maintenance on balloons on the basis that the applicant had flown and certified his VH-LPO balloon without a certificate of airworthiness or nominated maintenance schedule (T13/21-23).
(g)On 9 December 1999, the applicant sat the examination and failed, receiving a mark of 28% (T40/72).
(h)On 21 January 2000, the applicant sent the respondent a letter outlining the reasons why he thought the examination was unfair (T27/49-53). On 29 February 2000, the respondent replied to this letter, responding to the issues that the applicant raised (T28/54-56).
(i)By letter dated 10 March 2000, the respondent cancelled the applicant's balloon maintenance authority (T30/61-68).

the evidence
the applicant

The applicant told the Tribunal that he was born on 20 September 1935 and is currently 65 years old. He has lived all his life in Northam, Western Australia and is now retired. After completing a steam and diesel fitter apprenticeship, he worked for the railways, before undertaking work on bulldozers and diesel trucks. The applicant then worked for the State Energy Commission, maintaining its vehicles and plant until 1968 before taking over a private brake and clutch business that he ran and owned for approximately 30 years.
The applicant testified that he was introduced to flying hot air balloons in 1978 and received his first 12-month licence to fly hot air balloons in 1980. After receiving his licence, he bought a second-hand balloon from England. At that time, certificates of registration and airworthiness were not required, and as he was a mechanic and possessed a gas licence, he did the maintenance and repairs on the balloon himself in accordance with the manual he received from the balloon's manufacturer. He said that he also helped other balloon-owners in his aero-club with balloon maintenance.
The applicant told the Tribunal that he was State Champion in hot air ballooning in Western Australia in 1983 and had also flown balloons overseas in Hong Kong and in France, representing Australia in the 1983 France World Championships. The applicant estimated that he would have in excess of 450 hours of flying balloons, with most flying done during balloon meets. The applicant told the Tribunal that he currently owns two hot air balloons and his wife also owns one.
The applicant explained to the Tribunal that he applied for a balloon maintenance authority in 1991 because there were few people available to certify hot air balloons as airworthy. The applicant testified that he went to the respondent's District Office at Jandakot and Mr Hines, the airworthiness inspector at the time, asked him questions out of the maintenance schedule from his Cameron balloon manual. The applicant testified that at the time he applied for the maintenance authority, Mr Hines said that he was aware that the applicant had been flying balloons for a long time and seemed to understand and know the requirements. The applicant said that he was not asked any questions about the regulations, the Civil Aviation Act 1988 ("the Act") or the Civil Aviation Orders in place at the time.
The applicant said that after obtaining the maintenance authority, he would inspect other amateur balloonists' balloons for airworthiness and do whatever maintenance was required or tell them what needed to be done before he could certify the balloon for airworthiness. In examining a balloon, the applicant said he would refer to the manufacturer's manual because every balloon's components are slightly different. The applicant said that he was aware of any Airworthiness Directives issued by the respondent in relation to a particular balloon because he placed all Directives sent to him in a file and when he was looking at a particular balloon, he would refer to the file to ascertain whether there had been compliance with that Directive.
The applicant testified that he started formally inspecting balloons in 1992 and continued to do so until his balloon maintenance authority was cancelled in March 2000. Up until that point in time, he said he had encountered no difficulties with the respondent, no allegations were made that he was not carrying out his functions properly, and none of the balloons he inspected crashed or failed in any way.
The applicant told the Tribunal about the circumstances in which he applied for an Australian Certificate of Registration for his VH-LPO balloon. He had purchased four balloons from Hong Kong Balloon and Airship Club in 1992 and one of the balloons, G-LPGO (now VH-LPO), had a British Certificate of Airworthiness (Exhibit A3). The applicant told the Tribunal that he had formally reserved the registration numbers VH-LPO in May 1992 and subsequently sent to the respondent in Canberra a completed change of ownership form, a completed Australian registration form and his British Certificate of Airworthiness. The applicant said that he did not keep any copies of the documents he sent away. During cross-examination, the applicant denied that he sent the first application forms on 8 April 1993 and testified that he sent the forms earlier than that date.
The applicant gave evidence that the papers got lost for 12 months and it was not until he had a discussion with some of the respondent's employees at a balloon meet about the fact that his balloon was still displaying a British registration sticker that the respondent became aware that the applicant was still waiting for his registration papers. The applicant gave evidence that he subsequently received an Australian certificate of airworthiness when he eventually received the certificate of registration for VH-LPO. He said that the certificate of registration and certificate of airworthiness were exactly the same size and colour and were stapled into the back of his balloon logbook. The applicant was shown during cross-examination a letter written by him on 20 April 1999 to Mr Hines at the Jandakot office of the respondent (T8/12) in which he stated that he had received a certificate of registration from the respondent but no Australian certificate of airworthiness. His explanation as to why this was so was in the following terms (Transcript p55):
"I am not a vindictive person. And I realised that somewhere something had gone wrong. Rather than accuse anyone I took the brunt of it. I said, okay – they said we never issued one and I said I'm sure you did. I had no proof. I never photocopied it. So I said, righto, I'll accept that and wrote a letter to say, okay. And there is another letter saying, how about – you know, doing the right thing and issue one. But I admit I did not want to accuse anyone of anything. I said, all right, if you say that's what it is we'll leave it at that. Personal conversation, let's clear it, get it over with but it didn't finish up that way. I'd made a dreadful mistake writing that. I'll admit that without any hesitation. I should never, looking back, I should never have answered that letter.
In that fashion?--- In that fashion."
The applicant testified that in 1993, he owned another balloon, VH-HXE, which did have the required documentation. The applicant said that he sent a letter to the respondent and the required documentation came back automatically.
The applicant discovered that he did not have a certificate of airworthiness for VH-LPO while he was at a balloon meet in Canberra in March 1999. During check-in of his VH-LPO balloon, he had to produce his logbook, maintenance schedule and various other documents, including his certificate of airworthiness. The person carrying out the inspection could not find the certificate of airworthiness. The applicant was referred to Mr Mike Cleaver, Sport Aviation Inspector, who was to check whether or not the applicant had a valid certificate on his laptop computer, but it was not working. When the applicant went to see Mr Cleaver again subsequently, Mr Cleaver was still unable to use the laptop but did not say that the applicant could not fly his balloon. Assuming everything was okay, the applicant did not bother to speak to Mr Cleaver again and flew throughout the whole festival. The applicant testified that when he returned home, he was told that he was never issued with a certificate of airworthiness.
The applicant testified that he had successfully registered his VH-LPO balloon at a balloon meet in the Barossa Valley one year prior to the 1999 Canberra balloon meet where it was discovered that the certificate of airworthiness was missing. The applicant said that he believes, therefore, that the certificate of airworthiness was present at the earlier meet in 1998 but must have been lost during that year, before the Canberra balloon meet in 1999. During cross examination, the applicant asserted that it was his belief that there was, at all times, a certificate of airworthiness with respect to VH-LPO and this could be proven by the fact that many people in the ballooning fraternity had checked his balloon paperwork at each balloon meet up until the point that it went missing. The applicant asserted that it was standard practice at balloon meets for the organisers to check that each balloon had a certificate of airworthiness. The applicant speculated that it was possible that the disappearance of the certificate was associated with the usage of his logbook and balloon by student pilots.
The applicant testified that he had done all of the required maintenance on the VH-LPO balloon except some minor repairs to the side of the basket, which were done by someone else. The applicant said that he had never checked commercial balloons and did not intend to certify them.
The applicant said that after discovering that the certificate of airworthiness was missing, the respondent contacted him and required him to sit an examination. The applicant gave evidence that he was willing to sit the exam on the first time he went to the respondent's office at Jandakot but the examination questions were not available. The applicant said that the next time he went to Jandakot, Mr Hines, the airworthiness inspector, formed the opinion that the applicant was not prepared for the examination and gave him a handwritten outline of the study requirements and another document entitled "LAME Study Package Airworthiness Administration (AA)" (Exhibit A2). The applicant said that it took him about six days to download all of the necessary information from the Internet and that left him another seven or eight days to look at the information before sitting the examination.
The applicant testified that the next time he went to Jandakot, Mr Ray Ellis, the new airworthiness inspector, allowed him to sit the examination. The applicant was referred to the examination question and answer sheet provided by the respondent (Exhibit R7) and the original exam answer book (Exhibit R9). The applicant told the Tribunal that he believed that one of the questions was not on the original question sheet and queried why several of his answers had been marked as incorrect when he believed his answers were at least partially correct. The applicant told the Tribunal that he believed that the examination, with its focus on the aircraft legislation and regulations, was unfair and that knowing the specific numbers of regulations was not relevant to the maintenance that he has carried out on balloons. The applicant said that other balloon owners and pilots have never questioned him about the legislation, regulations or orders and he himself has never looked them up. The applicant said that while he has held the balloon maintenance authority he has never been asked by the Civil Aviation Authority or the respondent to have particular knowledge of the legislation or regulations.
The applicant testified that he did not possess a copy of the Regulations but they were on file at his balloon club. The applicant admitted that he did not have ready access to any parts of the Civil Aviation Orders and he was unsure when he last consulted a copy of any part of the Orders. When asked during cross-examination whether before undertaking a periodic inspection, he went through any checking of relevant legislation, regulations, orders and Airworthiness Directives, the applicant gave evidence that he did not but was aware of what was contained within them. During re-examination, the applicant said that if it was of paramount importance to have up-to-date knowledge of the legislation, then in the future, he would like this to be brought to the attention of all who apply for balloon maintenance authorities. The applicant said that he receives notification of any change to the legislation and changes are discussed among members of the ballooning community.
The applicant told the Tribunal that his maintenance authority only entitled him to recommend a balloon for airworthiness for the next 12 months, stating that the balloon satisfies the requirements of the manufacturer's manual. However, the applicant admitted that his role as maintenance authority person is extremely important because after he makes a recommendation, the balloon continues to be used and the respondent does not usually step in.
The applicant testified in re-examination that he obtained a certificate of airworthiness for his balloon, VH-LPO in 1999, after taking it down to Jandakot, where Mr Ray Ellis noted the serial number of the basket and balloon but did not examine the balloon any further. Mr Ellis then signed the certificate of airworthiness.
mr william hines
Mr Hines was called to give evidence by telephone from Western Australia for the respondent. Mr Hines told the Tribunal that he was a retired airworthiness inspector who was employed by the respondent in Western Australia for 22 years. He recalled having some dealings with Mr Bristow-Stagg over the last nine to 10 years.
Mr Hines was referred to a document entitled "Application for Issue of Maintenance Authority" (T3/6-7), which was completed by the applicant and Mr Hines in April 1991. Mr Hines told the Tribunal that he had no independent recollection of completing the form or orally examining the applicant on balloon legislation and balloon maintenance.
Mr Hines told the Tribunal that he recalled receiving some information in March or April 1999 that indicated that the applicant was operating his VH-LPO balloon without a certificate of airworthiness, and that he then wrote to the applicant seeking an explanation. Mr Hines also recalled that the applicant made an application for a certificate of airworthiness for VH-LPO in April 1999 and that in December 1999, the applicant came in and sat an examination. Mr Hines agreed that he had a conversation with the applicant on 11 November 1999 and that he had reached the conclusion that the applicant did not have sufficient knowledge to sit the examination that day. Mr Hines agreed that he provided the applicant with three pages of information to assist him in studying for the examination (Exhibit A2). Mr Hines admitted that he had referred the applicant to sections of the Act and Regulations relevant for all aircraft and that a lot of this information was background knowledge not directly relevant to the applicant carrying out a periodic inspection of a balloon.
Mr Hines testified that it was important for a balloon maintenance authority holder to have knowledge of the relevant legislation because the certification of maintenance work on the balloon is dictated by the legislation. The person who does the certification and maintenance for a balloon belonging to a private owner is seen as the person who can do things properly for the owner and who understands the legislative requirements.
During cross-examination, Mr Hines agreed that up until 1999, he had never heard any adverse reports from people concerning the applicant's maintenance work and certification and as he personally had some years of close contact with the balloon fraternity before Mr Ellis took over, he would have known if there were any problems. Mr Hines admitted that as far as the flying and construction of balloons was concerned, he would defer to the applicant's knowledge. Mr Hines said that when issuing the maintenance authority, he relied upon the applicant's past experience in the balloon fraternity. Mr Hines explained that at the time the applicant was given the maintenance authority, the respondent was in the formative stages of control of the balloon fraternity and prior to this time, people performed maintenance on balloons without having an authority. Mr Hines told the Tribunal that it was his belief that maintenance authorities became necessary for those carrying out inspections and maintenance on balloons from 1991 onwards because of the international standard that maintenance of aircraft should only be undertaken by suitably qualified and authorised persons.

Mr Hines outlined to the Tribunal during cross-examination the type of documents someone in possession of a maintenance authority carrying out a periodic inspection would need to examine: the balloon manufacturer's manual, any relevant Airworthiness Directives or any documents evidencing compliance with relevant Airworthiness Directives, the certificate of airworthiness and the flight manual.
Mr Hines was then referred to the examination questions (Exhibit R7) and agreed that many of the questions were not directly relevant to a person with a maintenance authority carrying out a 100 hourly or 12 monthly inspection, nor did they bring up issues that would be necessary to be considered by the maintenance authority person when he or she carried out the inspection, and several of the questions were ambiguous in terms of the answers required. Mr Hines testified that he had requested from the respondent's examination section an exam that was equivalent to what is given to a new applicant for a balloon maintenance authority and was tailored to the legislative requirements rather than the mechanics of balloon maintenance.
Mr Hines agreed during cross-examination that it makes no difference to the safety of a balloon if a certificate of airworthiness has not been issued but the balloon was inspected by a qualified person for compliance with the flight and manufacturer's manuals. However, it was his opinion that the certificate of airworthiness is part of the system that ensures safety. Mr Hines said that the certificate of airworthiness indicates that in the initial past, the balloon was a good design, had all the requirements met for Australian operation and subject to continual periodic inspections and maintenance it would be a safe balloon.
mr richard arnold koch
Mr Koch was called to give evidence for the respondent. Mr Koch told the Tribunal that he lives in Perth and is the West Area Office Team Leader Airworthiness for the respondent. Mr Koch referred to his written statement dated 18 August 2000 (Exhibit R3).
Mr Koch outlined to the Tribunal the type of maintenance that an aircraft maintenance authority holder is able to carry out. The maintenance authority holder can, in accordance with approved data (the manufacturer's data or modifications approved by authorised persons), carry out inspections on aircraft and carry out minor repairs. Certifications in the case of a balloon are made in the logbook and the requirements within the Regulations need to be addressed. Mr Koch said that a maintenance authority holder is equivalent to a licensed engineer working on any other aircraft in Australia. Mr Koch testified that a balloon maintenance authority holder could carry out a lot more work on an aircraft than a pilot of the aircraft and could carry out work on both private and commercial balloons.
Mr Koch gave evidence that the 12 monthly or 100 hourly periodic inspection carried out by a balloon maintenance authority holder is a requirement under the Regulations. He said that in order to carry out such an inspection, the maintenance authority holder is required to examine the manufacturer's maintenance data, the maintenance schedule, the aircraft log book, the Civil Aviation Orders applicable to the balloon, the general Airworthiness Directives and any other relevant publications and in addition, the maintenance authority holder should also have access to equipment used to test the balloon.
Mr Koch agreed during cross-examination that the respondent has a number of people on its records that are authorised to annually inspect balloons but does not keep those people up to date on the literature required for the inspection of particular balloons, for example, Airworthiness Directives issued where there is a safety or flight issue. Rather, it is up to the persons who are authorised or approved to hold licences to ensure that they receive the publications necessary to carry out their function, for example by registering themselves with organisations such as Air Services Australia for automatic distribution of such information.
Mr Koch testified as to the numerous regulatory requirements set out in the Act, Regulations and Civil Aviation Orders of which the balloon maintenance authority holder ought to be aware, including information on repairs and maintenance, record-keeping, defect reporting, powers of the maintenance authority holder, and how to certify for Airworthiness Directive compliance.
Mr Koch told the Tribunal during cross-examination that the applicant had breached the Act and Regulations when he actually certified the periodic inspections on his own balloon and flew the aircraft on numerous occasions without an Australian certificate of airworthiness. Mr Koch told the Tribunal during cross-examination that the certificate of airworthiness plays a very important part in the regulation of that aircraft's safety as it is required prior to an aircraft commencing a flight in Australian territory and is a certification that at that point in time the aircraft met the certification requirements. He agreed that the certificate of airworthiness is issued only once and has no expiry date. Mr Koch explained to the Tribunal during cross-examination that there are limited special circumstances where a certificate of airworthiness has not been required prior to flight, none of which apply to the applicant's situation.
Mr Koch told the Tribunal that it is important for a balloon maintenance authority holder to have knowledge of the original airworthiness certification process set out in the Act, Regulations and Orders because the periodic inspection is a re-validation of the certification of airworthiness – a "check" to see that the balloon still complies with the manufacturer's standards and any Australian requirements on that balloon, set out in the flight and manufacturer's manuals and in Civil Aviation Order 101.54.
Mr Koch said that when the Australian Balloon Federation advised the respondent of the fact that the applicant did not have a certificate of airworthiness for his balloon, the respondent decided to determine if the applicant in fact had the knowledge required of a balloon maintenance authority holder. The respondent organised for a written examination to be prepared and the applicant failed this examination, receiving 28%, considerably less than the pass mark of 75%. Mr Koch told the Tribunal that his conclusion from the result of this examination was that the applicant did not have the requisite knowledge. Mr Koch said that the applicant was told that he could sit the aviation legislation examination again and that if he passed it, he would receive his maintenance authority back.
Mr Koch told the Tribunal that the examination was drafted by the Aircraft Maintenance Engineer's licensing section in Canberra and was specifically tailored around knowledge that balloon maintenance authority holders should have and the certification requirements for a certificate of airworthiness.
Mr Koch said during cross-examination that if the applicant was originally issued with a certificate of airworthiness for his balloon and CASA had lost the applicant's records, then the applicant would not have been in breach of the regulations. However, considering the applicant's knowledge of the regulatory requirements, Mr Koch said he could not say that the balloons upon which the applicant had carried out periodic inspections would be fit for flight or safe.
Mr Koch told the Tribunal that aviation in Australia and in any other country that is signatory to the International Civil Aviation Organization convention is required to comply with international law. In the past, Australia has adopted international balloon design and operational standards. Civil Aviation Order 101.54 now sets out the Australian design standards and certification requirements for Australian balloon manufacturers necessary for a balloon to initially gain a certificate of airworthiness and then to be able to be operated. Mr Koch testified that Civil Aviation Order 101.54 continues to be important after the airworthiness certification process to ensure that the balloon retains its original certification basis. If the applicant was unfamiliar with the airworthiness requirements and tests relating to hot air balloons set out in Civil Aviation Order 101.54 and related schedules, then compliance would not have been certified in any of the log books and in particular in his own logbook and the inspections would not have been carried out properly.
During re-examination, Mr Koch testified that if the applicant was unaware of an Airworthiness Directive in force that related to a particular type of balloon, there would be no way of knowing whether that Airworthiness Directive had been complied with or whether the balloon had been safe when certified by him. However, during further cross-examination, Mr Koch admitted that he did not know that the applicant was registered to receive Airworthiness Directives.
mr graham knight
Mr Knight was called to give evidence for the applicant by telephone. He referred to his written statement dated 15 June 2000 (Exhibit A1). Mr Knight said that he holds a balloon pilot's licence but has never held a balloon maintenance authority. Mr Knight testified that the applicant had performed annual maintenance checks on his balloons in 1991, 1993 and 1995 when Mr Knight was in the Barossa Valley. Mr Knight told the Tribunal that to help the applicant in carrying out the annual maintenance checks, he provided the applicant with a flight and balloon manual. Mr Knight recalled that each annual maintenance check took approximately three to four hours and that the applicant physically inspected the balloon.
Mr Knight told the Tribunal during cross-examination that the applicant has not carried out any checks on his balloon since 1995 because there is a person who checks his balloon within Victoria, where Mr Knight resides. Mr Knight told the Tribunal that he has a certificate of airworthiness on the front of his balloon log book and that he was aware that he could not fly a balloon unless it had a certificate of airworthiness.
Mr Knight told the Tribunal that the applicant always carried out a detailed inspection, inspecting each panel of the balloon envelope. Mr Knight told the Tribunal that during one periodic inspection, the applicant observed small holes in the balloon envelope and deemed Mr Knight's balloon an unflyable balloon until repaired.
mr daniel paul galbraith
Mr Galbraith was called to give evidence via video link for the applicant. Mr Galbraith told the Tribunal that he lives in the ACT and has been flying hot air balloons for 20 years and has organised balloon events in Australia since 1981. Mr Galbraith told the Tribunal that he ran the 1998 Canberra International Balloon Fiesta and referred to a document entitled "Check in Sheet" (Exhibit A5). Mr Galbraith explained that he had put a different header to the check-in sheet, but it was the same check-in sheet as that used at the 1998 Balloon Fiesta. Mr Galbraith testified that he had used that check-in sheet format since about 1990.
Mr Galbraith explained that the purpose of the check-in sheet was to ensure the legality of the balloon event. Mr Galbraith referred to a Federation Aeronautic International (the international body for sport aviation) document which states that a pilot is required to show his or her pilot certificate, balloon log book, private log book, certificate of registration and certificate of airworthiness. Mr Galbraith explained that in addition to these requirements, he also checked for insurance and whether the instruments and other equipment within the aircraft conformed to the standards required. Mr Galbraith testified that every balloon must fulfil the items on the check-in sheet before being allowed to compete.
Mr Galbraith said that the applicant took part in the 1998 Canberra International Balloon Fiesta and gave his opinion that if the applicant did not have a certificate of airworthiness for his balloon, he would not have been allowed to participate because of the rules of the event organiser, the Canberra Events Corporation.
Mr Galbraith told the Tribunal during cross-examination that there were about 46 to 50 balloons competing in the Canberra Festival and he did not personally check in every balloon, there being a team of experienced people assisting with the check in. Mr Galbraith said that it was his responsibility to personally check the sheets at the end of the event before handing them to the event organiser.
Mr Galbraith said that he did not participate in the check in process at the 1999 Canberra Festival and did not know why the applicant was allowed to fly without a certificate of airworthiness at that festival. Mr Galbraith said that he believed that the Sport Aviation Inspector for the Civil Aviation Authority made the decision, being aware that the applicant's certificate of airworthiness was missing on the Friday night of the Festival.
During further cross-examination, Mr Galbraith told the Tribunal that only the balloon's paperwork, certificates and logbook are examined at check-in and the balloons are not inspected physically. Mr Galbraith testified that the pilot's method of keeping the certificate of airworthiness with the balloon log varied – it may be stapled or glued in or it might be in a ring binder.
applicant's submissions
Mr McKeown submitted on behalf of the applicant that there was no examination of the Air Legislation, Regulations and Orders prior to the applicant originally being granted the balloon maintenance authority and there was no evidence to support a submission by the respondent that the applicant was unsafe in his performance of his function as a balloon maintenance authority. The applicant carried out 8 years of periodic inspections of the balloons and there was no evidence to suggest that the applicant did not carry out these inspections correctly.
It was submitted by Mr McKeown that the duties of a balloon maintenance authority holder do not require an extensive knowledge of Air Legislation, Regulations or Orders because the duties only consist of physical examination of the hot air balloon and certification that each balloon is safe to fly. It was also submitted that an extensive knowledge of the Regulations as applicable to conventional aircraft is not required because balloons are special in nature and, unlike conventional aircraft, they are unsophisticated with few moving parts. The applicant submitted that the balloon maintenance authority holder is not required to educate those that fly balloons on issues of what they may do within the Regulations.
Mr McKeown submitted that when carrying out periodic inspections, the balloon maintenance authority holder's source material is found in the balloon manual provided by the manufacturer and in Airworthiness Directives forwarded by the respondent to the applicant and the balloon owner, rather than in the legislation. The applicant submitted that a balloon maintenance authority holder does not need to know about the aircraft legislation in order to carry out his inspections. It is a practical question as to whether he can carry out the inspection, not a theoretical question of where he gets the power or authority to do what he does.
Mr McKeown submitted that the applicant's balloon maintenance authority did not authorise him to do any maintenance other than that which a pilot of a balloon could do and the applicant's balloon maintenance authority was not issued under Regulation 42ZC but Regulation 33B(1)(a).
In relation to the missing certificate of airworthiness, it was submitted that a certificate of airworthiness was automatically issued to the applicant when he changed registration of his balloon from the United Kingdom to Australia and the respondent had lost the applicant's records. It was submitted in the alternative that the applicant sent the UK Certificate of Airworthiness for his balloon to the respondent with his registration application and that the applicant may have made a mistake in thinking that he had received an Australian certificate of airworthiness. Mr McKeown submitted that the respondent should have a system requiring the obtaining of a certificate of airworthiness before an aircraft could be registered.
In addition, it was submitted that the applicant's inability to produce a certificate of airworthiness did not reflect upon his duties as balloon maintenance authority holder. Mr McKeown submitted that the certificate of airworthiness is issued once, sometimes even without a physical inspection of the balloon by the respondent during the certification process and it is the log book of the balloon that records certification following periodic inspections and not the certificate of airworthiness that indicates whether the aircraft is safe to fly.
Mr McKeown submitted that it was unreasonable for the respondent to make the applicant undertake an examination solely because his certificate of airworthiness was missing. The applicant submitted that the respondent did not inquire whether the applicant was doing his job well but simply deemed that he was not able to do it because he could not produce a certificate of airworthiness when requested to do so.
Mr McKeown submitted that the examination that the applicant sat was unfair in that most of the questions had little if anything to do with the duties of an inspector of balloons. It was submitted that the applicant answered correctly all of the questions that were directly related to his duties as balloon maintenance authority holder. Mr McKeown submitted that given the applicant's seniority of years and proven experience in ballooning, it was not reasonable to require him to undertake a written examination. The applicant could have been counselled or trained to the respondent's new standard.
the respondent's submissions
Mr Arthur submitted on behalf of the respondent that the applicant's assertion that he held a certificate of airworthiness since 1993 was not supported by documentary evidence and was inconsistent with the applicant's previous statements and actions. Mr Arthur submitted that there was no record by the respondent of a certificate of airworthiness being issued. In a letter dated 31 March 1999 (T6) Mr Hines asked the applicant if it was correct that VH-LPO had never been issued with a certificate of airworthiness and the applicant's reply of 20 April 1999 (T8) contained no suggestion that he had ever previously obtained a certificate of airworthiness. It was submitted that the applicant's actions in subsequently applying to the respondent for a certificate of airworthiness were inconsistent with having already been issued with one. It was submitted that the applicant also stated in a letter dated 8 September 2000 that at the time he received a certificate of registration in 1993, no other paperwork was received. Further, the applicant claimed that he had sent his UK Certificate of Airworthiness to the respondent in about 1993, yet the UK Certificate had expired on 10 January 1990 (Exhibit R5). It was submitted that the respondent's records (T31/62) show that the applicant supplied to the respondent a copy of the UK Certificate of Registration but not a Certificate of Airworthiness.
Mr Arthur submitted that the fact that the applicant was allowed to fly at the 1998 and 1999 balloon festivals did not suggest that the applicant had a certificate of airworthiness but rather that the checking process was not foolproof. In addition, Mr Arthur submitted that the evidence suggested that the organisers allowed the balloon to fly in the 1999 Festival on the basis of a declaration by the applicant that he had the required documentation (T5).
Mr Arthur submitted that the decision by the respondent to require the applicant to undertake an examination under r33 of the Regulations is not the reviewable decision before the Tribunal – the reviewable decision is the decision to cancel the applicant's airworthiness authority under Subregulation 269(1) of the Regulations. Mr Arthur referred the Tribunal to the Federal Court case of Civil Aviation Safety Authority v Coburn [1996] 905 FCA 1 to support this submission.

Mr Arthur submitted that requiring the applicant to undertake an examination to demonstrate his knowledge of aviation legislation as it related to balloon maintenance and operation was the least severe form of action that the respondent could have undertaken - the respondent could have prosecuted the applicant for breach of Section 20AA of the Civil Aviation Act 1988 or alternatively, it could have varied, suspended or cancelled his maintenance authority under r269 of the Regulations.
Mr Arthur submitted that in terms of preparation for the examination, the respondent's officers on two occasions provided a study guide to the applicant and suggested that he defer the examination until he had properly prepared for it (Exhibit R4). Mr Arthur also submitted that considering that the applicant had been operating pursuant to a maintenance authority since 1991, the respondent should not have been required to provide coaching to the applicant prior to the examination.
Mr Arthur submitted that the maintenance authority held by the applicant was not limited to certifying for private balloons and the scope of the authority was to perform and certify for the completion of maintenance on Australian aircraft pursuant to r42ZC of the Regulations. The applicant's maintenance authority was limited to maintenance of hot air balloons. Mr Arthur submitted that "maintenance" is defined in r2 of the Regulations to include work including modification or repair on the aircraft or a component that may affect the safety of the aircraft or testing or inspection for the purpose of ascertaining whether the aircraft is in a fit state to fly. Mr Arthur submitted that a maintenance authority holder has onerous responsibilities and that given that persons can be at risk when flying in a hot air balloon, each balloon needs to be properly maintained and inspected.
Mr Arthur submitted that the applicant was not competent to hold a balloon maintenance authority, based on several factors. First, that the applicant apparently operated a balloon VH-LPO from 1993 to April 1999 without the balloon having a certificate of airworthiness, an important document. Mr Arthur submitted that under Section 20AA(3) of the Act, it is a serious offence carrying up to 2 years imprisonment to operate an aircraft without having a certificate of airworthiness and to have operated an aircraft in contravention of this important provision indicates a serious lack of knowledge of the aviation regulatory regime. Mr Arthur submitted that this lack of knowledge was confirmed in the results of the examination undertaken by the applicant in which the applicant obtained a mark of only 28%, where the pass mark was 75%.
Second, Mr Arthur submitted that the applicant's knowledge of the aviation legislation, Regulations and Orders was inadequate and that the certification requirements set out in Civil Aviation Order 101.54 were important for anyone carrying out maintenance on hot air balloons to know.
Third, Mr Arthur submitted that the applicant's answers to the examination questions put to the applicant by the Tribunal during the hearing suggested that the applicant still did not have a sufficient knowledge of aviation legislation required for balloon maintenance.
Mr Arthur submitted that it is important for persons carrying out and certifying for maintenance, to have knowledge of the aviation legislation relevant to their work. Mr Arthur submitted that knowledge of the relevant Regulations and Orders is necessary in order to be able to certify that those Regulations and Orders have been complied with. Mr Arthur submitted that the danger in allowing the applicant to continue to hold a maintenance authority despite not knowing the aviation legislation was that no one, including the respondent as the safety regulator, could be confident that the applicant was carrying out his duties properly.
In addressing the evidence from the witnesses called by the applicant, Mr Arthur submitted that Mr Knight was not able to evaluate whether the applicant was competent to perform the tasks required of a maintenance authority holder as he did not hold a maintenance authority, had never tested persons for such a qualification and was not an expert in balloon maintenance. In relation to Mr Galbraith's evidence, Mr Arthur submitted that Mr Galbraith did not personally check to see if the applicant had a certificate of airworthiness before the 1998 balloon event and was reliant upon others to fulfil this task.
tribunal's findings reasons and decision
The Tribunal would indicate that it has given consideration to the whole of the evidence and to the submissions of the parties.
At the outset, the Tribunal would indicate that it is mindful that the decision under review is not the decision of the respondent to require the applicant to undergo, pursuant to r33 of the Regulations, an examination for the purpose of assessing his competency to hold the relevant maintenance authority. The decision under review is the decision by the respondent to cancel the abovementioned authority pursuant to r269(1) of the Regulations.
The Tribunal finds that between 10 June 1993 (the date when the applicant first registered his hot air balloon VH-LPO in Australia) and 28 April 1999 (the date when the applicant first obtained a certificate of airworthiness for VH-LPO) the applicant flew VH-LPO from time to time when it did not have a certificate of airworthiness, contrary to s20AA(3) and (5) of the Act.
The Tribunals reasons for the above finding are as follows: The Tribunal had the advantage of closely observing and listening to the applicant in the giving of his evidence. The Tribunal found the applicant's explanation in evidence as to why, in the light of his testimony that VH-LPO did have an issued certificate of airworthiness, he informed the respondent in his letter of 20 April 1999 (T8/12) that, in effect, he had never had issued to him such a certificate in relation to VH-LPO, unconvincing to say the least. His explanation in evidence was as follows: (Transcript p 55)
"I am not a vindictive person. And I realised that somewhere something had gone wrong. Rather than accuse anyone I took the brunt of it. I said, okay – they said we never issued one and I said I'm sure you did. I had no proof. I never photocopied it. So I said, righto, I'll accept that and wrote a letter to say, okay. And there is another letter saying, how about – you know, doing the right thing and issue one. But I admit I did not want to accuse anyone of anything. I said, all right, if you say that's what it is we'll leave it at that. Personal conversation, let's clear it, get it over with but it didn't finish up that way. I'd made a dreadful mistake writing that. I'll admit that without any hesitation. I should never, looking back. I should never have answered that letter.
In that fashion?---In that fashion."

The Tribunal rejects the explanation given by the applicant. The impression gained of the applicant by the Tribunal in the giving of the above evidence was of tailoring it to suit his own ends, namely to negate a picture being conveyed by his letter (if one accepted its contents) that he, a person authorised to carry out maintenance on hot air balloons, did not know right through to 1999 that an Australian certificate of airworthiness had to be issued before VH-LPO could lawfully fly.

The abovementioned explanation, namely, that the applicant falsely told the respondent that he had not been issued with a certificate of airworthiness because by his letter of 20 April 1999 he didn't want to accuse the respondent of any wrongdoing, does not sit at all well with his faxed letter to the respondent some months later on 1 November 1999 (T20/39-41) in which he again maintained that he had not been issued with a certificate of airworthiness. However, on this occasion, he in no uncertain terms, accused the respondent of failing to send to him the authority which he maintained he had requested and had paid for.
The Tribunal would also indicate that it found the applicant's evidence that a certificate of airworthiness had been issued for VH-LPO to be unconvincing. The giving of his evidence in this regard left the Tribunal with the distinct impression that the evidence did not reflect the true situation. It was more in the nature of an attempt to extricate himself from a situation of his own making.
Another reason for the above finding relates to the Tribunal's acceptance of the documentary evidence before the Tribunal which is clearly suggestive of the fact that the respondent never issued (prior to 28 April 1999) a certificate of airworthiness in relation to VH-LPO. That evidence is to be found at T5/9 (a search of CASA records which did not disclose any information as to whether or not a certificate of airworthiness had ever been issued) combined with the fact that the respondent was prepared to call further evidence that there was nothing on the relevant CASA file to show that a certificate of airworthiness had been issued and that if it had been issued it would be on that file. The nature of the proposed evidence was acknowledged by the applicant's counsel and the evidence was accordingly not called.
Further, in support of the above finding, is the applicant's letter of 20 April 1999 itself. The letter clearly states that the applicant did not receive in 1993 an Australian certificate of airworthiness. The contents of the letter of 20 April 1999 (T8/12) indicate in their very terms a considered response by the applicant to the respondent's letter of 31 March 1999 (T6/10) in which the applicant was given until 21 April 1999 to inform the respondent as to whether he had been operating VH-LPO for some years without a certificate of airworthiness and carrying out on it maintenance and certifying it fit for flight without the necessary certificate of airworthiness. The applicant's letter was not only a considered response but also detailed. It clearly constituted an admission on his behalf that what he had told the organisers of the Canberra Festival Balloon Fiesta earlier that month was not true, namely, that he had lost the relevant certificate of airworthiness (T5/9). The Tribunal notes that the applicant did fly his balloon throughout the above event after it was discovered that he was not able to produce the requisite certificate and that that was allowed by the organisers of the event.
As mentioned above, the applicant's letter to the respondent of 20 April 1999 was followed by a further letter from him which was faxed to the respondent on l November 1999 (T20/39-41). There is a distinct shifting of ground by the applicant in the two letters. The first refers to "requesting an Australian registration" and makes no mention of the applicant requesting a certificate of airworthiness, whereas the second relevantly refers to the applicant sending a form "requesting the necessary Australian Certificates" and refers to "the failure of the CASA in not issuing the necessary Certificate of Airworthiness as part of the original request after receiving payment for same." The Tribunal formed the impression that the second letter from the applicant was designed by him to minimize and perhaps negate the fact that he had flown VH-LPO for some years without a certificate of airworthiness and to create the false impression that most of the blame for this lay with the respondent – in other words, he had done all that he could have and his only error was in not checking that the respondent had provided him with all that was needed to fly VH-LPO.
Another matter which supports the Tribunal's finding relates to the thoroughness or otherwise in checking that the balloons which are to participate in events around Australia have a certificate of airworthiness before they are allowed to fly at those events. Evidence in the above regard was given by Mr Galbraith on behalf of the applicant. From Mr Galbraith's evidence the Tribunal accepts that check lists such as Exhibit A5 are utilized by the organisers of these events to ensure, amongst other things, that the balloons have the necessary certificate of airworthiness. Whilst the Tribunal acknowledges that Mr Galbraith would do his best to ensure that a balloon would not be allowed to fly without a certificate of airworthiness, the fact remains that the checking that balloons meet the required check list and have the certificate is in the hands of a number of people associated with the running of balloon events. The fact that the applicant was allowed to fly his balloon VH-LPO at the Canberra Festival Balloon Fiesta in 1999, after it was discovered that the applicant did not physically have a certificate of airworthiness, is a matter of concern. The applicant was allowed to fly his balloon over the period 6-15 March 1999 by the organisers of the event on the applicant declaring that there was a certificate of airworthiness for VH-LPO (T5/9). This clearly should not have happened. The fact that it did, coupled with the fact that the applicant at that time had held for some years a maintenance authority issued by the respondent, leads the Tribunal to conclude that the checking procedures employed at balloon events are not such as to preclude a balloon being operated at such events without the necessary certificate of airworthiness. The paramouncy of air safety dictates that balloons not be allowed to fly without the necessary certificate of airworthiness. The Tribunal is of the view that from time to time balloons may have been allowed to fly at such events which did not necessarily meet the requirements of the check list. The fact that the applicant was allowed to do so may, in part, be attributable to the fact that he is a well-known very experienced balloonist and known to hold an authority issued by the respondent to carry out maintenance on balloons. Whatever the reason, the Tribunal is satisfied that the checking procedures are not such as to prohibit the flying of balloons at these events which may not have certificates of airworthiness. The checking of such matters should not be left in the hands of those who, in turn, are organising the events in question. The fact that it is, inevitably will lead to a conflict of interest. Such conflicts of interest are not in the interests of air safety and certainly do not pay heed to its paramouncy. The checking in question should be carried out by an independent organization involved with ensuring the safe operation of hot air balloons. This clearly is a role for the respondent.
The Tribunal now turns to a consideration of the examination which the respondent required the applicant to undertake. There can be no doubt that the respondent was empowered by r33 of the Regulations to require the applicant, being the holder of an airworthiness authority, i.e. an authority to carry out maintenance on hot air balloons, to undergo an examination designed to test his competency as a holder of a maintenance authority and the Tribunal so finds. The applicant has, in his evidence, criticized the nature of the examination he eventually undertook. In relation to the events leading up to and associated with the examination, the Tribunal accepts the evidence put before the Tribunal by the respondent. Where the applicant's evidence in this regard was at variance with that evidence, it is rejected. The Tribunal gained the distinct impression that the applicant's evidence concerning the lead up to the taking of the examination, and the examination itself, was designed to convey a negative picture of the actions of the respondent and to minimize and negate the fact that he dismally failed the examination. The Tribunal found his evidence in this regard to be unimpressive and it is rejected. The Tribunal is of the view that the examination was fair and reasonable. The examination questions (and the Tribunal finds that they were as shown in Exhibit R10) were specifically directed to testing the applicant's knowledge and understanding of matters directly relevant to the maintenance of hot air balloons. They were important questions directed at testing the competency of the applicant to hold an authority to carry out maintenance on hot air balloons. The questions speak for themselves in this regard.
The applicant's criticism that the questions were really requiring the applicant to give section, regulation and other references and that the whole process was in the nature of a legislative test unsuitable for the practical task of carrying out balloon maintenance is flawed and vividly illustrates, in the opinion of the Tribunal, the applicant's lack of competence to hold the maintenance authority in question. Whilst a few of the questions did require the applicant to give a legislative reference, they were directed at indicating whether or not the applicant knew where to find the important information directly relevant to the maintenance of balloons. The rest of the questions were specifically directed at essential knowledge relevant to the maintenance of balloons which did not require any legislative reference. The failure of the applicant to appreciate the significance of having this requisite and essential knowledge was evident from time to time in the giving of his evidence and mirrored in his exam results. In this latter regard the Tribunal finds that the marking of the exam was fair and reasonable. It truly showed the paucity of the applicant's knowledge and reflected adversely upon his competency to hold the authority in question.
The Tribunal acknowledges and takes account of the fact that the applicant has over a number of years carried out maintenance and maintenance checks on balloons with the skill and to the extent that his knowledge has permitted. In this regard, the Tribunal accepts the evidence of Mr Knight.
The Tribunal is mindful when considering the correct or preferable decision in this matter that air safety is a paramount consideration. The Tribunal has found that from time to time over a number of years the applicant has flown balloon VH-LPO without there being in existence the necessary certificate of airworthiness. The Tribunal has drawn the irresistible inference that the applicant must have known that that was the case. At best, the applicant should have known that there was no certificate of airworthiness in existence for his balloon, i.e. that he was reckless in allowing his balloon to fly without the certificate in question. It goes without saying that the holder of an authority to carry out maintenance on hot air balloons occupies a significant position of trust in the field of aviation. The respondent and the holder of such a position must ensure that the holder has all the requisite knowledge to safely and surely carry out the essential task of balloon maintenance. The safety of others depends upon it.
The Tribunal is satisfied on the whole of the evidence that:
(1)the applicant has contravened s20AA(3) and (5) of the Act by knowingly or recklessly operating his balloon VH-LPO without there being in place a certificate of airworthiness.
(2)the applicant does not have the necessary competence to be the holder of an authority to perform and certify for the completion of maintenance of hot air balloons.

It follows from finding (1) above that the Tribunal is satisfied that ground (a) in r269(1) of the Regulations has been made out namely

"(a) that the holder of the … authority has contravened a provision of the Act …"

This, in turn, brings into operation the exercise of the discretion in r269(1) as to whether or not to vary, suspend or cancel the authority held by the applicant.

After considering all that might be said and has been said in favour of the applicant, the Tribunal has reached the firm conclusion that the circumstances as found by the Tribunal clearly dictate in the interests of air safety that as and from 10 March 2000 the applicant's authority to perform and certify for the completion of maintenance of hot air balloons be cancelled pursuant to r269(1) of the Regulations.

Accordingly, the decision of the Tribunal is that the decision under review is affirmed.
I certify that the 86 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President B.H. Burns
Signed:         ............………….......................
  Barbara Armstrong (Associate)
Date/s of Hearing  8 September and 15 November 2000
Date of Decision  7 May 2001
Counsel for the Applicant        Mr C McKeown
Counsel for the Respondent    Mr W Arthur