Broadbent v Civil Aviation Safety Authority

[1995] FCA 739

CATCHWORDS

ADMINISTRATIVE LAW - Application for order of review - s 16 Administrative Decisions (Judicial Review) Act - whether an appropriate case for the Court to direct the Authority to determine a matter in a particular way

CIVIL AVIATION ORDERS - Table A, clause 4.1 of Appendix 1 to section 82.0 - "Remarks" column of Table does not prescribe any minimum qualifications for approval by the Authority of a person appointed as chief pilot of an operator

Administrative Decisions (Judicial Review) Act 1977 (Cth) - s 16
Civil Aviation Act 1988 (Cth) - s 27
Civil Aviation Orders
Civil Aviation Regulations
Federal Court Rules - O 29 r 2

Comptroller-General of Customs v ACI Pet Operations Pty. Ltd. (1994) 121 ALR 347 Followed

Michael Russell Mark Broadbent & Montchel Pty Ltd
v Civil Aviation Safety Authority
QG 118 of 1991

Drummond J
Melbourne (Heard in Brisbane)
15 September, 1995

IN THE FEDERAL COURT OF AUSTRALIA )    No. QG 118 of 1991
QUEENSLAND DISTRICT REGISTRY     )
GENERAL DIVISION                 )

BETWEEN:  MICHAEL RUSSELL MARK BROADBENT

First Applicant

AND:     MONTCHEL PTY. LTD.

Second Applicant

AND:CIVIL AVIATION SAFETY AUTHORITY

Respondent

MINUTES OF ORDERS

JUDGE MAKING ORDER:         Drummond J
DATE OF ORDER:              15 September, 1995
WHERE MADE:                 Melbourne (Heard in Brisbane)

THE COURT ORDERS THAT:

1. The parties shall have liberty to apply on seven days' notice to the other for directions for the further hearing of the application before Drummond J.

1. The costs of and incidental to the hearing of the separate issues shall be reserved.

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

IN THE FEDERAL COURT OF AUSTRALIA )    No. QG 118 of 1991
QUEENSLAND DISTRICT REGISTRY     )
GENERAL DIVISION                 )

BETWEEN:  MICHAEL RUSSELL MARK BROADBENT

First Applicant

AND:     MONTCHEL PTY. LTD.

Second Applicant

AND:CIVIL AVIATION SAFETY AUTHORITY

Respondent

Coram:    Drummond J
Date:     15 September, 1995
Place:    Melbourne (Heard in Brisbane)

REASONS FOR JUDGMENT

The present hearing arose out of an application to review the decision made on 28 March, 1991 by Mr. Mogg, a delegate of the Civil Aviation Authority ("CAA"), to refuse the application dated 4 March, 1991 by the first applicant, Dr. Broadbent, to be appointed chief pilot of the second applicant, Montchel Pty. Ltd. ("Montchel"), and to review a second decision made on 15 May, 1992 by the CAA's delegate, Mr. Bryant, refusing a similar application dated 9 February, 1992 made by Dr. Broadbent.  The Civil Aviation Safety Authority was substituted for the CAA by s. 11 the Civil Aviation Legislation Amendment Act 1995 (Cth).  The applicants sought orders setting aside both decisions and orders directing the CAA to approve the appointment of Dr. Broadbent as chief pilot of Montchel.  In the alternative, an order
remitting the matter to the CAA for further consideration was sought.

It was a condition of Montchel's Air Operator's Certificate, the authority under which it carried on its air charter business, that there should be at all times someone approved by the CAA as its chief pilot.  Dr. Broadbent held that position in relation to Montchel from March 1990 until October 1990, when the CAA cancelled its earlier approval of him as chief pilot.  In proceedings then commenced by the applicants to challenge that cancellation, the Administrative Appeals Tribunal ("the AAT") first stayed the cancellation decision and then, in February 1991, ruled that there was no statutory authority for the initial approval and thus of the later cancellation.  See Surf Air v Civil Aviation Authority, a decision of O'Connor J as President of the AAT on 28 February, 1991.  This statutory deficiency was made good by amendments to the Civil Aviation Act 1988 (Cth), to the Civil Aviation Regulations ("CAR") and to Civil Aviation Orders ("CAO").  Dr. Broadbent's applications for approval as chief pilot, the refusals of which have given rise to these proceedings, were made pursuant to the new statutory scheme.

Compared with the previous year, Montchel's air charter business declined very substantially in the 1989/1990 year, a decline that continued thereafter.  By July 1990, Dr. Broadbent was both Montchel's chief pilot and its only regular pilot.  However, his application of 4 March, 1991 indicates clearly enough that, while it was intended that he would perform those roles, Montchel would employ casual pilots, if work was offered which Dr. Broadbent could not himself perform.  The applicants contend that, for economic reasons, Montchel, a company controlled in effect by Dr. Broadbent, cannot employ any one other than Dr. Broadbent as its chief pilot.  A company associated with Montchel, Gold Coast Aviation Centre Pty. Ltd. ("GCAC"), which is also controlled by Dr. Broadbent, has, however, continued to operate an air charter business with a person other than Dr. Broadbent employed as chief pilot.  While GCAC's main business is running a flying school, it appears that all the limited air charter work available has been able to be performed by it.  Dr. Broadbent ultimately acknowledged that the primary reason for challenging the two decisions was his concern at the impact they would have upon his personal reputation, which I take to include his reputation as a pilot.

The applicants seek review of the first decision on the grounds that a breach of the rules of natural justice occurred in connection with the making of it, that it amounted to an improper exercise of the power conferred upon the CAA, that the decision involved an error of law, that there was no evidence to justify the making of the decision and, finally, that it was made in bad faith.  The particulars of the breaches of natural justice that are alleged to have occurred and of the bad faith allegedly infecting the decision include allegations of actual bias against Dr. Broadbent on the part of the CAA's delegate who made this decision; the particulars include allegations that the decision, in effect, reflected the malice and spite harboured by various officers of the CAA towards the applicants and a desire to deprive Montchel of its chief pilot and thereby to cause financial detriment to it.  While the grounds upon which the second decision was sought to be reviewed include allegations of breach of the rules of natural justice, improper exercise of power, error of law and absence of evidence to justify that particular decision, no allegations of bias or bad faith are made by the applicants in their attack on this decision.  However, it is clear that a number of the CAA's officers who have had contact with Dr. Broadbent now harbour a deep distrust of him.  It is equally clear that that attitude is fully reciprocated by Dr. Broadbent.

THE ISSUES FOR DETERMINATION

The litigation has had a tortuous history, with numerous interlocutory applications.  In the course of one interlocutory judgment, I ruled that, while the second decision displaced the first decision in a practical sense, the applicants were entitled to maintain their challenge to the first decision.  It was in order to avoid a protracted hearing that the parties, at my suggestion, decided to seek a preliminary hearing on a limited number of issues.  The applicants identified what they regarded as four key issues, viz., those raised in paragraphs 4B(a)(i) and 5(vi)(g) to (i) of the amended statement of claim, and on 11 May, 1993 they and the CAA agreed to them being determined as preliminary issues.  This agreement thus put to one side the questions of bias and bad faith raised by the applicants in relation to the first decision and raised for determination, as preliminary issues, the other matters, some of which were relevant to both decisions to refuse approval of Dr. Broadbent as Montchel's chief pilot.  The agreed preliminary issues are as follows:

(a)whether the making of the first decision was an improper exercise of the power conferred upon the CAA because, in making the decision, the CAA took into account what are alleged to have been irrelevant considerations, viz., what was referred to as the "Great Keppel Island incident of 12 September, 1990", the "ramp check at Coolangatta Airport on 13 September, 1990" and the "Great Keppel Island incident of 15 October, 1990".

(b)whether the second decision is reviewable on one or other of the grounds already referred to because the CAA's delegate, Mr. Bryant, determined, in the absence of evidence to support such a conclusion, that Dr. Broadbent's pursuit of his occupation as a specialist surgeon was incompatible with him holding an
appointment as chief pilot of Montchel in view of CAO 82.0 Appendix 1 para. 4.1.

(c)whether the second decision should be reviewed on one or other of these grounds because the CAA's delegate "[p]laced undue weight, in the absence of evidence either affirming or refuting such contention, upon the `Keppel Island incident'", i.e., the incident occurring on 12 September, 1990.

(d)whether the second decision should be reviewed because the delegate "[p]laced undue weight upon the `Kooralbyn incident' without having the benefit of a proper explanation in relation thereto by [Dr. Broadbent]".  This incident occurred on 23 November, 1991.

At the outset of the hearing, each party handed to me a document headed "Statement of Issues:  Trial of Separate Questions" setting out each party's view of what was to be determined at the hearing of the preliminary issues.  Both documents focused on the use made by the decision maker of the fact that Dr. Broadbent was in practice as a specialist surgeon; on the Great Keppel Island incident of 12 September, 1990; on the ramp check at Coolangatta Airport on 13 September, 1990; on the Great Keppel Island incident on 15 October, 1990 and on the Kooralbyn incident on 23 November, 1991.  The applicants' statement of issues, however, sought a determination in relation to both decisions whether any of the four operational incidents occurred; whether in respect of any of those incidents found to have occurred they were relevant for consideration by the CAA's decision makers; and whether, in respect of any of these incidents found to have occurred, undue weight was placed on them by the CAA's decision makers.  The CAA, in accordance with the agreement of the parties on 11 May, 1993, based its statement of issues on the relevant paragraphs of the amended statement of claim.

If there was any ground for thinking that what may have occurred on any of these four occasions touched upon Dr. Broadbent's fitness to be chief pilot of Montchel then, irrespective of the true factual position concerning each incident, it would obviously be relevant for the CAA's delegate to have regard to the matter and to form a view of just what had occurred and whether, given the view so formed, that showed possible unfitness on the part of Dr. Broadbent to be Montchel's chief pilot. But a central issue between the parties in relation to each of these four incidents was just what had in fact occurred. I ultimately decided that, in relation to the preliminary issues, I would determine, firstly, whether, by reference to the matters relied upon by the applicants, their claim to an entitlement to have the two decisions reviewed was established. I also decided, in view of the claim made by the applicants for an order by the Court under s. 16 the Administrative Decisions (Judicial Review) Act 1977 (Cth) ("the ADJR Act") directing the CAA to approve Dr. Broadbent as Montchel's chief pilot, that, if the applicants satisfied me of their entitlement, within the scope of the issues raised for determination as preliminary issues, to have the CAA's decisions reviewed, then I would decide whether I should go on and make findings on the factual disputes thrown up by the preliminary questions with a view to making an order under s. 16 the ADJR Act directing the CAA to grant the applicants' application or whether I should instead remit the matter to the CAA for reconsideration.  This approach had the agreement of counsel for both parties.  Voluminous affidavit evidence had previously been filed by both sides and extensive oral evidence was given, without objection.  Moreover, both parties' final submissions were, in large part, directed to persuading me to come to factual conclusions as to exactly what had occurred on each of these four occasions.

The applicants, in their statement of issues, identified the matter in issue with respect to Dr. Broadbent's medical practice as whether, in relation to the two decisions in question, Dr. Broadbent's pursuit of his medical practice was relevant for consideration by the CAA's decision makers and whether it prevented him from fulfilling the responsibilities of chief pilot of Montchel.  The CAA identified this matter as relating only to the second decision and as involving the determination, as a separate question, whether the CAA had concluded, in the absence of evidence to support such a contention, that Dr. Broadbent's pursuit of his medical practice was incompatible with the requirements of Appendix 1 to CAO 82.0.  Although the applicants did not in their statement of claim challenge the reliance on this consideration by the CAA's delegate who made the first decision, it is I think appropriate to amend the pleading to the extent necessary to raise this as an issue for separate determination in respect of the first decision also.

Although I directed on 11 May, 1993 that the four issues I have referred to were to be determined as separate issues in reliance on O. 29, r. 2 the Federal Court Rules, the applicants contended in their closing submissions that I should not make any formal orders.  They acknowledged that I should make findings of fact in relation to the various issues; but they submitted that it would be inappropriate for me to go on and make formal orders at this stage of the litigation, although they expressed the hope that my factual findings might enable the parties to resolve the entire litigation.  The CAA's position was that if I made findings of fact on what had taken place on the four occasions in question that were adverse to the applicants, then I should dispose of the entire proceeding:  in such a situation it would serve no purpose, so the CAA submitted, to investigate in another phase of the litigation whether the CAA's decision making processes were flawed, since I would necessarily have concluded that Dr. Broadbent was not fit to be Montchel's chief pilot.

The CAA's decisions of 28 March, 1991 and 15 May, 1992

On 4 March, 1991 Dr. Broadbent applied to be approved as chief pilot of Montchel, which traded as "Surf Air".  The CAA's delegate, Mr. Mogg, made the following decision:

"Your application is rejected on the grounds that you fail to satisfy a requirement of Civil Aviation Orders Section 82.0, Sub Section 5, Sub Paragraph 5.1(a) in that you have not maintained a satisfactory record in the conduct or management of flying operations.

...

Reports of incidents which occurred when you were ostensibly Chief Pilot of Surf Air and available to me are:

I.VH-JCI at Great Keppel Island on 12 September 1990.  Your Pilot, Mr L McNiell (sic), took off overloaded from Coolangatta, showing that either he was not properly trained, or he did not know of the alternatives available to him.  The aircraft took off from Coolangatta in an overloaded situation, by approximately 120 kg, in contravention of Civil Aviation Regulation 233(1) and your Company Operations Manual, Section A3, Subsection 3.8.

II.VH-ARJ at Coolangatta on 13 September 1990.  Your pilot, Mr P W McGrew, was loading the aircraft in preparation for take off.  It was subjected to a ramp check and, by the pilot's own calculation was approximately 320 kg overweight, in contravention of Civil Aviation Regulation 233(1) and your Company Operations Manual, Section A3, Subsection 3.8.

III.VH-LAF at Great Keppel Island on 15 October 1990.  Your pilot, Mr Aubort, admitted to refuelling from a drum without carrying out the necessary fuel contamination checks in accordance with
Civil Aviation Order Section 20.9 Paragraph 3.3.

Apart from the above, I am not convinced that you would be able to devote your attention full time to the duties of Chief Pilot.  I have considered the submissions you made on this point in your letter of 12 March 1991.  However, you have a full time medical practice and active interests in two other aviation companies, gold (sic) Coast Aviation Centre and Aircraft Engineers Associates.  Your submissions were insufficient to convince me that you could reconcile these other interests with the responsibilities of Chief Pilot of Surf Air.

From this documentary evidence now available to me and these reports of incidents, I have concluded that you are not capable of:

1.Controlling all flight crew training and operational matters affecting the safety of the flying operations of Surf Air.

2.Ensuring that Surf Air's air operations were being conducted in compliance with the Regulations and Civil Aviation Orders.

3.Ensuring compliance with the loading procedures specified for the aircraft.

It is on these grounds that, with regret, I cannot approve your application."

At the suggestion of the CAA, following institution of the original application for review of the first decision, Dr. Broadbent made his second application for approval as Montchel's chief pilot.  The official delegated to make the second decision, Mr. Bryant, arranged for another officer of the CAA, Mr. Collins, to report on Dr. Broadbent's second application.  This was done in view of the nature of the allegations made against a range of the CAA's officers by the applicants in their challenge to the first decision.  Mr. Collins had no prior involvement with the applicants.  However, his report recommended that the approval sought by
Dr. Broadbent be given to him.  It was not accepted by Mr. Bryant.  He rejected the second application in his decision of 15 May, 1992, which was in the following terms:

"Your technical qualifications for the position are more than adequate for the anticipated scale of operations, however, it is your demonstrated inability to:

a.effectively control all operational matters affecting the safety of flying operations; and

b.your demonstrated unwillingness to comply with the current regulations

which leave me with no alternative but to reject your latest application.  My reasons for this decision are as follows:

a.CAO 82.0, Appendix 1, para 2.1 requires the Chief Pilot to have control of flight crew training and operational matters affecting the safety of flying operations.  I consider that this function requires the Chief Pilot to be supervising operations on a full time basis.  The use of the word "control" means there should be active and constant supervision of operations to prevent the occurance (sic) of acts or omissions which could result in a breach of air safety.  Your pursuit of another full time occupation is incompatible with this requirement.

b.VH-JCI at Great Keppel Island on 12 September 1990.  Your pilot L McNeil took-off from Coolangatta in an overloaded condition by approximately 120 Kg in contravention of Civil Aviation Regulation (CAR) 235(4) and your Company Operations Manual Section A3, sub-section 3.8.  There is sufficient evidence available to conclude Mr McNeil departed Coolangatta in an overloaded aircraft because of pressure from you, the Chief Pilot, to operate overweight.  Moreover, the load and passenger manifest supplied by the Company had the aircraft basic weight already entered on the sheet prior to being given to the pilot.  This weight was 39 Kg lower than the weight recorded in the aircraft's Flight Manual.  Besides contravening the CARs, this incident clearly indicates to me your lack of control of

operational matters affecting the safety of flying operations of your Company.

c.VH-JIS at Kooralbyn on 23 November 1991.  The aircraft, which was on a dual navigation training sortie and under your command as the flight instructor, made an unscheduled landing at Kooralbyn to refuel.  The reason for this unscheduled landing was poor fuel planning for which you were responsible.  At Kooralbyn, you knowingly refuelled the aircraft with MOGAS contrary to CAR 138(4).  This blatant breach clearly indicates to me your unwillingness to comply with the regulations.

...

Accordingly, I have decided grounds still do exist for me to conclude you are not a suitable person to hold this Authority's approval as Chief Pilot of Surf-Air."

It is to be noted that Mr. Mogg, in making the first decision, relied on the incidents of 12 and 13 September, 1990 and 15 October, 1990 as indicating only a deficiency in the way Dr. Broadbent performed his supervisory duties as chief pilot.  There are, I think, difficulties in accepting the validity of Mr. Mogg's approach:  he acknowledged that he had no evidence to suggest that Dr. Broadbent had been aware of Mr. McNeil's decision to deliberately fly overweight on 12 September, 1990 or of what he believed to be Mr. McGrew's intention on 13 September, 1990, until Captain Fooks intervened, to fly overweight.  Mr. Mogg also acknowledged that he had no evidence that Dr. Broadbent ought to have been aware of the inadequate refuelling facility on Great Keppel Island and that he was aware of the decision of a senior officer of the CAA, Mr. Croft, on 18 October, 1990 not to take any action in relation to Mr. Aubort's misconduct on 15 October, 1990.  When cross-examined, Mr. Mogg adopted the position that, since three pilots had failed to comply with regulations, Dr. Broadbent was at fault and unfit to be a chief pilot because the regulations made him responsible for ensuring that such things did not occur.  Mr. Mogg acknowledged that, to meet the requirements of the regulations, a chief pilot would have to be omniscient, but that it was not for him to say how the responsibilities of the position were to be discharged.  Typical of the explanations he gave for considering these incidents provided grounds for disqualifying Dr. Broadbent from being chief pilot was what he had to say about the incident of 12 September, 1990:

"In the event that there was nothing that occurred before this incident to suggest that McNeil would conduct the operation unlawfully, what on earth should Dr Broadbent have done?---I can't answer that question for you.

Well, why then do you say, as an officer of the CAA, that this event provides a ground for withdrawing Dr Broadbent's approval, or not approving his application?---It shows to me that Dr Broadbent was not managing the operation and ensuring that overloading didn't occur.

That requires him to be omniscient, does not it?

...

---It is not my position to tell Dr Broadbent how to do this.  I'm sorry.

But, Mr Mogg, is not - - -?---It's his responsibility to do it."

Mr. Bryant, who dealt with the second application which Dr. Broadbent made at the suggestion of the respondent, abandoned this approach.  It is easier to accept his reasons
for reaching the second decision than it is to accept those of Mr. Mogg:  Mr. Bryant did not treat the McGrew or Aubort incidents as being of any significance to the question of Dr. Broadbent's fitness to be Montchel's chief pilot.  He saw the McNeil incident as significant not because it involved a pilot flying overweight, but because he believed it evidenced a practice of Dr. Broadbent's of pressuring pilots to operate overweight, a much more significant matter, so far as Dr. Broadbent's suitability to be chief pilot is concerned.  Mr. Bryant, of course, also relied on the Kooralbyn incident which occurred after Mr. Mogg gave the first decision.

The relevance of Dr. Broadbent's medical practice

The parties accepted that Part 82 of the CAO imposed an obligation on Montchel, as the holder of an Air Operator's Certificate, to appoint an approved chief pilot.  It is, however, appropriate to set out the regulatory framework for this obligation.

Section 27(1) the Civil Aviation Act 1988 (Cth) ("the Act") provides: "The Authority may issue Air Operators' Certificates for the purposes of its functions." As an air charterer, Montchel was required by s. 27(2) and (9) of the Act and reg. 206(1)(b) of the CAR to hold an Air Operator's Certificate. By s. 27(3), it is provided that: "The regulations may specify conditions to which Certificates
(including Certificates that have already been issued) are to be subject." By s. 27(3A), such a Certificate:

"... has effect subject to its conditions, being: 

(a)the conditions specified in the regulations; and

(b)any other condition specified by the [CAA] in the Certificate or in a written notice given to the holder."

Montchel's Air Operator's Certificate dated 21 February, 1991 is expressed to be issued subject to certain conditions which relevantly include only the following:

"(2)The certificate holder and the aircraft used in these charter operations shall comply with the provisions of the Civil Aviation Act 1988 and the Civil Aviation Regulations."

Section 98(4A) of the Act empowers the CAA to issue CAO with respect to, inter alia, any matter in relation to which regulations may be made for the purposes of s. 27. Section 82.1 of Part 82 of the CAO includes the following:

"1.2For the purposes of section 27 of the Act, each certificate authorising charter operations and aerial work operations is subject to the condition that the obligations set out in this section are complied with.

1.3The conditions and obligations set out in this section are in addition to the conditions set out in section 82.0.

...

2.2Each operator must establish a position of Chief Pilot and appoint a person to that position.

2.3The Authority may, having regard to the size of the organisation or the nature and scope of services of an operator:

(a)require the operator to provide additional supervisory positions; or

(b)approve the allocation of the duties and responsibilities associated with more than one position to one person."

Section 82.0 of Part 82 of the CAO contains the following provisions:

"5.1Where a Chief Pilot is required by this Part to be appointed by an operator, it is a condition of the operator's certificate that the operator will comply with the requirements of Appendix 1 of this section."

Appendix 1 contains the following:

"1.1A person must not be appointed as or act as a Chief Pilot unless the person's appointment has been approved in writing by the Authority after application in writing by the operator.

...

2 - RESPONSIBILITIES OF CHIEF PILOT

2.1The Chief Pilot for an operator is to have control of all flight crew training and operational matters affecting the safety of the flying operations of the operator.

2.2The responsibilities of a Chief Pilot must, unless the Authority otherwise specifies in writing, include the following responsibilities:

(a)ensuring that the operator's air operations are conducted in compliance with the Act, the Regulations and the Civil Aviation Orders;

(b)arranging flight crew rosters;

...

(e)ensuring compliance with loading procedures specified for each aircraft type used by the operator and proper compilation of loading documents, including passenger and cargo manifests;

(f)monitoring operational standards, maintaining training records and supervising the training and checking of flight crew of the operator;

...

(j)allocating appropriate aircraft.

3 - DELEGATION BY CHIEF PILOT

3.1A Chief Pilot, in exercising any responsibility, may delegate duties to other members of the operator's staff, but may not delegate training and checking duties without the written approval of the Authority.

4 - QUALIFICATIONS OF CHIEF PILOT

4.1A Chief Pilot must, unless the Authority otherwise approves in writing, hold at least the minimum qualifications set out in Table A.

...

5 - APPROVAL OF CHIEF PILOT BY THE AUTHORITY

5.1A person will not be approved as a Chief Pilot unless:

(a)in the opinion of the Authority, he or she has maintained a satisfactory record in the conduct or management of flying operations; and

(b)before being approved as a Chief Pilot, the person has:  [passed certain assessments and examinations].

...

5.3The Authority must give written notice of an approval, or rejection of an approval, for a person to be appointed as, or to act as, a Chief Pilot to the operator and to the person and must, where a proposed appointment is rejected, include in the notice the reasons for the rejection.

5.4An approval may be given subject to conditions specified in the instrument of approval."

So far as is relevant to this case, Table A referred to in cl. 4.1 of Appendix 1 to s. 82.0 of the CAO contains the following:

Operator's fleet Type	Number	Minimum total flight time on relevant kind of aircraft	Experience in commercial operations	Remarks
Multi-engine	More than 1 aircraft	1000 hours including 200 hours in command of multi-engined aircraft	12 months	The Chief Pilot must be employed full time by the operator and may not be Chief Pilot with another operator

The applicants submitted that, as a matter of construction, there is nothing in s. 82.0 of the CAO which requires Montchel to have as its chief pilot someone employed by it on a full time basis.  I agree.  Table A derives its binding force from cl. 4.1 of s. 82.0 of the CAO.  All cl. 4.1 does is prescribe, by reference to Table A, "the minimum qualifications" which a pilot must possess before he will be assured of satisfying this particular condition of obtaining the CAA's approval of his appointment as an operator's chief pilot.  The statement in the "Remarks" column in Table A: 
"The Chief Pilot must be employed full time by the operator ..." cannot, I think, be regarded as one of these "minimum qualifications".  Clause 1.1 of Appendix 1 to s. 82.0 prohibits a person appointed by an operator to be its chief pilot from acting as such until his appointment has been approved by the CAA; to be so approved he must show to the CAA that he already has (at least) the minimum qualifications.  This provision appears to be concerned with something already achieved by the applicant when he seeks the approval.  In its context here, the word "qualifications" has the meaning which it bears in ordinary English speech, viz., "a quality, accomplishment, etc., which fits [a person] for some function, office, etc." (The Concise Macquarie Dictionary); "[a] necessary condition, imposed by law or custom, which must be fulfilled or complied with before a certain right can be acquired or exercised, an office held, or the like" (The Compact Oxford English Dictionary).  The wording in the "Remarks" column suggests that it is dealing with two separate continuing requirements with which a person must comply in the future, after he has been approved as a chief pilot.  That the statement appears in a column headed "Remarks", in contrast to the other columns in the Table which have headings apt to identify qualifications, in the sense of accomplishments or attributes which a person seeking approval as a chief pilot must possess, also suggests that it is not the function of this column in the Table to prescribe qualifications within the meaning of that term in the Appendix.  The stipulations in the "Remarks" column, not being the prescription of "qualifications" within cl. 4.1, have, in my opinion, no binding force in law.

That a person possesses these "minimum qualifications" does not mean that he necessarily will, in any particular case, obtain the CAA's approval of his appointment as chief pilot.  In deciding whether to approve a person as a chief pilot of a particular air operator, the CAA must have regard to the minimum qualifications requirement contained in cl. 4.1 of Appendix 1 to s. 82.0 and to the requirements set out in cl. 5.1 of Appendix 1 to s. 82.0 that the person have a satisfactory flying record and that he has passed the requisite assessments and examinations.  But the CAA could not limit its assessment of the suitability of a particular person to be a chief pilot to these matters:  the responsibilities of a chief pilot set out in cl. 2 of Appendix 1 to s. 82.0 are such as to show that, before approving a person as such in a particular case, the CAA would have to consider whether the applicant needed superior qualifications to the minimum ones in Table A.  Before the CAA could properly approve such an appointment, it would in my opinion also therefore have to have regard to the nature and size of the operator's fleet, to the scope and intensity of the operations carried on, or proposed to be carried on, by the particular air operator; the CAA would also be fully entitled (if not required) to consider whether to demand, as a condition of approval, that the chief pilot should be employed full time or part time.  If, for example, a particular operator had a fleet of only two single engined aircraft which it operated only at weekends, it is unlikely to be a proper exercise of its discretion under cl. 1.1 of Appendix 1 for the CAA to insist that such an operator employ a chief pilot full time.  Yet that is suggested to be always necessary, in such a case, by Table A.  By cl. 5.4 of Appendix 1, the CAA is empowered to approve a person to be chief pilot subject to conditions.  There would be no difficulty, in the example I have mentioned, approving the appointment of someone as chief pilot, subject to a condition that that person would be on duty as chief pilot at all times when the operator held itself out as prepared to carry on operations or subject to some other suitable condition.  In the absence of a legally effective prescription to the effect reflected in the "Remarks" column in Table A, in deciding whether or not to approve a particular person as chief pilot of a particular operator, the CAA would not be justified, in my opinion, in rigidly enforcing what appears to be the policy reflected in the "Remarks" column in Table A, without considering the appropriateness of such matters in each particular case.  But since it will generally be relevant for the CAA to consider whether, as a condition of approval as chief pilot, it should require the applicant to be employed full time, in view of the duties of a chief pilot and the demands on a chief pilot in the performance of those duties that are related to the size of the operation in which he works, the "Remarks" column can be accepted to be that, i.e., a non-binding statement of the policy of the CAA that it will apply in approving persons as chief pilot.  If the CAA could rely on the rules of thumb reflected in the "Remarks" column in Table A in exercising its power to approve persons as chief pilots of air operators, that might be thought to impose a less onerous administrative burden on it than I think it bears under the existing regulatory framework.  But that consideration provides no justification for elevating what appears to be a mere policy to a legally binding requirement.

As I read the reasons given by Mr. Mogg for rejecting the applicants' first application, one of the grounds upon which he rejected it was his mistaken view, based on his reading of Table A in Appendix 1 to s. 82.0, that a person could be approved as chief pilot of Montchel only if he were employed full time.  This reading of his decision is confirmed by what Mr. Mogg had to say at the hearing.  Mr. Bryant, in his decision rejecting the second application for Dr. Broadbent's approval as chief pilot, appears on the face of the decision to have dealt with his being in full time medical practice rather differently from the way Mr. Mogg dealt with that consideration.  But despite the wording of his decision, Mr. Bryant acknowledged in oral evidence that he too took the view that Dr. Broadbent was necessarily disqualified by cl. 4.1 of Appendix 1 to s. 82.0 from appointment as chief pilot because he would not be employed full time by Montchel.  It follows that both decisions are for this reason reviewable for error of law.

So far as the evidence goes, it suggests that the CAA has under the relevant CAO approved the appointment of chief pilots for small operators who, on any view, could not be said to have been employed full time by those operators.  At the time he gave evidence, Mr. Pedashenko was the chief pilot for an air charter operator in the A.C.T. with a fleet of four aircraft and a number of casual pilots; but chief pilot of this organisation was only one of three jobs he then had.  No attempt was made to show that the CAA was unaware of the limited extent of his employment as chief pilot.  Mr. Jory's evidence was that from late 1990 to early 1992 he was employed as chief pilot of Paradise Helicopters, an organisation with a number of aircraft, on a part time basis, to the knowledge of the CAA.  A co-principal of Paradise Helicopters, Mrs. Lanham, said that during the years she had been involved in the aviation industry, it was a quite common practice for small aviation companies to employ chief pilots on a part time basis.  Mr. Mogg, the official who made the first decision complained of, was aware of a two aircraft operation with a part time chief pilot.  I infer from all this evidence that, at about the time we are here concerned with, the CAA from time to time approved persons as chief pilots of small operations, even though it was aware they were employed only on part time bases, in circumstances in which such approvals were not consistent with rigid adherence to the policy recorded in the "Remarks" column of Table A.  For the reasons I have already given, the CAA in doing that, did not necessarily make any error in the exercise of its discretion.  I am therefore inclined to think that the evidence of Mr. Mogg and Mr. Bryant to the effect that they regarded Table A as laying down an inflexible requirement that a chief pilot in other than a single aircraft operation be employed full time may show a willingness to find an excuse for rejecting Dr. Broadbent's application.  Mr. Collins and Captain Taylor in their reports to Mr. Bryant did not consider Dr. Broadbent's not being in full time employment any reason to refuse the approval he sought.  The CAA's investigator, Mr. Enders, went out of his way to obtain an opinion that contradicted Mr. Collins' view of the significance of Dr. Broadbent being in full time medical practice.  Mr. Bryant found Mr. Enders' memorandum helpful in deciding to reject the application on this particular basis.  Mr. Enders' zeal in taking unsolicited action to bring to Mr. Bryant's attention his dissatisfaction with the report by Mr. Collins that favoured Dr. Broadbent reinforces the impression I have that he saw his role as being to do what he could to prevent Dr. Broadbent obtaining the approval he sought.  It is, however, unnecessary to pursue further the question of Mr. Mogg and Mr. Bryant's motivations on the limited evidence touching on this matter that is available to me at this stage of the litigation.

Even if the only reason the CAA had rejected Dr. Broadbent's applications for approval as chief pilot of Montchel was the erroneous belief that his not being available to work as chief pilot on a full time basis necessarily disqualified him from being approved as such, I would not be prepared to direct the CAA, pursuant to s. 16 the ADJR Act, to grant the desired approval. The power the Court has under s. 16 to direct the decision maker to determine the matter in a particular way can be exercised only in special circumstances. When it can be seen, once a reviewable error has been identified, that there is no residual judgment left to be exercised by the decision maker, it will be appropriate for the Court to exercise this special jurisdiction: see Comptroller-General of Customs v ACI Pet Operations Pty. Ltd. (1994) 121 A.L.R. 347. In all other circumstances, it will generally be appropriate to send the matter back to the decision maker for re-determination. It is not the case here that, even if the only reason the CAA had refused to approve Dr. Broadbent was its erroneous belief that he had to be employed full time as chief pilot, there would be nothing remaining for the CAA to determine before a decision could be made to approve Dr. Broadbent as chief pilot.

Nor am I prepared to make any finding on the evidence before me that the demands of his medical practice are not such as to justify the CAA withholding the unconditional approval claimed by the applicants.

Dr. Broadbent said, and there was evidence from other witnesses to support him, that, because of his contactability at all times, there was no reason why he should not be approved as chief pilot unconditionally, notwithstanding the demands of his medical practice.  Dr. Broadbent said that he regularly attended at the airfield on Saturdays and Sundays and Tuesday afternoons.  His evidence was supported in this regard by other witnesses, including Mr. Hiller, who gave affidavits to both sides, and Mr. McNeil, the CAA's witness, who was generally adverse to the applicants.  I accept that Dr. Broadbent would be readily contactable most of the time when he was not present at the airport.  His evidence also was that full time attendance by the chief pilot of a small operation at the operator's base office is unnecessary.  This is supported by the evidence of Mr. Pedashenko and Mr. Roseberg (the latter being chief pilot of Montchel for 18 months up to May 1989).  Mrs. Lanham's evidence was also to the same effect.  Captain Taylor, a senior flying operations inspector with the CAA, in the report dated 28 April, 1992 he gave to Mr. Bryant shortly prior to the latter making the second decision, acknowledged that it was accepted that a chief pilot is not always physically available and that contactability when he was not present at the airfield was what was important.

Dr. Broadbent recognised that, if business picked up, he would not be able to discharge the duties of chief pilot.  However, there is force in the CAA's submission that, given Dr. Broadbent's insistence in evidence as to his capacity to perform the duties of chief pilot on an unrestricted basis, at least while Montchel's business was at a relatively low level, what he wanted was to be allowed to act as chief pilot on the understanding that, at his discretion, he would determine when business was such that he was no longer able to carry out his responsibilities. Dr. Broadbent said:

"If I were to be appointed Chief Pilot now then Montchel would resume its charter activities with only one aircraft with the view of developing the business and improving it over a number of years to hopefully regain the extent of work which it could attract in 1989.  If the business is regained to the same extent as 1989 then I will of course retire as chief pilot when I believe that I am unable to perform my duties to the best of my ability due to such increase in business."

He was asked this in cross-examination:

"So you and your wife [as co-director of the second applicant] will decide when you are too busy to discharge the role of chief pilot.  Is that what you propose?---There may be others involved in the decision also, and I invite the Civil Aviation Authority, if they wish to get involved, to come and discuss the matter with me.

But in the end, you propose that you would have the discretion as to when and if you should resign?---I would think that for anyone to interfere in my company's activities would be improper.  I don't think they could direct me, anybody, but I'm certainly open to any discussion with the authorities.  I repeat that I always have been.  I have sought to have discussions with them, many matters, at all levels, for many years, and invited them at any time, day or night, and they haven't responded."

Something of the flavour of Dr. Broadbent's confidence in his capacity to discharge all the duties of chief pilot, notwithstanding the demands of his medical practice, which he said occupied his time from about 8.00 a.m. to 5.00 p.m. four and a half days a week, can be gathered from the following evidence:

"HIS HONOUR:  Well, I mean, is this the position:  that the only time you would be unavailable to respond to a call to do something as chief pilot would be when you, yourself, had embarked upon an operation and was still working on a patient?---Yes, and under those circumstances, I could take a verbal message and possibly talk to somebody on a speaker phone.

Yes?---I would just have to pause in what I was doing and necessarily listen and take and give directions.

MR BOUGHEN:  If one assumes that in fact the particular procedure you are involved in at the time is such that you cannot immediately respond, in your experience, what is the sort of time that would lapse before you could respond to an inquiry?---If it was that urgent, probably less than five minutes.

All right?---Assuming that someone is bleeding to death in front of my eyes, it would probably take me five minutes to stop it; put a pack in there.  I could go to a telephone, answer the telephone if need be; might have to physically pick up a telephone and deal with the problem.  I could regown and reglove and continue with my operation.  It would be, at the most, five minutes."

Dr. Broadbent's insistence on unconditional approval as chief pilot, with him retaining that position until he decided business had picked up to the stage where he could not properly discharge the duties, leaves me firmly of the view that, even though I think the decision making process miscarried in this regard, I would not make any order under s. 16 the ADJR Act directing the CAA to approve Dr. Broadbent as chief pilot.  It may be that, if there were no other reasons to refuse approval than these sort of considerations, a conditional approval could be appropriate.  But it would be
for the CAA to determine appropriate conditions, not this Court.

There was some discussion in closing argument about whether Dr. Broadbent should be approved as Montchel's chief pilot subject to a condition that reflected his limited availability to attend at the airfield, if I were to come to the conclusion that the demands of his medical practice did conflict with his ability to discharge the duties of chief pilot.  Clause 5.4 of Appendix 1 to s. 82.0 empowers the CAA to give such an approval subject to conditions.  Counsel for the applicants submitted that, given what Dr. Broadbent disclosed as to the nature of Montchel's intended operations in his application for approval as chief pilot, it would have been open to the CAA to have conditionally approved him as such.  Although some evidence was given which would be relevant to the question whether Dr. Broadbent should be approved chief pilot of Montchel on a limited basis, the applicants never sought approval of Dr. Broadbent as Montchel's chief pilot subject to any conditions, e.g., a condition that Montchel would undertake operations only at the times he could attend at the airfield, until that was raised in closing argument.  The suggestion was also inconsistent with the burden of the applicants' case, that Dr. Broadbent was entitled to be approved as chief pilot on an unconditional basis.  Dr. Broadbent acknowledged that his concern at not having a chief pilot's approval was "first of all" because of the damage to his personal reputation.  Later, he mentioned that Montchel had acquired a helicopter and he himself had qualified as a commercial helicopter pilot and that GCAC did not have an Air Operator's Certificate authorising it to operate commercial helicopter flights, whereas Montchel did have the necessary authorisation under its certificate.  But that was an after thought and he did not suggest that there was any substantial helicopter charter work available.  Notwithstanding what he had to say about this, I think that it is concern for his personal reputation that is at the root of this litigation and explains why he never sought conditional approval.  Moreover, the issue of whether a conditional approval was appropriate was not fully litigated before me, as counsel for the applicants conceded.  In particular, no consideration was given to the kind of conditions to which it might be practicable to subject an approval by the CAA of Dr. Broadbent as Montchel's chief pilot.  In these circumstances, it would be inappropriate for me to give any direction, if the applicants were otherwise entitled to review of the decisions, that the CAA issue a conditional approval.  If Dr. Broadbent wishes to apply for such an approval, he is, of course, free to do so.  Attention can then be given by the CAA to relevant considerations and the conditions that should be imposed assuming, of course, the CAA were prepared to approve Dr. Broadbent as chief pilot on a conditional basis.

Both decisions challenged are reviewable because of the error of law on the part of each of Mr. Mogg and Mr. Bryant concerning the relevance of the fact that Dr. Broadbent would not be employed by Montchel as its chief pilot on a full time basis.  That conclusion is sufficient to require me, in accordance with the procedure I indicated I would adopt at the outset of the hearing, to consider whether to make findings with respect to what in fact occurred in each of the four incidents referred to in the decisions.  It seems to me little useful purpose will be served in the circumstances of this case by my determining whether, by reason of the way the decision makers dealt with the evidence concerning the four operational incidents, the decision making process miscarried in relation to one or more of those matters also.  I am in possession of very much more evidence concerning each of these incidents than was before Mr. Mogg and Mr. Bryant.  The question just what occurred on each occasion was very extensively litigated before me.  I will therefore proceed directly to make findings in relation to each of these four incidents as to what I consider in fact occurred, without determining whether there are additional grounds upon which the decisions are reviewable under the ADJR Act.  I will leave it to the parties to decide on the future course of this litigation in the light of my conclusion that both decisions are reviewable for the reason given and in the light of my factual findings.

The Kooralbyn incident on 29 November, 1991

Dr. Broadbent is a well qualified and very experienced pilot.  Mr. Bryant, in the second decision, observed that his technical qualifications for the position of chief pilot of Montchel were more than adequate for the anticipated scale of operations.  But Mr. Bryant regarded the Kooralbyn incident as evidencing Dr. Broadbent's inability to effectively control all operational matters affecting the safety of flying operations and his unwillingness to comply with current regulations for two reasons:  firstly, he considered the unscheduled landing at Kooralbyn of the training flight on which Dr. Broadbent was the instructor was due to poor fuel planning for which Dr. Broadbent was responsible and, secondly, he considered that Dr. Broadbent had deliberately refuelled the aircraft with motor gasoline ("MOGAS") and that this was a blatant breach of reg. 138(4) of the CAR.

The flight in question was a navigation exercise undertaken to prepare a student pilot, Mr. Keane, for his solo navigation flight.  The operator was GCAC.  Mr. Keane was "in command under instruction", so Dr. Broadbent would only intervene in an emergency.  The original flight plan was to fly from Coolangatta to Tangalooma, to Redcliffe, to Archerfield and back to Coolangatta.  While the plane was on the ground at Archerfield, Dr. Broadbent directed Mr. Keane to undertake a long diversion to Millmerran, before returning to Coolangatta, as what he described as an exercise in fuel planning for Mr. Keane.  The plane was not refuelled at Archerfield, but each made mental calculations to satisfy themselves they had sufficient fuel to undertake the diversion.  Between Archerfield and Kooralbyn there were two refuelling points, but the flight passed over both.  In the vicinity of Kooralbyn, although Mr. Keane considered he had sufficient fuel to get back to Coolangatta, Dr. Broadbent said he got a little apprehensive, apparently because he realised that by the time they got back to Coolangatta they would have started to use up the emergency fuel reserve sufficient for 45 minutes flying time.  Mr. Keane said the plan was always to keep the 45 minute reserve intact and that they landed and refuelled at Kooralbyn only to ensure this.  Dr. Broadbent says that when Mr. Keane calculated he had sufficient fuel left, he required Mr. Keane to execute a forced landing at Kooralbyn to ensure that there would be an opportunity to take on more fuel.

Mr. Bryant said that proper fuel planning would have dictated a landing at one of the earlier refuelling points.  Mr. Hiller, the chief pilot of GCAC, was also critical of Dr. Broadbent's fuel planning:  he said it should have been apparent, if a proper calculation was made at Archerfield, that there would be insufficient fuel to complete the flight with the diversion, without starting to use up the fixed reserve.  It seems clear, notwithstanding Dr. Broadbent's assertions in oral evidence that the fixed reserve could be used in a simulated emergency, that his belief at the time was that it was to be kept for a genuine emergency and it was his concern that the flight would not be able to get back to Coolangatta without trespassing into the fuel reserve that caused him to make the unscheduled landing at Kooralbyn.  He said as much in an Air Safety Incident Report he later filed with GCAC.  The inviolability of the fixed reserve was also the view of Mr. Hiller and Mr. Bryant.  However, it appears from Mr. Hiller's evidence that the flight could have been completed with the use of only a relatively small amount of the reserve fuel.  While there is a basis for saying that the episode displays a degree of poor fuel planning on the part of Dr. Broadbent which necessitated the unscheduled landing at Kooralbyn, I do not regard it as a significant default on his part.

Of much more significance is what happened at Kooralbyn.  At a time when the aeroplane had a little less than 45 litres of aviation gasoline ("AVGAS") in its tanks, Dr. Broadbent took on board 20 litres of MOGAS.  Dr. Broadbent says that the fuel he purchased at Kooralbyn was drawn from a drum labelled "AVGAS" by the person in charge there, Mr. Reed, into a 20 litre can which Dr. Broadbent then poured into the aircraft's tanks.  He said it was only after a large part of the fuel had been poured into the tanks that he realised from its distinctive colour that it was MOGAS and not AVGAS.  He said that he considered it would be safe to conclude the flight with the mixed fuel so he completed the journey, after the usual pre-flight check before take-off from Kooralbyn.

In his first affidavit, he said that, upon arrival at Coolangatta airport he undertook the usual debriefing and chores and that the aircraft was automatically refuelled by others.  He added:  "When I came to realise that the aeroplane had been completely refuelled, I decided that it was not worth draining the aircraft completely on the basis that there was only 30 litres (approximately) of the combined fuel mixture which would be now further diluted with at least 80 more litres of AVGAS".  He said in oral evidence that he did not deliberately fail to report the presence of MOGAS in the tanks on his return to Coolangatta but that it was an oversight.  He said that his use of MOGAS was brought to the attention of GCAC's chief flying instructor, Mr. Hiller, by another pilot who noted a discolouration in the fuel.  The inference from all this is that Dr. Broadbent intended to drain the relatively small quantity of mixed MOGAS/AVGAS from the aircraft's tanks on his return to Coolangatta but, once he found the plane had been refuelled there with AVGAS, he decided it was not worth doing that and that he forgot to report that he had put some MOGAS in the plane's tanks.

I cannot accept Dr. Broadbent's evidence that he only realised he was refuelling with MOGAS when he had almost completed that operation.  I also consider that, but for another pilot detecting contamination in the fuel and reporting it to Mr. Hiller, Dr. Broadbent would have made no mention of having refuelled with MOGAS.  I think he made use of MOGAS because he believed that the risks of using it were very low and he wanted to avoid the inconvenience and substantial delay that would be involved in grounding the plane until AVGAS could be brought to Kooralbyn, when he knew he had a substantial quantity of AVGAS left on board.

Mr. Hiller says that, as a result of information he obtained on 25 November, 1991, he arranged to speak to Dr. Broadbent on 26 November, 1991 about the latter's refuelling with MOGAS at Kooralbyn.  Dr. Broadbent told him that he thought he was purchasing AVGAS, but that it was not until he was pouring the fuel into the tanks of the aircraft that he discovered it was MOGAS.  There was a heated discussion between them.  He told Mr. Hiller that he continued the flight rather than drain the tanks and arrange for it to be refuelled with AVGAS because the engine had been approved for MOGAS overseas and he considered it to be all right to use MOGAS.  Mr. Hiller directed him to file an Air Safety Incident Report and, as Dr. Broadbent acknowledged, Mr. Hiller effectively grounded him until he was able to satisfy himself that Dr. Broadbent had a proper attitude to flight instruction.  Mr. Hiller indicated he would resign if Dr. Broadbent did not accept his direction.  It was at that point Dr. Broadbent agreed to lodge the report and to discuss aspects of the flight with Mr. Hiller and undergo a check flight.

In the Air Safety Incident Report, Dr. Broadbent acknowledged he was in error in continuing the flight with MOGAS and referred to having received from Mr. Hiller "appropriate admonishment and warning to improve the airmanship aspects concerned which will be followed".  A few weeks later he wrote a letter about the incident to the Bureau of Air Safety Investigation ("BASI"), which was later published in the BASI Journal.  The theme of the letter was that, although the flight was completed safely, he was guilty of poor airmanship by deciding to continue the flight once he realised that he had refuelled with MOGAS.  However, in his affidavit in reply to Mr. Hiller's affidavit and in his evidence at trial, Dr. Broadbent maintained that he had done nothing wrong in refuelling with MOGAS and in completing the flight.  He said he acknowledged error on his part in these respects in his report to the CAA because, despite his own professional opinion that he had done nothing untoward, he adopted a conciliatory attitude in his report to avoid becoming involved in a long and fruitless argument, as he described it, with the CAA.  When he was asked whether, by acknowledging in his report that he was guilty of bad airmanship, he did that to stave off action being taken against him, he said:

"Well, my previous experience with bureaucracy is that if you are prepared to be contrite about these matters it often ends there ... despite your own professional opinion."

I accept Dr. Broadbent's evidence that, when he landed at Kooralbyn he believed he would be able to obtain AVGAS there:  he had done that a couple of months previously and Mr. Reed confirmed that both AVGAS and MOGAS were both available at Kooralbyn; while the ultra light aircraft there operated on MOGAS, a supply of AVGAS was kept for the
parachute school aircraft that also operated from Kooralbyn.  However, there was no AVGAS available when Dr. Broadbent sought it on 23 November, 1991.  After checking supplies, Mr. Reed told him that.  Mr. Reed pumped the MOGAS from a drum labelled "AVGAS".  But Dr. Broadbent was aware from the outset that he was buying MOGAS.  In the conversation that followed, Dr. Broadbent told Mr. Reed that his aircraft was certified for MOGAS.  This was not true, as Dr. Broadbent well knew:  the engine type had been approved in the United States for MOGAS, but the aircraft itself had not been so approved.  Although Dr. Broadbent denied saying anything to Mr. Reed about that and asserted he believed he was going to be supplied with AVGAS, he insisted, in his affidavit in reply and in his oral evidence, that it was acceptable to use MOGAS in the aircraft in question.  I reject Mr. Keane's affidavit evidence that Mr. Reed told Dr. Broadbent that he had both AVGAS and MOGAS:  in his oral evidence he said he did not overhear any part of the conversations between Dr. Broadbent and Mr. Reed, that he was off talking to the ultra light pilots.  Dr. Broadbent did not tell him, and he was unaware, that the plane had been refuelled with MOGAS until the following day.  Mr. Keane said that it was usual for the pilot in command (as he was) to take charge of refuelling - a statement consistent with reg. 138(4) of the CAR - but that Dr. Broadbent attended to that on this occasion in his absence from the aircraft.

Although Dr. Broadbent maintained his position that he did not realise he was refuelling with MOGAS until the operation was almost complete, much time was taken up at the hearing on his attempts to justify his position that the use of MOGAS in the aircraft on this occasion was safe.

In his first affidavit, he acknowledged that the regulations required an aircraft to use the fuel specified in the plane's flight manual and that the manual for this aircraft designated AVGAS.  He identified the main difference between AVGAS and MOGAS as being the stable consistency of the former whereas the volatility of MOGAS varied throughout Australia.  He added, however, that Queensland motor fuel is similar, if not identical, to AVGAS save for the colour of the fuel, which is the only distinguishing factor.  This opinion is plainly wrong in view of Dr. Hodges' evidence, the Associate Professor of Chemistry at Monash University, who Dr. Broadbent acknowledged as a leading expert in the use of MOGAS in aircraft engines.

In his affidavit in reply, Dr. Broadbent asserted (inconsistently with what he had to say in his first affidavit suggesting that he originally intended to drain the tanks at Coolangatta) that it was unnecessary to do that.  He supported this opinion with a further opinion that the use of MOGAS in the particular aircraft was permitted under the Civil Aviation Regulatory scheme:  he asserted that once the CAA withdrew the system of release notes for fuel, the responsibility for determining the fuel used in an aircraft rested entirely upon the pilot, who was free to accept whatever he considered to be the correct fuel.  His theory that it was open to the pilot to determine what was a suitable fuel for use in his aircraft led Dr. Broadbent into this position:

"But he could say water is gasoline cannot he?---He could do.  And if the aeroplane doesn't fly on it, then it's the pilot's responsibility.  On this occasion the aircraft flew quite satisfactorily on that fuel.  In fact, my engineers tell me we would be far better off using that fuel.  And the only reason I'm not using the fuel is because we don't have an STC and we cannot supply a regular supply of fuel.  The only thing missing was the piece of paper.  The aeroplane didn't know the paper was missing."

An STC is a Supplementary Type Certificate which Dr. Broadbent said was once, but was no longer, necessary in order to enable MOGAS to be legally used in a particular aircraft.

Even though his position was that he did not originally intend to refuel with MOGAS, he claimed that once, on his case, he realised what he was refuelling with, it was perfectly in order for him to use MOGAS rather than AVGAS.  Whether or not by the time the matter came to trial Dr. Broadbent had convinced himself of this proposition, it is wholly without substance.  He acknowledged that under reg. 138(4) of the CAR the pilot in command was required to comply with all the stipulations in respect of the operation of his aircraft as set out in the flight manual for the aircraft and that the Beechcraft Skipper flight manual specified the fuel to be used as AVGAS.  His insistence on maintaining that, because fuel suppliers were relieved of the obligation to certify, by release notes, that the fuel was AVGAS and because the responsibility had thus passed to the pilot to ensure that he used what was specified in the aircraft's manual as the proper fuel, it was open to the pilot, in effect, to use whatever fuel he liked, as long as he determined it was suitable for the aircraft must of itself raise concerns as to Dr. Broadbent's suitability to be a chief pilot.

In further justification of his assertion that it was in order to use MOGAS in this particular aircraft, he pointed in oral evidence to a section in GCAC's operations manual relating to the types of fuel which could be used in the company's aircraft; this stated that the minimum grade of fuel that could be used in a piston engined aircraft was the minimum grade specified in the flight manual for that aircraft and that, where the required grade of fuel was not available, the pilot in command was authorised to use the alternative grade approved in accordance with a table in the operations manual for the particular make and model engine fitted to the aircraft.  He said, of the minimum grade prescribed by the table for certain Lycoming engines, with one of which the Beechcraft Skipper was fitted, viz., 80/87:

"It says, on table 1, the 0235C engine can use 87 octane which is the same as MOGAS."

He said that the notation in the column in the table dealing with alternative approved grades of fuel indicated that MOGAS could be used, but for no more than 25% of the aircraft's operating time.  This testimony, which emerged, without any prior notice, in re-examination shortly before Dr. Broadbent left the witness box, was superficially impressive.  After the luncheon adjournment, counsel for the CAA sought leave to have Dr. Broadbent recalled for further cross-examination on the point.  Further cross-examination quickly elicited from Dr. Broadbent acknowledgments that the flight manual did not authorise the use of MOGAS, that the reference to the minimum approved grade of fuel was a reference to a grade of AVGAS and that he was well aware that, quite apart from octane ratings, there are other significant differences between AVGAS and MOGAS and that his earlier testimony that the 87 octane fuel referred to in the table in the operations manual was "the same as MOGAS" was incorrect.  His final position, however, was as follows:

"Well, you can, if you wish, go to any argument you like, Dr. Broadbent, but do I take it from your answer that you no longer rely upon the operations manual as justifying the use of MOGAS in this plane on this flight?---I wouldn't go as far as to say that.

Well, are you saying or are you not saying that this manual allowed you to put MOGAS in the plane?---I would think that it's an interpretation I would like to use.

...

And when did you first think of this interpretation that you would like to use?---Well, it's only a recent finding.

By recent, do you mean since yesterday?---About that time."

There is no substance in Dr. Broadbent's propositions.  The position is that reg. 138(4) of the CAR requires the pilot in command to use the fuel specified in the flight manual for the aircraft.  The flight manual for this aircraft specified AVGAS and only AVGAS.  His testimony in re-examination was either the product of abysmal ignorance or a cynical willingness to seize on an entry in a technical manual, wholly incapable of justifying his testimony, in an attempt to mislead the Court to his advantage.  Dr. Broadbent had done just that before.  He deliberately mislead the AAT to obtain a benefit for himself and Montchel:  when his purported approval as chief pilot of Montchel was revoked in October 1990, he promptly instituted proceedings in the AAT challenging the revocation and, on 2 November, 1990, wrote to the Tribunal seeking a stay of the revocation order.  The grounds he relied on in seeking the stay included an assertion that the revocation had effectively stopped Montchel from trading and that the suddenness of the decision had not permitted Montchel to find a suitably qualified chief pilot for its operation and "thus unreasonably penalised the company financially".  Another ground was that it was important for Montchel to obtain Dr. Broadbent as its chief pilot and that, if this did not happen, "the company will go to liquidation and numerous innocent people will be affected and their jobs may be lost".  In fact, Mr. Hiller, who was at the time employed as chief flying instructor of Dr. Broadbent's other
company, GCAC, was appointed chief pilot of that company at the same time as the CAA revoked Dr. Broadbent's approval as chief pilot of Montchel, as Mr. Hiller says:  "to avoid any loss of business to the Broadbent Group of Companies".  At the time Montchel did not have any employees and its business was practically non-existent.  Any charter business that Montchel could have done was carried out by GCAC.  The revocation decision did not inflict any financial loss on Montchel and did not expose it to liquidation.  Dr. Broadbent was successful in obtaining the stay.  His attempts in cross-examination to justify this letter on the basis that the revocation decision would have a "knock-on effect" on GCAC were unconvincing.

While Dr. Hodges said that there is no reason why any aeroplane engine could not be engineered to run on motor spirit so long as the safety issues were properly addressed, his evidence establishes that Dr. Broadbent ran a significant risk of engine failure in using MOGAS in this aircraft on this occasion.

According to Dr. Hodges, AVGAS is a more highly refined fuel than MOGAS, with a much lower volatility.  The main danger where MOGAS is used in an aero engine and aircraft not designed for such a fuel is that a vapour lock will develop in the fuel lines because of the volatility of MOGAS. Where a vapour lock occurs, full power can be lost within five seconds of the first sign of difficulty.  Such a lock is most
likely to occur just after take-off when there is less cooling airflow past the engine due to the slow speed; the risk of a vapour lock is increased if the engine is run for a long time before take-off.

The design of the Beechcraft Skipper airframe was such that there was an increased risk of vapour lock:  the fuel pumps were located forward of the fire wall and were thus exposed to high engine temperatures; there was no cooling system for the main fuel pump and parts of the fuel lines were not insulated.  There were a number of right angle bends in the fuel lines which would increase turbulence and thus the risk of vapour lock.  While vapour lock was not likely to occur in a gravity-fed fuel system, there would be no significant gravity-feed effect, so far as Dr. Broadbent's aircraft was concerned, during take-off.  Dr. Broadbent sought to counter Dr. Hodges' evidence by suggesting that there was little risk of vapour lock because the ground temperature at Kooralbyn was in the low 20s and that, at 5,000 feet, his height prior to landing at Kooralbyn, was pretty close to freezing point.  However, when challenged in cross-examination, he acknowledged that that was quite wrong.

While Dr. Broadbent said this was the only occasion on which he had flown this particular aircraft fuelled with MOGAS, he also said the only reason that an STC was not obtained for the Beechcraft Skipper by Montchel and GCAC was because they were unable to obtain a guaranteed regular supply of MOGAS at Coolangatta Airport.  Dr. Broadbent was quite wrong.  Dr. Hodges said that the airframe of the aircraft in question was unlikely to receive certification permitting MOGAS to be used, although he said that the particular engine fitted to the aircraft had been certified in the United States as suitable for use with MOGAS.  Certification depends upon two matters.  Firstly, the kind of engine and, secondly, the nature of the fuel delivery system.  It is the latter which Dr. Hodges, in the evidence I have summarised, said would prevent this aircraft being certified as one in which MOGAS could be used.

The evidence relating to this episode shows that Dr. Broadbent put his pupil, himself and his aircraft at risk because of his dangerous ignorance on the unsuitability of MOGAS as a fuel for the particular aircraft.  It shows a wholly unsupportable confidence in his own opinion which led him to attempt to maintain in Court his erroneous views by specious arguments.  It shows a willingness on his part to try to manipulate the CAA officials to his advantage by his false acknowledgment of personal error in the report he was forced by Mr. Hiller to submit to the CAA and in the letter he wrote to BASI.  Mr. Bryant was right when he said Dr. Broadbent had committed a "blatant" breach of the regulations.

In view of Dr. Broadbent's decision to use MOGAS and the criticisms to which his conduct is open, to which I have referred, I would not be prepared to give any direction to the CAA in these proceedings pursuant to s. 16 the ADJR Act to approve Dr. Broadbent as Montchel's chief pilot.

This conclusion does not, of course, necessarily mean that Dr. Broadbent will never be a proper person to be approved by the Civil Aviation Safety Authority as a chief pilot.  I have no power to suggest to the CAA how it should deal with any application that might be made in the future for its approval of Dr. Broadbent as a chief pilot and I say nothing about that.

The McNeil Incident - Great Keppel Island - 12 September, 1990

Mr. McNeil, who was called by the CAA, worked for GCAC from July 1990 until early September 1991.  For all save the first month or so, he worked full time.  On 12 September, 1990 he flew a charter flight from Coolangatta to Great Keppel Island.  He acknowledges he took off knowing that the aircraft was well overweight.  Captain Taylor calculated that at take-off it was overweight by more than 128 kgs - the weight of one of the passengers exceeded the capacity of the scales Captain Taylor used and he could not calculate the excess accurately.  Mr. McNeil thus contravened regs. 233(1)(b) and 235(4) of the CAR.

Mr. Mogg, in the first decision, regarded this incident only as showing that Mr. McNeil was either not properly trained or did not know the alternatives available to him in the situation that confronted him prior to deciding to fly overweight; Mr. Mogg appears to have regarded this as evidence for his conclusion that Dr. Broadbent had not maintained a satisfactory record in the conduct or management of flying operations.  Mr. Bryant, however, in the second decision, regarded this incident as having much greater significance.  He said:  "There is sufficient evidence available to conclude Mr McNeil departed Coolangatta in an overloaded aircraft because of pressure from you, the Chief Pilot, to operate overweight."  This conclusion formed part of Mr. Bryant's reasons for the view that Dr. Broadbent had a demonstrated unwillingness to comply with relevant CAR.

A large body of evidence was called at the hearing directed to the important issue of whether Dr. Broadbent exerted pressure on pilots of Montchel and GCAC to fly overweight and also as to the technical significance of an aircraft flying overweight.  Mr. Mogg, consistently with his decision, acknowledged in cross-examination that he had no information to suggest that Dr. Broadbent had any foreknowledge that this flight would take off overloaded.  It is surprising, in view of the material produced by the CAA on these issues, much of which was in all probability available to Mr. Mogg when he gave his decision, and the obvious notoriety within the CAA's organisation that Dr. Broadbent had achieved, that Mr. Mogg attached such little significance to this particular incident, in comparison with that which Mr. Bryant a little while later attached to it.  Mr. Mogg acknowledged he had read what were referred to as "the background papers" concerning each incident and it is clear that he was familiar with a body of information additional to that which he identified in his decision as that upon which he relied in reaching the decision.

I am not prepared to find that Dr. Broadbent ever systematically sought to coerce or pressure pilots into flying overweight or that he put pressure on Mr. McNeil to fly overweight on any occasion.

It is apparent from the evidence that, by September 1990, the CAA was so concerned that Dr. Broadbent was coercing pilots to fly overweight that it put his companies under close surveillance.  Its concerns seemed to have been generated by information given to it by a Mr. Orr, probably in late August 1990 and within a short while of his having been dismissed from GCAC's employ by Dr. Broadbent.  Mr. Orr was employed with GCAC as a Grade 2 Flight Instructor for one month until 24 August, 1990.  He was offered that employment by Dr. Broadbent earlier that year.  Shortly after the charter flight Mr. McNeil flew to Blackwater on 6 August, 1990, Mr. Orr said that Dr. Broadbent gave what he called a lecture to himself and other pilots employed in Dr. Broadbent's organisation to impress on them how much Mr. McNeil had cost the organisation by refusing, in effect, to fly overweight from Coolangatta and so having to refuel at Emerald; he said Dr. Broadbent warned the pilots that any complaints about having to fly overweight by them would mean they would be out of a job and that the aircraft used could fly adequately at 300-400 lbs overweight.  Mr. Orr said he was very concerned and typed up a note of this "lecture" that same day or the next day.  That he prepared this note shortly after the "lecture" and while still in GCAC's employ is not corroborated.  He later gave it to the CAA officers, most probably in late August 1990.  By 5 September, 1990, he had given a statement repeating the comments he attributed to Dr. Broadbent in his notes to Mr. Enders, the CAA's investigator.  Dr. Broadbent made his offer of employment to Mr. Orr in the expectation that Mr. Orr would soon qualify for a Grade 1 Instructor rating and be able to take up the position of Deputy Chief Flying Instructor with GCAC.  Mr. Orr, however, aborted the relevant test flight part way through and thus failed and apparently achieved only a minimum standard of pass on the second attempt.  He was not as competent or as experienced a pilot as the curriculum vitae he sent to Dr. Broadbent suggested.  Much of his more impressive looking experience was only as a co-pilot.  Dr. Broadbent's letter of 24 August, 1990, effectively dismissing Mr. Orr, must have been read by him as causing serious damage to his hopes of making a living as a pilot in Australia, although he denied that.  He must have realised, on reading this letter, that any prospective employer who sought information about him from Dr. Broadbent would be unlikely to maintain any interest in offering him a job.  Soon after, Mr. Orr sought legal advice concerning recovery of certain expenses from Dr. Broadbent and action Dr. Broadbent apparently took to garnishee his wages.  The damage that Dr. Broadbent could do to him in pursuing his career provided Mr. Orr with a strong motive to claim that he was dismissed because he was not prepared to participate in improperly conducted operations.

Mr. Orr attributes to Dr. Broadbent a much more explicit statement about flying overweight than does Mr. McNeil, who said that, on a different occasion from that referred to by Mr. Orr but around about the same time, Dr. Broadbent made a comment to him, in the presence only of his brother, which he took as an indication that Dr. Broadbent would not disapprove of overweight flying.  Mr. McNeil acknowledged, however, that Dr. Broadbent might have meant, in effect, no more than that it was the pilot in command who was responsible for checking the take-off weight of his aircraft.  That accords with reg. 233(1)(b) of the CAR.  The comment, "I don't want to hear about overweight flying or flight and duty times", which he said Dr. Broadbent made in response to an expression of concern by him about flying overweight is, in that context, equivocal, as Mr. McNeil conceded.  Dr. Broadbent denied ever making the comment, which was relied on by the CAA in support of its contention that he had a policy of flying overweight for financial reasons.  But even if he made it, it is in my view likely that Dr. Broadbent, in his brusque manner, was merely emphasising that it was the pilot in command's responsibility to ensure that his aircraft did not fly overweight and that pilots were not to come running to him if they were confronted with an overloaded plane.  Mr. McNeil did not give any evidence of the more general context in which he says Dr. Broadbent made this comment, which renders this alternative interpretation at all fanciful.  I have mentioned Dr. Broadbent's denial:  Mr. McNeil says another pilot, his brother, was present.  But the brother was not called to support him on what was presented by the CAA as an important piece of evidence and there was no explanation for the brother's absence.

This incident provides no evidence relevant to Dr. Broadbent's fitness to be a chief pilot, save for the way Dr. Broadbent conducted himself in his response to Captain McEvoy's request for an explanation for the incident prior to Captain McEvoy, on 29 October, 1990, purporting to withdraw the CAA's approval of Dr. Broadbent as Montchel's chief pilot, the decision that was the subject of the AAT proceedings I have referred to.  In his response to Captain McEvoy's request, Dr. Broadbent made a number of exculpatory statements which were untrue.  He acknowledged as much in relation to some of these statements in his oral evidence.  He was contradicted on another of these statements (that the band was initially of the view that all of the equipment would fit into the Cessna 402) by Mr. McGrew, who could have been his only possible source of information for the statement he made to Captain McEvoy.

Dr. Broadbent's willingness to say anything to the CAA without regard to the accuracy of what he told it is relevant to his fitness to be a chief pilot.  But I take into account the poisonous relationship that had come to exist between Dr. Broadbent and various CAA officers by that time as explaining, if not justifying, Dr. Broadbent's conduct here.

Mr. Bryant, in my view, correctly disregarded this matter in arriving at the second decision.

The Aubort incident - Great Keppel Island - 15 October, 1990

Mr. Mogg, in the first decision, treated this incident which occurred at Great Keppel Island on 15 October, 1990 as of significance only because Montchel's pilot, Mr. Aubort, refuelled from a drum without carrying out the necessary fuel contamination checks in accordance with CAO s. 20.9, para. 3.3.  He regarded it as evidencing, inter alia, Dr. Broadbent's incapacity to control operational matters affecting the safety of the flying operations of Surf Air and his incapacity to ensure that operations were being conducted in compliance with the regulations and orders.  Mr. Bryant, however, did not regard this incident as significant, for the purposes of the second decision.

It is necessary to deal at the outset with a submission by the CAA that I should find that, contrary to his evidence, Mr. Aubort did not in fact refuel at Great Keppel Island, but falsely told the CAA's investigators, Messrs. Rundle and Adams, that he did that to conceal the fact that he had taken off overweight from Coolangatta.  The CAA's point was that here was evidence of a third instance of deliberate overweight flying following close on the McNeil and McGrew incidents, which lends support to the notion that there was a policy to that effect enforced by Dr. Broadbent.

I reject the CAA's invitation to so find.  This aspect of the case has a somewhat unfortunate background.  Before the CAA went into evidence, I excluded, by agreement of the parties, passages in the affidavits of Messrs. Rundle and Adams that suggested that Mr. Aubort may not have refuelled on Great Keppel Island.  At the time, counsel for the applicants did not object to passages in the reports exhibited to their affidavits that explicitly raised this question and which recorded their belief that Mr. Aubort had taken off overweight from Coolangatta by what they regarded as the insignificant amount of 11 kgs:  they considered that this was due to him having more fuel on board than he showed on his flight plan.  Then in cross-examination, counsel for the CAA put to Mr. Aubort, without objection, questions to the effect that, if he had taken off from Coolangatta with enough fuel to make the return trip without refuelling, he would have been "a little overweight out of Coolangatta", a proposition with which he agreed.  Counsel was obviously cross-examining on the information in the Rundle and Adams report.  Later again, in the course of the hearing, counsel for the applicants objected to these passages in the reports.  I excluded them in circumstances in which counsel for the CAA acknowledged that there was no evidence that Mr. Aubort did not refuel at Great Keppel Island and in which, while not consenting to the exclusion, counsel did not put forward any reasons to allow this evidence to remain before me.  Then, in examination-in-chief of Mr. Adams, counsel started to question him about the absence of wheel tracks in the area where Mr. Aubort's aircraft was checked:  this questioning was designed to elicit evidence that the aircraft had not been refuelled, as Mr. Aubort claimed.  Counsel for the applicants objected and, after some discussion, counsel for the CAA did not seek to pursue this line of questioning.  Still later again, counsel for the CAA applied to re-admit into evidence the passages in the Rundle and Adams report which I had previously excluded; he pointed to paragraph 49 of Captain Fooks' affidavit, previously overlooked, in which Captain Fooks recorded a statement to him by Dr. Broadbent, made in the course of a very long conversation in February 1992, in the course of Captain Fooks' annual inspection on behalf of the CAA of GCAC:  Dr. Broadbent told him, so Captain Fooks said, that Mr. Aubort had not actually refuelled on Great Keppel Island but "[Dr. Broadbent] told me he had to protect Aubort".  Captain Fooks does not say Dr. Broadbent identified just what he sought to protect Mr. Aubort from.  Dr. Broadbent, in cross-examination, denied saying any such thing.

I declined to re-admit the passages in these reports, given the way the proceeding had been conducted up until then and the need, if the evidence was to come in, to recall a number of witnesses.  On a re-reading of the relevant evidence, it seems to me that while Mr. Aubort may well have taken off overweight from Coolangatta, it is likely that such a transgression was of minimal significance.  In a passage I excluded from evidence, Mr. Adams, in his affidavit, said they went to Great Keppel Island to do a check on Mr. Aubort's plane after having received information from another officer of the CAA that the aircraft was suspected to be overweight.  Although Mr. Aubort took off from Coolangatta with more fuel on board than he showed on his flight plan, it appears from the passage in the Rundle and Adams report, which was once in evidence but which I excluded and refused to re-admit, that the 570 litres he acknowledged he had on board on take-off represented a full fuel load; there appears to be no reason to doubt his evidence that he weighed each passenger individually and that the position was as assessed by Messrs. Rundle and Adams, viz., that when he took off from Coolangatta he was overweight by a minimal amount (of which Messrs. Rundle and Adams noted in their report:  "We don't take people to court for 11 kgs.").  But Mr. Aubort may very well have been concerned at being overweight to any extent, in view of the McNeil and McGrew incidents of the previous month.  I am reinforced in this view, firstly, by the failure by counsel for the CAA to suggest that he had any other evidence than the material in the Rundle and Adams report that I excluded to show that Mr. Aubort took off not merely overweight, but significantly overweight, i.e., that there was evidence suggesting the existence of a policy to fly overweight, and also by Mr. Mogg's assessment of the information concerning Mr. Aubort's having taken off a little overweight as irrelevant when he took into account the Great Keppel Island incident in reaching the first decision adverse to Dr. Broadbent.  Given the significance he saw in the incidents of 12 and 13 September, 1990 as suggesting a history of overloaded flying, it is difficult to accept that, if he thought the evidence of overloaded flying on 15 October was of any moment, he would not have taken it into account in making the first decision.  He was very likely aware of the information the CAA had that suggested that Mr. Aubort did not refuel but only said he did to cover up flying overweight.

There is good reason to suspect that Mr. Aubort may not have been telling the truth when he told the CAA's investigators on the Island that he had refuelled there.  In his evidence, he claimed he visually checked a sample of the fuel from the drum for water contamination before refuelling using a plastic sample tube and that he physically checked the fuel for sand and grit as he emptied out the sample tube.  Such a method of testing, if performed by a man who is an experienced pilot, as well as an experienced aero engineer (as Mr. Aubort is), would appear to ensure, for practical purposes, that there is no water or other contamination of the fuel.  Messrs. Pedashenko and McGrew confirmed this.  However, although Mr. Aubort was obviously concerned at being questioned by the investigators and wrote soon after to Mr. Croft, Assistant General Manager of the CAA's Safety Regulation Group, about the matter, he admitted that he did not tell the investigators of the tests he claimed to have done a short while before, even though Mr. Rundle specifically asked him, at the time, whether he had done any water contamination checks.  Mr. Aubort failed to mention the tests he claims to have done in his letter to Mr. Croft also.  If he had refuelled on the Island a short while before the investigator spoke to him, it is extremely surprising that, when specifically questioned about fuel tests, he did not take the opportunity to provide information to his advantage, which must have been then very fresh in his mind.

Mr. Roseberg, when chief pilot of Surf Air in the period 1988 to May 1989, had set up the refuelling facility for Surf Air planes on the Island.  This involved access to the Australian Airlines fuel pump.  Mr. Aubort, however, claimed not to have used that pump, but rather a pump without a filter which was sitting in a drum of 2 stroke motor boat fuel which was pointed out to the investigators.  Mr. Aubort knew of the Australian Airlines pump:  he said he had used it on previous occasions.  He gave no explanation for not using the Australian Airlines pump on this occasion.  If he did, in fact, refuel on the Island, it is surprising that he would use the pump he indicated, given that, with his experience, would have known the dangers referred to by Dr. Broadbent of refuelling an aircraft with a pump used with 2 stroke motor fuel unless the pump was carefully cleaned out.

The drum was standing upright, i.e., in a position to attract water and sand grit around the bung area, when the investigators saw it.  This is so significant a matter that Dr. Broadbent acknowledged that, if the drum had been stored upright, it should have been rejected.  Mr. Aubort says that when he first went to the drum, it was lying safely on its side, but that he left it upright because he did not intend to use it again, even though fuel remained in the drum.  Mr. Adams dipped the drum and found it about one-third full, i.e., there were about 70 litres left.  But Mr. Aubort did not leave any indication to other pilots not to use it.  While Mr. Aubort says he did not notice any sign of grit or rust when he unscrewed the bung - the presence of that would have required the drum to be rejected, according to both Dr. Broadbent and Mr. Pedashenko - Mr. Adams says that the bung was only screwed in finger tight and when he unscrewed it, this made a noise suggesting that there was grit or rust in the screw threads.  Mr. Rundle confirms this.  It is difficult to accept Mr. Aubort's explanation for how the investigators came to find the drum standing upright.

Mr. Aubort claimed he refuelled with the assistance of the Keppel Island Water Sports Manager, Mr. Kasper.  Mr. Kasper did not give evidence.  In response to his query, Mr. Rundle says Mr. Kasper told him he did help take the drum out to the plane, but said he did not actually help refuel the plane.  While Mr. Kasper did not give evidence, Dr. Broadbent was able to obtain from him a statement dated 20 November, 1990.  Mr. Kasper confined himself in this statement to dealing with what the investigators had to say to him that supported Dr. Broadbent's claims that they had behaved in an overbearing manner.  He made no mention of whether he helped in the refuelling of the aircraft and, despite his apparent willingness to provide this statement, the applicants did not seek to obtain any written confirmation from him suggesting that the plane had been refuelled or any information at all about the important circumstances in which Mr. Aubort claimed refuelling took place.

On Mr. Aubort's own account, the way he claims he went about refuelling is full of what appears to be unnecessary and unexplained departures from proper practice.  All these considerations raise a suspicion as to whether Mr. Aubort ever refuelled on Great Keppel Island.  However, the issue was not fully litigated for the reasons I have mentioned and I am not prepared, in these circumstances, to make a finding on whether or not refuelling occurred.

In reaching his first decision, Mr. Mogg said that he regarded the Aubort incident as significant only because Mr.  Aubort admitted to refuelling without carrying out the prescribed fuel contamination checks.  Mr. Aubort, as I have mentioned, admitted he did not tell the investigators he had carried out any checks, although he claimed in evidence that he had in fact carried out extensive contamination checks but, for a wholly unexplained reason, did not mention that when the investigators questioned him about that very matter.  Mr. Mogg did not attach significance in his decision to the use of a pump without a filter, even though Captain McEvoy, in his letter of "show cause" to Dr. Broadbent of 17 October, 1990, specifically mentioned that and Mr. Mogg listed Captain McEvoy's letter as one of the pieces of documentary evidence he had regard to, in making his decision.  Mr. Bryant ignored the whole episode in making the second decision.  Mr. Collins, in his report to Mr. Bryant made after a detailed investigation, including a lengthy interview with Dr. Broadbent, did not see the Aubort incident as reflecting adversely on Dr. Broadbent's suitability to be chief pilot, even on the assumption that Mr. Aubort had refuelled in the manner alleged.

It was suggested that the refuelling facilities at Great Keppel Island available to Surf Air were inadequate and that Dr. Broadbent must have known of this.  Mr. Aubort certainly claimed they were inadequate.  While he did not give any reasons for this opinion, he mentioned in his letter to the CAA of 18 October, 1990, having taken steps to arrange for a new pump with filter, to be kept on the Island for Surf Air's exclusive use.  It therefore appears that his opinion as to the inadequacy of the refuelling facilities was confined to the matter of the pump.  It is difficult to understand this, in view of the fact that Mr. Aubort was well aware of the availability of the apparently acceptable Australian Airlines fuel pump, which he had himself used on other occasions.  Mr. Roseberg, as I have said, established the refuelling facility when he was Surf Air's chief pilot.

So far as I can gather from the evidence, there does not, in my opinion, seem to have been anything radically deficient with Surf Air's refuelling facility on the Island.  However, Dr. Broadbent said that, while he was familiar with the facilities and that he did not regard them as inadequate until Mr. Aubort mentioned that they were, after the incident of 15 October, 1990 he accepted that they were inadequate.  He identified, in addition to the provision of a new pump, a need to "tighten up" the records relating to fuel kept on the Island.  Apart from a failure to keep adequate records in relation to fuel expiry dates and the like, Mr. Mogg's concerns centred upon what Mr. Aubort did in the way of refuelling.  Even if it is accepted that he did refuel, it is clear, for the reasons I have given, that he went about it in a way that was full of deficiencies.  But it is difficult to agree with Mr. Mogg that this particular incident reflected on Dr. Broadbent's capability of chief pilot because it showed a failure on his part to ensure that he had supplied correct refuelling facilities.

On 17 October, 1990, Captain McEvoy wrote to Dr. Broadbent as chief pilot in relation to the incidents of 12 September, 13 September and 15 October, 1990; he described them as involving serious breaches of the regulations governing air safety and called on Dr. Broadbent as chief pilot to explain how these potentially dangerous situations were allowed to develop.  Dr. Broadbent's reply of 23 October, 1990, in so far as it deals with the incident of 15 October, 1990, is full of inaccuracies.  For example, he claimed that the investigators "harangued" Mr. Aubort in front of the passengers; that they "berated" him and that they attempted to interrogate the passengers.  Mr. Aubort, however, denies any such incidents occurred.  In the letter, Dr. Broadbent claimed that the drum had been opened [i.e., opened for the first time] only 48 hours previously by Mr. Aubort and partially used.  Mr. Aubort, in evidence, said he could not recall having done that and also said that he never told anyone that he had done that.  Dr. Broadbent also wrote that the drum was "on a release note and was not time expired".  In cross-examination, he said he had actually looked at the relevant fuel records before writing the letter, but he did not have the document readily available to him and it would take a good deal of searching to turn it up.  Much later in the trial, Mrs. Broadbent confirmed that she had made a search for the relevant fuel documents and had located fuel suppliers' invoices showing that 16 drums were delivered to the Island in January 1990, which she thought was the last delivery before the incident of 15 October, 1990.  Contrary to what Dr. Broadbent said in the letter, she said that there were no release certificates, that the only note of the expiry date of the fuel was the notation on the drum.  The evidence was that the drum which Mr. Aubort said he used to refuel from did not have any expiry dates visible on it.  In the letter, Dr. Broadbent also asserted that, if the drum was stored upright, it was "in an inverted position with the cap downwards" to prevent any possibility of contamination and that Mr. Aubort refuelled with a special pump with an in-built filter.  In these last two respects, he appears not to have bothered to check the position with Mr. Aubort, who contradicts what Dr. Broadbent has to say here.  It is difficult to accept that Dr. Broadbent made any attempt to check his facts before making these exculpatory assertions in this letter, in which he went on to attack the conduct of various of the CAA's officers and put Captain McEvoy on notice that avenues were being explored to recover the costs incurred by the company in respect of what Dr. Broadbent described as the unlawful grounding of Mr. Aubort's aircraft on 15 October, 1990.  His conduct here does him no credit but, for the reason I have mentioned, do not regard it as sufficient to demonstrate his unfitness to hold the position of chief pilot.

CONCLUSIONS

I have accepted that the applicants have shown that the CAA's delegates fell into an error of law in making each decision. The Court's discretion to make orders under s. 16 the ADJR Act is thus enlivened.  I will not, however, make any formal order for the moment, but will leave it to the parties to consider these reasons and the findings I have made.  There will be liberty to each of the parties to list the matter before me for directions on seven days' notice to the others.  The costs of and incidental to the hearing of the separate issues are reserved.

I certify that this and the preceding
78 pages are a true copy of the
reasons for judgment herein of the
Honourable Justice Drummond.

Associate:

Date:        15 September, 1995

Counsel for the applicants:        D. Boughen and

G. Radcliffe

Solicitors for the applicants:     Robinson & Robinson

Counsel for the respondent:        R. Chesterman Q.C. and

J. Sheahan

Solicitors for the respondent:     Mallesons Stephen Jaques

Dates of Hearing:                  6-10 September, 1993,

13-15 September, 1993 and

18-19 November, 1993