Byers and Civil Aviation Safety Authority

[2005] AATA 669

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2005] AATA 669

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No W2003/161

GENERAL ADMINISTRATIVE  DIVISION		)
Re		IAN HAROLD BYERS

Applicant

And CIVIL AVIATION SAFETY AUTHORITY

Respondent

DECISION

Tribunal Associate Professor S D Hotop, Deputy President
Air Marshal I B Gration, Member

Date12 July 2005

PlacePerth

Decision The Tribunal affirms the decision under review.

..............(sgd S D Hotop)..................

Deputy President

CATCHWORDS

CIVIL AVIATION – private pilot (aeroplane) licence – restricted private pilot (aeroplane) licence – student pilot (aeroplane) licence – applicant flew aircraft at height lower than 500 feet during flight from Nullarbor to Forrest and from Forrest to Kalgoorlie – not essential through stress of weather or other unavoidable cause for applicant to maintain height lower than 500 feet – no good reason for applicant to fly aircraft at height lower than 500 feet – applicant contravened reg 157 of Civil Aviation Regulations – applicant flew aircraft at low height towards and alongside moving train during flight from Forrest to Kalgoorlie – applicant reckless as to whether manner of operation of aircraft could endanger life or person of another person – applicant contravened s 20A of Civil Aviation Act – applicant failed in his duty with respect to matter affecting safe operation of aircraft – applicant not a fit and proper person to hold pilot licences – applicant’s pilot licences should be cancelled – decision under review affirmed.

Civil Aviation Act 1988 (Cth) s 20A

Civil Aviation Regulations 1988 reg 157, reg 166 and reg 269

Re Repacholi and Civil Aviation Safety Authority  (2003) 75 ALD 312

REASONS FOR DECISION

12 July 2005 Associate Professor S D Hotop, Deputy President
Air Marshal I B Gration, Member  

Introduction

1.      Ian Harold Byers (“the applicant”) has applied to the Tribunal for review of a decision of a delegate of the respondent, the Civil Aviation Safety Authority (“CASA”), dated 4 April 2003, cancelling his Private Pilot (Aeroplane) Licence (“PPL”), Restricted Private Pilot (Aeroplane) Licence (“RPPL”) and Student Pilot (Aeroplane) Licence (“SPL”) (ARN 120194).

2. At the hearing the applicant was represented by Mr P Lithgow of counsel, and CASA was represented by Mr A Anastasi, a solicitor employed in the Office of Legal Counsel, CASA. The Tribunal had before it the documents (“T documents”, pp 1-139) lodged by CASA in accordance with s 37 of the Administrative Appeals Tribunal Act 1975 (Cth), and various documentary exhibits tendered in evidence by the applicant (Exhibits A1-A9) and by CASA (Exhibits R1-R18). Oral evidence was given by the applicant and by the following additional witnesses: Andrew Searle (who was called by the applicant), Kaitlin Scott, Kevin Free, Brett Mayger, Peter Scott, John Cramb, and Terence Robinson (who were called by CASA). Oral submissions were made by Mr Lithgow and by Mr Anastasi at the hearing and, pursuant to a Direction of the Tribunal, supplementary written submissions were subsequently filed by each of them.

The Factual Background

3.      The relevant background facts, which appear from the T documents and which are not in dispute, are as follows.

4.      The applicant was, at all material times, the holder of PPL, RPPL and SPL (ARN 120194).

5.      The SPL was issued to the applicant on 17 August 1972, the RPPL was issued to him on 21 December 1972, and the PPL was issued to him on 20 October 1975.

6.      The PPL, RPPL and SPL issued to the applicant included, at all material times, an aircraft endorsement for aircraft described as “single piston engine aeroplanes”, thereby authorising him to operate a CT-4A aircraft.

7.      The applicant is a Director of IHB Pty Ltd which owns a CT-4A aircraft registered as VH-AOF (“the aircraft”).

8.      The aircraft was, at all material times, operated under a limited category certificate of airworthiness.

9.      By reason of CASA Instrument No JKT 13/94, issued on 29 November 1994, the applicant was, at all material times, approved to conduct “low level aerobatics”.

10.     The applicant did not, at any material time, hold a specific or general permission, issued by CASA, to conduct low flying operations.

11.     On 31 July 2002 the applicant flew the aircraft from Nullarbor to Forrest, and from Forrest to Kalgoorlie, in the State of Western Australia (“the flight”).

12.     By letter (undated) from an officer of CASA, the applicant was invited to show cause in writing why his PPL, RPPL and SPL should not be varied, suspended or cancelled on the grounds of certain specified contraventions of the Civil Aviation Act 1988 (Cth) (“the Act”) and the Civil Aviation Regulations 1988 (“the CAR”) which may have been committed by him by reason of the flight.

13.     By letter dated 6 December 2002 the applicant’s solicitors responded to the abovementioned show cause notice.

14.     Following further correspondence between CASA and the applicant’s solicitors, a delegate of CASA, by letter dated 4 April 2003, notified the applicant that he had decided to cancel the applicant’s PPL, RPPL and SPL (ARN 120194), with effect from that date.

15.     On 16 April 2003 the applicant lodged with the Tribunal an application for review of the delegate’s decision of 4 April 2003.

The Applicant’s Evidence

16.     An Outline of Evidence signed by the applicant, dated 30 July 2003, was tendered in evidence (Exhibit A2).  Its contents are as follows:

“1At all material times until 11 (sic) April 2003 I was the holder of various pilot licences (together with endorsements) including a private pilot (aeroplane) licence No 120194 which I obtained on 20 October 1975.

2I have accumulated approximately 3000 hours experience as a pilot.

3On or about 28 July 2002 Mr Glen Caple inquired whether my aircraft would be available for a trip to Nullarbor so he could assist in recovering a Mooney aircraft damaged whilst attempting to land at Nullarbor on 26 July 2002.  The aircraft had been flown to Nullarbor by two student pilots as part of a navigation exercise.

4Subsequent to this conversation, Mr Caple asked me whether I could also fly to Nullarbor (with him) in my aircraft because he believed it would be possible to repair the Mooney aircraft which he could then fly back to Jandakot.  I agreed to this proposal.

5Mr Caple and I departed Jandakot in my aircraft and flew to Kalgoorlie on 29 July 2002.  We stayed in a motel in Kalgoorlie on 29 July 2002.

6On 30 July 2002 we departed Kalgoorlie for Forrest, however Mr Caple, as pilot in command for this leg of the flight, noticed that the  engine oil pressure was below normal limits and consequently we returned to Kalgoorlie.  Work was undertaken to repair the oil pressure problem and we once again departed Kalgoorlie for Forrest.

7On arrival at Forrest I was told by the refueller at Forrest that there were limited stocks of AVGAS available at Forrest.

8We departed Forrest for Nullarbor, arriving at Nullarbor in the mid-afternoon of 30 July 2002.  We met the two student pilots, Ms Kaitlin Scott and Ms Ebony Hickey.

9Mr Caple commenced inspection and rectification of the damaged Mooney.  I assisted Mr Caple in this task.

10Repairs continued on 31 July to the damaged Mooney aircraft.  Mr Caple determined that the aircraft could be made airworthy and be flown back to Jandakot.

11It was decided that Mr Caple would fly the repaired Mooney aircraft with one of the students, and I would fly my aircraft with the other student.

12On 31 July 2002 Ms Scott (one of the students) and I departed Nullarbor in my aircraft.  I was the pilot in command.

13After take-off, which was in a southerly direction, I commenced to turn left to track to the whale spotting area south east of the motel and landing area.

14After overflying the whale spotting area I tracked back to Nullarbor and flew over the landing ground, setting course for Forrest.

15At this time I commenced a wind strength/direction check using the IFR GPS.  I was able to ascertain the wind direction at 2,500ft to be 320° with a headwind component of 38 knots.

16At this time I descended to approximately 500ft and found the headwind component to be 25 knots.

17Due to the headwinds I was experiencing, and to ensure my aircraft would conserve fuel for the flight, I flew to Forrest maintaining an approximate height of 400ft AGL.

18During this leg (Nullarbor to Forrest), Ms Scott also flew the aircraft from the right hand seat and she maintained the same altitude of approximately 400ft AGL.

19Shortly prior to arriving at Forrest Mr Caple in his aircraft overtook me and radioed me to request that I formate with his aircraft to check the undercarriage of his aircraft for correct retraction and possible damage.  Both Mr Caple and I have endorsement for formation flying.

20I flew reasonably close to Mr Caple’s Mooney aircraft to make the necessary checks.  After completion of the checks I radioed the O.K. and Mr Caple’s aircraft accelerated and landed at Forrest ahead of my aircraft.

21At Forrest both aircraft were refuelled.  The passengers (Ms Scott and Ms Hickey) were given the opportunity to swap aircraft, however they expressed a preference to continue as they were.

22Shortly afterwards Ms Scott and I departed from Forrest for Kalgoorlie in my aircraft and experienced similar wind conditions to those on the Nullarbor to Forrest leg.  Accordingly, the leg from Forrest to Kalgoorlie was flown maintaining a height of approximately 400ft AGL.

23I deny that I flew or buzzed any stationary or moving train at any time.

24Ms Scott also flew the aircraft from the right hand seat on the Forrest to Kalgoorlie leg, maintaining the same altitude as I had been flying it, that is, approximately 400ft AGL.

25As we approached Kalgoorlie I calculated there was sufficient fuel reserves and accordingly climbed to 2,500ft for the approach to Kalgoorlie.

26We stayed the night in Kalgoorlie.  Mr Caple and I shared a motel.  On 1 August 2003 both aircraft departed Kalgoorlie for Jandakot.  Ms Hickey flew in my aircraft in the right hand seat.  The flight from Kalgoorlie to Jandakot was at approximately 1,500ft AGL.

27At no time has Ms Scott made any complaint to me about the manner or style of my flying, and indeed when Ms Scott was flying the aircraft from the right hand seat she maintained a similar altitude to that which I had been flying the aircraft at.”

17.     In his oral evidence the applicant verified the contents of the above Outline of Evidence.

18.     The applicant, a semi-retired electrical engineer, said that, since being issued with his pilot licences in the 1970s, he had “actively flown” up until April 2003 (when his licences were cancelled), flying approximately 100 hours per year or 2 hours per week “pretty regularly”.  He said that about 50%-60% of his flying time had been devoted to flying himself to and from electrical engineering assignments, and the remaining time had been for recreational purposes.  He said that he had the following ratings, namely, multi-engine rating, class 4 instrument rating, and aerobatic and formation flight ratings.

19.     As regards the Jandakot-Kalgoorlie-Forrest-Nullarbor flight on 29-30 July 2002, referred to in paras 5-8 of the applicant’s Outline of Evidence (above), the applicant said that, when he and Mr Caple landed the aircraft at Forrest in order to refuel, the refuellers told them that they were having some problems with their fuel supply and they suggested that, if the applicant and Mr Caple were proposing to land at Forrest on their return flight, they should take on the maximum amount of fuel before departing Nullarbor so that they would only require a small amount of fuel at Forrest.  He confirmed that he subsequently did what the refuellers had suggested.

20.     As regards the return flight, the applicant said that, before departing Nullarbor in the aircraft on 31 July 2002, he spoke to the “whale watcher pilot” about flying over the whale watching area in the Great Australian Bight about 15 nautical miles from the Nullarbor Motel.  He continued:

“… the whale watcher pilot suggested to go and have a look because there were a large pod of whales, very visible and very close to the shore that we should have a once in a lifetime look at these things.  So, we all agreed and Glen Caple and Ebony Hickey started the Mooney and they taxied out to use the dirt strip behind the Nullarbor Motel.  I started my aircraft and moved towards the road to back track up the road to use the most into the wind runway.  Mr Caple used the dirt taxiway up to his airstrip and I couldn’t see him after that because of the very fine dust, and they call it bull dust in the Nullarbor, it’s very, very fine dust.  He moved off to the – his runway, I moved up to mine.  I left before him.  I heard him take off and we tracked to the whale watching area to the south east, we – about 15 miles away from the airport.  We flew the whale watching area back towards the west.  I tracked back to the Nullarbor airstrip, overflew the airstrip, set my time and course for Forrest.”

(Transcript, p 20)

21.The applicant’s evidence regarding the flight to and from the whale watching area was as follows:

“Now, what height are you flying as you head down to the whale watching area? --- I left here, of course we’re at ground level, and climbed up to about 400 feet and tracked towards the coast, then climbed up again to 1000 feet above sea level, across the – the ground, across the cliff tops.

Yes? --- And at the cliff tops turned right and then tracked back along the coast, along over the water at 1000 feet.

All right.  And then at some point you turned more or less north to come back? --- Well – well, north – north west, yes.

…

All right.  Anyway, where you’re coming back to the Nullarbor Motel, what height are you flying at? --- 1000 feet.

All right.  As you pass over the Nullarbor Motel airport complex, for want of a better description - - -? --- Yeah.

- - - what height are you flying? --- Most likely at 1000 feet, that’s what I was at, yes.”

(Transcript, pp 22-23)

22.The applicant gave the following evidence regarding the Nullarbor-Forrest leg of the return flight:

“Now, as you leave Nullarbor you have the Mooney behind you and you’re in front, you’re flying the aircraft? --- Hm mm.

All right?  What happens? --- Well, I found that there was a lot more headwind than was on the forecast, headwind component.  The wind was more to the north than we expected and it was a lot stronger than expected.

All right? --- I radioed Mr Caple and in fact we then turned on to a common radio frequency so we could talk to each other whenever we felt like it.

Yes? --- And which I did quite a few times on the trip to make sure I asked him what – what height he was at and what his wind component was.  We both have GPS, we both have remote magnetic indicator compasses which are extremely accurate, as you know in your airport.  We both have IFR instrumentation, we both know exactly where we are and we can both have headwind components.  We can even – we can even verify this by dialling in to GPS and it will tell us what our headwind component is and what our direction wind is.  I asked Mr Caple what height he was at.  He said he was flying at 2500 and that he was suffering a large headwind component and I think, from memory, he said around about 35/38 knots.  I then descended to 500 above ground level to see what the wind was like.  It was less, so I maintained approximately 500 feet.

All right? --- I had – I had 100 knots indicated on my GPS ground speed and a hundred and – so, I had a – I ended up with a headwind component of 20 knots.

All right.  And at higher levels - - - ? --- The wind was stronger.

- - - had you experienced more or less headwind component? --- The – the headwind component was a lot stronger, higher.

All right.  And you said you were about 500, can you – 500 feet above ground level? --- Yeah.

All right.  And did you in fact vary from that? --- Occasionally, yes.  It was a little bit bumpy and down low in the heat and, yes, we did bump around a little bit.

All right.  And so what was the sort of the range of heights you were at? --- Well, it’s difficult to say because there was nothing to look at over the Nullarbor Plain, there are only very low, small bunches of salt bush and when I’ve been walking around in that area, they only come up to about your thigh and there’s – there was no poles, there are no tracks, there are no buildings, there are no anything.

No trees? --- No trees, Nullarbor, yeah.

Yes? --- There are no trees.  I have no radar altimeter.  I would suggest I was ranging around 400 to 500 feet above ground.

All right.  And did you more or less maintain or attempt to maintain a sort of a constant speed or were you sort of going up and down or - - - ? --- No, I was – I was trying to maintain a constant speed.

And height? --- Well, to a degree but, you know, there’s nothing – within – within 100 feet.

…

But you weren’t continuing to experiment with heights and winds? --- No, I wasn’t, no, I - - -

You had sort of – had found the - - - ? --- I gave up and it was too - - -

You had found the – what you thought was the optimal - - -? --- Yeah.

- - - level and off you went? --- At 100 knots I was going to run out of fuel on the longer leg.

All right.  You were going to be all right to Forrest? --- Forrest, yeah, easily.

All right.  Did you fly the whole way or did you share the flying between Nullarbor and Forrest? --- No, at – on – on a couple of occasions, actually, Miss Scott flew the aeroplane.

All right.  And did - - -? --- From the other seat, it’s a dual air force training aircraft, everything’s dual, and Miss Scott has an endorsement on it and I was having a rest and she flew the aeroplane.

All right.  And did she sort of maintain the same speed - - -? --- Yeah.  We - - -

- - - direction? - - -? --- Yeah.

-   - - height?  Could you talk to her in the cockpit? --- Sure.

…

All right.  And was there much conversation? --- Mm, I was talking to her about the – about – mainly about her experience and what – what was the difference to her aeroplane or her father’s aeroplane to mine.  I was talking to Glen a lot on the radio, what – what are you expecting, where are you, because he asked me before we left that I should formate on his aeroplane to make sure the undercarriage was properly retracted and I talked to him a lot and said what GPS - - -

When were you going to formate with his aircraft? --- When he overtook me.

All right.  Did that take place at some place along the trip from Nullarbor to Forrest?  Do you remember, was it sort of at the beginning or the end or - - -? --- Oh, it was closer.  Closer to Nullarbor.

All right.  When you say you formated you - - -? --- Well he – he said that we – we were discussing – well, we were talking to each other, telling each other what GPS distance we had so that we knew where – where we were in relation to each other.  And when I – he was about two miles behind me he said he could see me.  So then, asked me to climb up to his altitude and have a look.

Did you do that? --- I did.  We formated on – and I flew underneath his aircraft and looked at all three wheels and looked at the covers.  And I said: yes, everything looks retracted and everything looks smooth and everything’s fitting properly.  I then descended back to 500 feet and he accelerated away and I didn’t see him again - -

…

Right.  Anyway, so just coming back, you’re now flying, you’ve formated with the Mooney, it has now gone off ahead of you, you have gone back to 500 feet, more or less.  What happens now? --- And then we just continue the flight to - - -

To Forrest? --- To Forrest.”

(Transcript, pp 24-28)

23.     The applicant said that he refuelled the aircraft at Forrest.  Asked whether he recalled what time that was, he replied that he did not take any notice at the time but that he now knew that time to be about 12.45pm.  The applicant was then referred to a document (Exhibit A3), being Forrest Airport Delivery Receipt No 04725, dated 31 July 2002, which indicates that the aircraft (VH-AOF), which had arrived from Nullarbor and was flying to Kalgoorlie, commenced refuelling at 12.45pm, took on 68 litres of “Avgas”, and finished refuelling at 12.50pm.  The applicant said that they did not take off immediately but that he spent some time at Forrest completing the paperwork regarding the fuel, having a drink, going to the toilet, having a snack, discussing the flight with Mr Caple, and so on, before departing Forrest.  He estimated that they remained on the ground at Forrest for 30-40 minutes before departing for Kalgoorlie at approximately 1.25pm.

24.     The applicant said that he (with Ms Scott) took off in the aircraft before Mr Caple (with Ms Hickey) took off in the Mooney aircraft.  He said that after take-off, he headed west towards Kalgoorlie, following the railway line, flying about half a kilometre to the north of the railway line at a height of 400-500 feet.

25.     The applicant confirmed that along the southern side of the railway line (about 100-200 metres to the south) there are telecommunications towers which vary in height from 50 metres to 90 metres and which are between 20 kilometres and 40 kilometres apart.  He was referred to an aeronautical chart (which was in evidence – Exhibit A1) of the route of the railway line between Kalgoorlie-Boulder and Nullarbor on which these towers, and their heights, are indicated.

26.     The applicant said that the distance of the Forrest-Kalgoorlie leg of the flight was 345 nautical miles and that, as he only had enough fuel for 4 hours of flying, he needed to maintain a speed of at least 100 knots.  He said that it was his normal practice “to allow enough fuel for the trip plus a 45 minutes reserve” and that, although he wanted to follow that practice on this particular trip, he would be unable to do so as he would only have about 30 minutes of reserve fuel (the estimated duration of the flight being about 3½ hours at a speed of 100 knots).  He said, however, that as he got closer to Kalgoorlie the headwinds diminished and he was able to achieve greater airspeed so he climbed to 2500 feet.  He added that he had in fact climbed to 2500 feet, when he was about halfway between Forrest and Kalgoorlie, in order to fly close to the Mooney aircraft so that he could check whether its wheels had properly retracted, and that he then maintained that height for the remainder of the flight to Kalgoorlie.  He said that his “guesstimate” of the duration of the Forrest-Kalgoorlie flight was 3-3½ hours and that he could not remember how much fuel he had in reserve upon arrival at Kalgoorlie.

27.     The applicant was asked whether he had seen a train during the Forrest-Kalgoorlie flight.  His evidence was as follows:

“All right.  And you say you had gone along this 4 to 500 feet and then you had gone up and the conditions improved and you had seen the Mooney and eventually got to Kalgoorlie.  All right.  At any point along the railway line, did you in fact see a train? --- Yes, I remember seeing one train and it was stationary on a side loop and the loop was to the northern side of the railway line.

Do you remember whether it was stationary or moving? --- It was stationary on the loop.

All right.  Do you remember anything else about the train? --- No.  I don’t even remember seeing which way it was facing.

Do you remember what height you were when you went past the train? --- I didn’t deviate.  It stayed the same.

Which was what? --- 4 or 500 feet.

Right.  And what about distance from the rail track? --- That was still the same.

So you still, I think we came up with a couple of hundred metres, didn’t we? --- Half a K.

Half a kilometre north of the track.  Is that right? --- Well, the track – the spur line was off to the north.  It was only just as wide as this room.

So you were half a kilometre from the main track, if you like, and this spur came off to the north? --- Yeah, the spur run.

Did you see any moving trains during this trip? --- No, I don’t recall seeing a moving train at all.

All right.  Did you go down at any stage to look at trains or look for trains? --- No.”

(Transcript, pp 40-41)

28.     The applicant was asked to describe the external appearance of the aircraft.  He produced a colour photograph, which he tendered in evidence (Exhibit A4), which showed that the top half and the tail are white, the bottom half and the tops of the wings are orange, while the bottom is dark grey.  He said that, to his knowledge, there are five CT-4A aircraft in Western Australia and they are all painted in the same colours.

29.     The applicant’s examination-in-chief concluded as follows:

“All right.  I’m just going to ask you a couple of things.  It has been suggested firstly that you flew low over the Nullarbor Motel, what do you say to that? --- Incorrect, I didn’t fly over the motel at all.

It has been suggested that you flew at a height of less than 500 feet between Nullarbor and Forrest? --- Mm.

What do you say to that? --- Possibly.

All right.  And what was the minimum height you say you flew at in that leg? --- I would suggest 400.

And what was the reason for that? --- Because of very strong headwind components higher.

All right.  Now, it has been suggested that between Forrest and Kalgoorlie you flew at a height of less than 500 feet, what do you say to that? --- I would suggest so, yes.

All right. And what do you say would be the minimum height you flew at on that leg? --- Again, approximately 400 feet.

All right.  And what was the reason for that? --- Again, horrendous headwinds.

All right.  It has also been suggested that I think on two occasions between Forrest and Kalgoorlie you, to put it colloquially, buzzed a train.  In other words, flew much lower than 500 feet at or towards a train, is that right? --- That’s incorrect.

All right.  Was there ever any suggestion made to you by the passenger in the plane, Ms Scott, on either of those legs that you had flown too low or - - -? --- No, she didn’t mention anything at all.

All right.  Did she ever say or suggest that she didn’t want to fly with you or wanted to swap? --- No, we had that opportunity before but she didn’t want to.

All right.  Did she, in your presence, make any complaint to any other person about the manner of your flying on either the Nullarbor to Forrest or Forrest to Kalgoorlie leg? --- Not until this business came up.

All right.  And she in fact had the opportunity to discuss those matters both with her friend, I suppose, Ms Hickey? --- And Glen.

And with Mr Caple? --- Yeah.

And - - -? --- And with me.

- - - no suggestion was ever made at any time - - -? --- No.

- - - in your presence to any of those people? --- Both girls were happy.

And she in fact flew with you on two legs and on the third occasion Ms Hickey, on the Kalgoorlie to Jandakot leg, flew with you - - -? --- Yeah.

- - - without any suggestion of concern or - - -? --- No, no.  No, and again, I let Ms Hickey fly the aeroplane because she’d never flown one before, so I let her have a bit of a practice at that, she was happy.

And would you otherwise, other than the adverse wind conditions, describe this as a relatively uneventful trip?  I mean, it went according to plan as it turns out? --- Yeah, it went according to plan and it was – apart from the headwind component it was a normal trip, yes.”

(Transcript, pp 44-46)

30.     In cross-examination the applicant denied that, immediately after taking off in the aircraft from Nullarbor on 31 July 2002, he flew over the Nullarbor Motel, or any buildings, and he reiterated that after departing the whale-watching area he was flying at a height of about 1,000 feet above ground level and that he maintained that height when he then tracked towards Forrest.  Later in his evidence, however, the applicant said that he and Mr Caple (who was flying the Mooney aircraft) initially planned that they would both fly at 2,500 feet and that he “probably climbed to that height passing over Nullarbor or setting course from Nullarbor” (Transcript, p 81).

31.     The applicant said that, while flying at 1,000 feet above ground level, he encountered headwinds which “would have been at least 25 knots”, an estimate which was based on the fact that he was “only doing 95 knots ground speed”.  He said that he then contacted Mr Caple in the Mooney aircraft and asked him what the conditions were like at his flying height of 2,500 feet.  He then said he was not sure whether he climbed to 2,500 feet to check the headwind speed, or whether Mr Caple checked it, but that he knew that one of them had checked it.  He said that he remembered ascertaining that, at 2,500 feet, there was a headwind of 38 knots from a direction of 320 degrees.  He later said that the headwind speed at 500 feet was 20-25 knots, and, for that reason, he decided to fly at 400-500 feet in order to conserve fuel.

32.     The applicant said that, on the Forrest-Kalgoorlie leg of the return flight, he maintained a height of 400-500 feet until about “probably two-thirds of the way … about 100 miles out of Kalgoorlie” when he climbed to 2,500 feet because the headwinds were abating, thereby increasing his ground speed, and he maintained that height for the remainder of that leg of the flight.

33.     The applicant was questioned about seeing a train during his flight between Forrest and Kalgoorlie.  He said that he could remember seeing a stationary train but that he could not remember seeing a moving train.  He added:

“… I just don’t recollect it.”

(Transcript, p 134)

34.     He denied turning his landing lights on at any time during that flight.  His cross-examination continued:

“Are you aware that some pilots in the past have approached trains in the Nullarbor and turned on their landing lights to try and give the impression to a train driver that the train driver himself is approaching another train? --- I’ve never heard of that, no.

And I put it to you that that is exactly what you were doing on this occasion.  You turned the landing lights on to give some – three or four kilometres away from the train that was moving, to give the impression to the train driver that he was possibly approaching another train on the railway track? --- No.  No, that didn’t happen.

The fact is, the only reason you were at low level after Forrest was because you wanted to fly near a moving train? --- That is incorrect.”

(Transcript, p 135)

The Evidence of Andrew Searle

35.     An Outline of Evidence signed by Mr Searle, dated 31 July 2003, together with his Curriculum Vitae, were tendered in evidence (Exhibit A5).  The contents of that Outline of Evidence are as follows:

“1At all material times I hold various pilot licences (together with endorsements) as per the attached schedule.

2I have accumulated over 5,600 flying hours including over 3,300 hrs in military flying, 2,000 hrs in airline flying and 200 hrs general aviation flying.

3One of my current businesses, Adventure Flying Western Australia, includes extensive flying in outback Australia.  In addition I have recently flown my DHC-1 Chipmunk across the Nullarbor Plain several times.  Further, I have in the course of my military flying career made a vast number of flights in and around outback Australia.

4In my opinion, flying small planes in outback areas requires the pilot to be pro-active in minimising any negative fuel trend.

5It would be a poor decision by a pilot to risk running out of fuel rather than limit the effect of headwind in the traditional means, that is, by flying closer to the ground where the friction effect normally reduces wind speed.

6It is appropriate for a pilot in command to take a conservative view in regard to weather forecast and this is more so in outback or remote areas and in particular in regard to headwind and the limited refuelling opportunities available in outback Australia.

7It has also been my experience that weather forecasts for outback locations are often inaccurate as to the timing and nature of weather forecast.  In particular wind speed, direction and changes to speed and direction are at best an estimate which may not accord with the actual conditions being experienced by a pilot in the outback at any particular time or place.”

36.     In his oral evidence Mr Searle verified the contents of the above Outline of Evidence.  According to his Curriculum Vitae, he was a pilot in the Royal Australian Air Force (“RAAF”) from 1984 to 1995, and from 1995 to 2002 he was employed as a pilot by Cathay Pacific Airways and in that capacity he flew Boeing 747 and Airbus aircraft.  His CASA licence endorsements include Class 1 Multi-Engine Command Instrument Rating, low level aerobatics, formation flying, and low flying – 100 feet AGL, and his RAAF special flying qualifications included Central Flying School Instructor (Category B), and Instrument Rating Examiner.  He presently operates his own aviation consulting business.

37.     Mr Searle said that he had experience flying in outback Australia in both small and large aircraft.  He said that he had flown across the Nullarbor Plain in both an easterly and a westerly direction, was familiar with the Kalgoorlie-Forrest route, and had landed at Nullarbor.  As regards the Forrest-Kalgoorlie leg of such a flight, he said that the route normally followed is along the railway line.  He said that that route involved “negligible extra track miles” than the most direct route, but, in his opinion, that factor was outweighed by “the safety aspects of staying near the railway line”.  Another safety advantage of following that route, to which he referred, was the fact that most of the telecommunications towers located near the railway line had their own airstrip.

38.     As regards official weather forecasts for outback areas, Mr Searle said that, in his experience, actual wind direction could vary by up to 20 degrees from the predicted direction, and that wind speed was “probably even less predictable”.  He said that wind speed is generally lower closer to the ground by reason of the “friction effect” of proximity to the land surface, and that, accordingly, it would be more advantageous, from a fuel-saving standpoint, to fly a CT-4A aircraft (which is limited to an altitude of 10,000 feet) at low altitude when there are strong headwinds at higher altitudes.

39.     Mr Searle confirmed that he is familiar with the CT-4A model aircraft, and added that he had learned to fly on that model.  He described the visibility from the left-hand (pilot’s) seat, both forward and above, as “exceptional”, while the visibility on the left side is “excellent, except for the wing”, but he added that “(y)ou can see ahead of the wing”.

40.     Mr Searle said that he had flown with the applicant and he described the applicant as having “good hands” and being “pretty switched on” but added that he has found him to be a cautious pilot and more conservative in his flying practices than he expected of a person with his experience.  He said that the applicant seems to know the flying rules and regulations better than the average private pilot, and that he had never noticed the applicant break the rules.

The Evidence of the Witnesses called by CASA

Kaitlin Scott

41.     A signed statement of Ms Scott, dated 16 October 2002, is included in the T documents (pp 62-76).  The relevant contents of that statement are as follows:

“1My full name is Kaitlin Bernadette SCOTT.  I am 18 years old and my date of birth is 11 October 1984.

2I am the holder of a Private Pilot (Aeroplane) Licence (PPL), Aviation Reference Number 571696.

3I am endorsed to fly single engine aircraft less than 5700kg Maximum Take Off Weight (MTOW).  I am also endorsed to fly aircraft with retractable undercarriage.

4I obtained my PPL on 22 March 2002 and I have accumulated approximately 224 hours of Total Flight Time.

[Ms Scott’s statement then sets out the circumstances regarding a flight by her and Ebony Hickey in a Mooney aircraft from Jandakot to Nullarbor on 25-26 July 2002, and the landing of that aircraft at Nullarbor in the early evening of 26 July 2002, resulting in damage to that aircraft.  The statement then refers to Ms Scott’s contacting the Royal Aero Club of Western Australia (“RACWA”) (the owner of the Mooney aircraft) about the accident, and continues:]

30On the 30 July 2002 Glen CAPLE, the Chief Engineer at RACWA, arrived with Ian BYERS in a CT4 aircraft, Australian registration VH-AOF at about 12.00 midday.  I know Glen from the club but I had never met Ian Byers.

31Glen went to inspect the damaged Mooney aircraft which had been moved from its final landing position to the aircraft parking area at the rear of the motel the previous day by the hotel owner.  Glen conducted repairs on VH-MZS while Ebony and I observed.

32As Glen inspected the aircraft, Ian began to rivet the left wing.  As Glen continued with his inspection and assessment of the damage, Ebony and I assisted as we could.

33Later that night we all ate at the Nullarbor Motel and later went over to the bar area and had a few drinks.  During the course of the evening we discussed and finalised plans for the return trip to Kalgoorlie.

34It was decided that Ebony would fly with Glen in the repaired Mooney aircraft and I would fly with Ian in his CT4.  There would be a scheduled stop at Forrest in order to refuel and we would then continue on to Kalgoorlie where we would stay overnight.

35Glen left us and retired first, Ebony and I then retired to our room a short time later at around 10.30pm and we left Ian at the bar still drinking.

36The next morning Ebony and I awoke at sunrise and then woke Glen and Ian at 7.00am.  We had breakfast at the motel and after breakfast Glen and Ian attended to the Mooney in order to complete repairs and test fly the aircraft.

37Ebony and I collected the weather forecast for the flight to Kalgoorlie and at around midday we prepared to depart Nullarbor.  As Ebony and I were putting our baggage into the Mooney Ian came up to me and told me to pay for the fuel that he had put in the Mooney.

38I went back to the motel reception as I had already paid for our accommodation, and paid for the fuel.  The fuel cost for the Mooney was $100.00.  I paid the bill with my credit card.

39As I returned to the aircraft parking area I noticed that Glen was getting in to the Mooney.  Ian then told me to get in the CT4.  I sat in the right seat and Ian sat in the left seat of the aircraft.

40Ian then taxied towards the bitumen road that stretches between the old and new motel, as I looked behind I saw the Mooney doing its run ups and taxi for a different runway.

41As Ian approached the bitumen road he increased engine power and we took off using the bitumen road.  At this point the Mooney was still on the ground behind us.  We left Nullarbor at about 12.30pm.

42As we took off Ian flew close and level to the ground.  I estimate that we were flying at 10ft AGL at this point.  Approximately 16 metres away from the new motel Ian turned steeply to the left in a wing over manoeuvre buzzing the motel.  I estimate that he was flying at about 200ft AGL at this point.  At this point I was concerned and wondered why he had flown so low over the motel.

43Climbing to 1000ft on the altimeter Ian flew the scenic tour over the whales, which is in a south east direction from the motel over the coast.  Tracking back to Nullarbor Ian descended to about 500ft AGL while he again buzzed the Nullarbor Motel.

44Ian then continued to fly at about 100 to 200ft AGL for the entire flight to Forrest.  The elevation at Nullarbor is approximately 200ft, the aircraft altimeter at the time was showing 300 to 400ft of elevation.

45During the flight to Forrest Ian flew quite close through patches of trees.  I estimate that he was flying at about 100 to 200ft AGL and that the trees were 20 to 40ft in height.

46On approach to Forrest Ian landed on runway 18 and I noticed that the Mooney had already landed and was being refuelled.  We landed at Forrest at 2.00pm local time.  Ian refuelled the CT4, and we left at about 2.30pm.

47We were first to take off and as Ian took off he climbed to a height of 800ft as indicated by the altimeter.  Forrest has an elevation of approximately 500ft.

48Ian then told me that he was going to follow the railway line to Kalgoorlie.  I then heard Ian radio Glen on frequency 123.45 and when Glen responded to his call, I heard Ian tell Glen that he was going to follow the railway line to Kalgoorlie.

49Ian followed the railway line for about an hour.  During this time we flew from 550 to 800ft as indicated by the aircraft altimeter.

50Whilst flying above the railway line Ian had to swerve several towers which appeared on the left side of the aircraft.  These towers would have been 100-200ft in height.

51As we continued towards Kalgoorlie Ian spotted a train ahead and he said, ‘I’m going to buzz the train.’  I took that to mean that Ian was going to fly over the train at low level.

52I then saw Ian turn on the aircraft landing light and head directly towards the train.  As Ian flew towards the train we began flying lower as he got closer to the train and he would have been about 50ft AGL when he realised that it was stationary on a sidetrack, and decided to abort.

53I recall Ian saying something like, ‘it’s a dead train.’  I took that to mean that it had no one  on board or in it.

54Ian continued flying at about 50ft AGL and said ‘keep a look out behind the aircraft for trains travelling east to west, we don’t want them sneaking up behind us and hitting the aircraft.’  At this point I was extremely concerned for my safety.

55I didn’t say anything to Ian because I assumed he had some sort of endorsement that allowed him to fly low, although I knew that he wouldn’t have been allowed to buzz trains.

56Ian continued flying at about 50ft AGL for about 20 minutes.  I was feeling very uncomfortable at this stage and also intimidated by the situation.  As we continued flying low Ian spotted another train travelling west to east.

57   I saw Ian turn on the aircraft landing light again and then head directly towards the train.  As Ian approached the train he flew head on at about 50ft AGL and when only metres away from the train veered to the right side the (sic) train, just missing the cabin.

58Ian flew along side the train for a short time at approximately 50ft AGL.  I had no idea that Ian was going to buzz the train, as he did not say anything to me nor did he indicate that he was going to do anything like that.  If I knew what Ian was going to do I would have told him that I was not happy or comfortable with him doing so.  I considered what Ian did to be very dangerous and frightening.

59As we flew towards the train I could see the train driver was wearing a blue cap and possibly a blue uniform, that’s how close we flew to the train.  The train appeared to be grey and brown in colour and we would have been flying slightly higher than the train height, although no (sic) much higher.

60As Ian broke away from the train he began to climb in altitude in order to catch up with the Mooney.  As we neared the Mooney, which was flying at 1500ft AGL Ian flew directly underneath the Mooney.  I estimate that we were approximately 300 metres from the Mooney.

61Ian then told me that he wanted to check the gear doors and general condition underneath the Mooney aircraft.  At this point Ian began to climb to 1500ft AGL and flew about 6 metres below the Mooney aircraft.  We flew in this position for about 5 minutes.

62I heard Ian speak to Glen over the radio telling Glen to lead in formation.  Ian formated off to the right at approximately 2000 to 2500ft as indicated on the aircraft altimeter.

63Ian flew in this formated position for about ten (10) to fifteen (15) minutes before separating from the Mooney and maintaining 2000-2500ft as indicated on the altimeter.

64On approach to Kalgoorlie Ian descended to circuit height, 1500ft AGL.  Prior to Ian entering the circuit he notified Kalgoorlie MBZ of his position and height in the required manner.

65We landed at about 4.00pm local time about six (6) minutes after the Mooney.  After landing we taxied in and refuelled the aircraft and then tied down the CT4.

66Ebony and I then caught a taxi to the Australia Hotel.  At the hotel I rang my father, Peter SCOTT, and told him what had happened.  I told my father that we had flown really low from Nullarbor to Kalgoorlie.

67The following morning Glen and Ian picked us up at the hotel by taxi and we then headed off to Kalgoorlie Airport.  Ebony and I had discussed who was going to fly back in the CT4 and Ebony had told me that she wanted to fly back in the Ian’s (sic)  CT4 so she flew back with Ian and I flew back to Jandakot with Glen in the Mooney.

68The flight from Kalgoorlie back to Jandakot was uneventful.  We arrived at Jandakot on 1 August 2002 at 12.00 midday local time and I then went to the aero club in order to speak with Roger WEEKS.  Roger conducted a debrief with us one at a time regarding the last light incident at Nullarbor.

69About 4 days later I spoke with Trent ROBINSON and told him that Ian BYERS had flown really low and buzzed a train during the return trip to Kalgoorlie.

70I brought the subject up with Trent because I wasn’t sure whether Ian had an endorsement to fly that low and also because Ian had scared me during the low flying incident.

71Sometime after speaking to Trent I was approached by Ian BYERS.  Ian approached me whilst I was at the aero club in a lecture room.  Ian said to me, ‘what have you said to CASA.  I need to know so we can get our story straight’.  I told Ian I hadn’t spoken to anyone.

72The next day I was approached by Ian again whilst I was in the aero club lecture room.  This time Ian wanted my phone number and Ebony’s phone number he sia (sic) that he wanted to be able to contact us if CASA contacted him.  I gave him my phone number.

73About a month later Ian approached me again saying, ‘I’ve heard CASA are coming over what are you going to tell them.  Tell them that you were happy to come home and that I came to collect you.’

74In order to avoid a confrontation I agreed with Ian.  Ian made me feel very uncomfortable during his approaches.  During one conversation he told me that I was making a mistake talking to CASA and he gave me the impression that he wanted me to lie to CASA about the incident.

…”

42.     In her oral evidence-in-chief, Ms Scott explained that the time of departure from Nullarbor, referred to in paragraph 41 of her statement, was 12.30pm Central Standard Time (Nullarbor being located in South Australia), equivalent to 11.00am Western Standard Time.  She also explained that the times of arrival at, and departure from, Forrest, referred to in paragraph 46 of her statement – namely, 2.00pm and 2.30pm, respectively - were also Central Standard Time (equivalent to 12.30pm and 1.00pm, respectively, Western Standard Time) notwithstanding that Forrest is located in Western Australia.  Having clarified those matters, Ms Scott verified the contents of her statement

43.     In relation to the contents of paragraph 38 of her statement, Ms Scott was referred to a fax dated 26 February 2003 from Nullarbor Hotel Motel which referred to an enclosed copy of her “EFTPOS slip for AVGAS purchased on 31.07.02 for the amount of $95.60”.  Ms Scott confirmed that that “EFTPOS slip” related to the credit card payment by her for the fuel for the Mooney aircraft prior to departing Nullarbor on 31 July 2002.  She also confirmed that the time specified on the “EFTPOS slip”, namely, “12.22”, accorded with her recollection of the time at which she paid for the fuel on 31 July 2002.  She said that they departed Nullarbor “shortly after” she had paid for the fuel.  A copy of the abovementioned fax, with a copy of the “EFTPOS slip” superimposed thereon, was tendered in evidence (Exhibit R1).

44.     Ms Scott then described the applicant’s take-off from Nullarbor in the aircraft (in which she occupied the passenger seat) as follows:

“Mr Byers took off.  We were low over the ground.  We stayed low, gaining air speed.  He retracted his flaps and then pulled up close to the Nullarbor Motel and did a steep turn over the motel, heading out down south towards the ocean.

Do you – can you estimate the height the aircraft was when it commenced its turn, was it to the left? --- Left turn, 200/300 feet above ground level.

You said earlier, he’s used the words, ‘holding the aircraft down’.  Was the aircraft held down longer that what you would have expected it to have been held down? --- When I say held down he’d taken off the ground ---

Yes? --- - - - and held it to gain air speed.

Yes? --- It was, yes, an exceptional period of time holding that aircraft like that.”

(Transcript, p 186)

45.     Ms Scott was referred to paragraph 43 of her statement in which she said that the applicant, when “tracking back to Nullarbor” after the whale-watching excursion, “descended to about 500ft AGL while he again buzzed the Nullarbor Motel”.  Her evidence continued:

When you use the word ‘buzzed’ what are – what were you referring to there? --- Flying low over the motel, buzz, giving the people on the ground a thrill.

But was it below the 500 feet you refer to in your statement? --- Yes.

Well, what height would - - - ? --- On – on the altimeter he would have been 500 feet.

And what - - -? --- And Nullarbor’s 200 feet - - -

Yes? --- - - - elevation, I believe.

Yes.  So, that gives a 300 feet above the ground? --- Yes.

Did that give cause for any concern to you at that time? --- Yes.

And so, why didn’t you say anything to Mr Byers about that at that time? --- Mr Byers had me on cold mike in the aircraft, meaning that you cannot talk freely between the pilots unless you push an intercom switch.  I felt uncomfortable at that stage that he’d cold miked me and was not willing to press a button to talk to him, it was on a throttle.  I wasn’t willing to do that.”

(Transcript, p 187)

46.     Ms Scott said that, while cruising between Nullarbor and Forrest, the aircraft maintained an altitude of “500 feet or below, above the ground”.She confirmed that they arrived at Forrest at 12.30pm (WST) and, after refuelling, departed for Kalgoorlie 20-30 minutes later.

47.     Ms Scott said that, after departing Forrest in the aircraft, they “headed towards the train track to follow that into Kalgoorlie”.  Asked at what height the aircraft was, she said that it was 300-500 feet above the ground.  Asked whether she recalled any communication during that flight between the applicant and Mr Caple (in the Mooney aircraft) about wind strengths and headwind components, she responded”

“No.  There was no talk about that.”

(Transcript, p 192).

48.     Ms Scott said that the aircraft flew “directly over the top” of the railway line.  As regards paragraph 50 of her statement in which she said that the applicant “had to swerve several towers which appeared on the left side of the aircraft”, Ms Scott said that the towers were located south of the railway line, about “a length or three quarters of a length [of a basketball court] away”.  She said that the aircraft was flying at the same height as the towers.  Asked why she referred in her statement to the applicant “swerving”, she responded:

“From my perspective in the aircraft, it was as though every time we went past a tower, the left wing was dipped.”

Asked to what degree the wing was dipped, she responded:

“From the horizontal, an angle of 10 degrees, maybe.  It wasn’t a huge, big swerve.  I simply used that (sic) as that was the feeling I got every time we went past a tower.  It was just, like, dipped towards the tower.”

(Transcript, p 193)

49.     As regards the reference to the stationary train in paragraphs 51-53 of her statement, Ms Scott said that that incident occurred after approximately 1½ hours of flying from Forrest, although she added that she “wasn’t taking note of the time”.  She said that the stationary train was “possibly one, two nautical miles” ahead of them when it was first observed, and that at that time the aircraft was flying over the railway line 200-300 feet above ground level.

50.     Ms Scott then gave the following evidence regarding an incident involving a moving train:

“Now, your statement describes what happens next and I won’t ask you questions about that but in terms of the distance between passing the stationary train and then observing a moving train, can you estimate how much time had elapsed between those two events? --- Approximately 20 minutes.

In terms of the railway line, do you know how many tracks there are? --- No.

So can you describe what happened – well, firstly, how far was the train when you saw it from the aircraft? --- Again I can’t – I can’t estimate how far away it was.

And what height were you at, was the aircraft at when you did - - - ? --- Approximately 50 to 100 feet.

And so what happened then? --- We flew – for that train, we were directly over the railway line at that time.  Mr Byers again turned on his landing light.  Went straight for the train and then we veered off to the right or up north of the train and flew alongside it.

And what happened after that? --- After that Mr Byers regained some height.  We continued across, over the railway line.”

(Transcript, p 196).  Ms Scott described the moving train as being “of a grey and brown colour”.  Asked how she felt, in terms of her own safety, after the aircraft passed the moving train, she said that she was “extremely frightened”.

51.     Ms Scott was referred to a Telstra MobileNet Account dated 4 August 2002 (Exhibit R2).  She confirmed that that account related to the mobile telephone which she had in her possession for the duration of the relevant journey.  She also confirmed that that account indicated that she made various calls from Kalgoorlie on 31 July 2002, including calls at 4.27pm, 5.27pm and 6.33pm.  She said that the 4.27pm call was to a hotel in Kalgoorlie, the 5.27pm call was to her home in Perth when she spoke to her mother, and the 6.33pm call was also to her home in Perth when, on this occasion, she spoke to her father.  She said that she then told her father “of the events on the flight from Nullarbor through to Kalgoorlie”.

52.     Ms Scott said that she travelled back to Jandakot on the next day (1 August 2002) in the Mooney aircraft with Mr Caple.  Asked why she travelled in the Mooney aircraft rather than in the aircraft with the applicant, Ms Scott responded:

“I asked Ebony [Hickey] to go back in the CT4 (sic) aircraft.  I wasn’t willing to fly back to Jandakot with Mr Byers.”

(Transcript, p 200).

53.Ms Scott’s examination-in-chief concluded as follows:

“So after 31 July, you ultimately returned to Perth.  How long after that did you see Mr Byers?  Or sorry, what was your next contact with Mr Byers? --- I don’t recall how long it would be after the event took place or how long it was after we got back to Perth.

But did you approach CASA directly about what had happened on the flight? --- No.  I found out that what was happening through Mr Byers approaching myself and Ebony, saying that CASA knows.

Did you know who did report what occurred to CASA? --- No.

And so in relation to your first contact with Mr Byers, when was that and how did it occur? --- Mr Byers wanted to speak to both myself and Ebony Hickey, who was in Nullarbor with – we were in the Mooney together in Nullarbor.  And we went through the kitchen area of the Royal Aero Club.  We spoke there.

So you were in the Royal Aero Club at that time for your further training? --- Yes.

And so Mr Byers came into the, what, the kitchen you say? --- Yeah.  There is a side area and lecture rooms there.

And what happened then? --- He spoke to myself and Ebony, saying that CASA knows or has heard that I’ve done this.

Can you try and say what the exact words were, if you can.  I know it is going back some time? --- I don’t recall what his exact words were.  I recall that he told us that CASA somehow found out about it, that we needed to get our stories straight and that we weren’t at 50 but  at 5000 (sic) feet.

And do you recall what you may have said? --- At that stage, again me – myself and Ebony were intimidated.  We didn’t say anything.

…

And so after that occasion, did you speak to Mr Byers again about the events of 31 July? --- We would see Mr Byers around the Royal Aero Club.  Occasionally we would stand and chat.

And did these discussions relate to anything that happened on 31 July or CASA’s investigation of them? --- Just reiterating the fact that we’ve got to get our stories straight, we’ve got to have the same story.

…”

(Transcript, pp 200-201)

54.     In cross-examination, Ms Scott was first questioned about her recollection of the time at which the aircraft arrived at, and departed from, Forrest on 31 July 2002.  She said that they arrived at 12.30pm (WST) and she agreed that they refuelled immediately after landing.  When it was pointed out to her that refuelling in fact commenced at 12.45pm (see Exhibit A3), she accepted that and acknowledged that she could be wrong about the time of arrival at Forrest.  She agreed that “at least” half an hour elapsed after refuelling before they took off from Forrest, so that it would have been “at least” 1.20pm (WST) when they departed Forrest.

55.     As regards the altitude at which the aircraft was flown by the applicant from Nullarbor to Forrest on 31 July 2002, Ms Scott initially agreed that it was 500 feet above ground level, but then said:

“We were – 500 feet on the altimeter”.

(Transcript, p 266).  She confirmed that, as a pilot, she was aware of the difference between height above ground level and height above sea level, and that at Nullarbor she set the altimeter of the aircraft at 200 feet because the elevation of Nullarbor is 200 feet.  She said that during the flight from Nullarbor to Forrest, the aircraft was “between 600 feet on the altimeter and 400 feet on the altimeter at different stages of the flight”.  She denied that the aircraft went higher than that at any stage of that flight, and she specifically denied that the aircraft ascended to 2500 feet to check the undercarriage of the Mooney aircraft during the Nullarbor-Forrest flight.

56.     As regards paragraph 45 of her statement, Ms Scott acknowledged that the reference to “trees” was incorrect, and that the relevant vegetation is more accurately described as “shrubs”, “scrub”, “scrubby bush”, or “bushy scrub”.  She also said that the applicant flew “over” that vegetation (which she estimated to be up to 6-7 feet in height), and not “through” it as stated in her statement.

57.     Ms Scott agreed that, after taking off from Forrest, the applicant flew the aircraft slightly to the north of the railway line so that he could see the railway line from the left-hand seat.  She confirmed that, during that flight to Kalgoorlie, they saw two trains, the first of which was stationary and the second of which was moving.  As regards the time when they observed the stationary train, at first she agreed that it was about one hour after departing Forrest but she added that that “would be a guess”.  She then said that it “(w)ould have been between 45 minutes and an hour and a half into the flight”.  When it was put to her that it therefore could not have been before 2.00pm (WST), she responded that it could have been before 2.00pm, and added that she did not recall exactly how long into the flight they spotted that train.  She agreed that it was approximately 20 minutes later that they spotted the moving train.  She agreed that it could have been up to 1 hour and 50 minutes after departing Forrest when they observed the moving train.

58.     Ms Scott confirmed that the moving train was brown and grey in colour, and she said that she assumed that it was a freight train.  When it was put to her that the only train anywhere near the relevant area at the relevant time was orange and blue in colour, she reiterated that she saw a brown and grey train and said that she did not recall seeing an orange and blue train.

59.     Ms Scott said the applicant flew the aircraft above, and slightly to the north of, the train, about a wing length away from the train.  She confirmed that she could see the train, to the left of the aircraft, from the right-hand seat.  She said that they were very close to the train and that she saw 2 people in the cabin of the train and she recalled seeing a blue hat and a blue uniform.  Asked whether she saw an orange safety vest, she said that she did not recall seeing that.

60.     As regards the towers referred to in paragraph 50 of her statement, Ms Scott agreed that they are located south of the railway line but said that she did not know how far they are from the railway line.  She referred, however, to her earlier evidence in which she estimated that the distance was the length of a basketball court.  Asked how long a basketball court is, she estimated 9-10 metres.  When it was put to her that the length of a basketball court is 100 feet, she inquired:

“how many metres is that?”

(Transcript, p295)

61.     Ms Scott said that, after departing Forrest, the applicant flew the aircraft above the railway line at a height of 200-300 feet above ground level.  She said that, at different stages of the Forrest-Kalgoorlie flight, they were at different heights.  She said that when the applicant spotted the stationary train, he descended to 50-100 feet above ground level and maintained that height for the next 20 minutes until he “buzzed” the moving train.

62.     Ms Scott said that she did not know why the applicant had flown the aircraft low between Forrest and Kalgoorlie.  She said that she did not know what the wind conditions were on that day, and that she took no note of the speed or direction of the wind.

Kevin Free

63.     Mr Free said that he is presently a suburban railcar driver but that, as at 31 July 2002, he was employed by Pacific National Railway Company as an interstate train driver.  He confirmed that he had made a statement, dated 21 November 2002, in relation to this matter and he verified the contents of that statement.  The contents of Mr Free’s statement, which is included in the T documents (pp 104-105), are as follows:

“…

3On 31 July 2002 I was rostered on duty with Gordon JEAKES and I commenced work at 0645 hours, local time, on train number 3PM7 locomotive NR 14.  This train was to proceed eastward from Parkeston, Western Australia to COOK, South Australia.

4We departed Parkeston at 0845 hours that morning and we were scheduled to arrive at COOK at 1555 hours, local time.  Train Number 3PM7 is a freight train/trailer rail.

5At about 1.00pm that afternoon whilst travelling towards Nurina I heard Gordon say, ‘watch out’.  As I looked out the front cabin window I saw an aeroplane flying directly towards the train.

6The plane looked similar to an Air Force Trainer in that it had a bubble shaped canopy, a single engine and was predominately (sic) white in colour.

7I also noticed that the plane’s landing light was on and it appeared that there were two people on board.

8As the plane buzzed by it would have been no more than 100ft above the train.  The train cabin is about 25ft from the ground that means that I would estimate that the plane was flying about 100ft above ground level.

9On the day I was wearing a sky blue shirt with dark blue trousers and I also had an orange reflector safety vest on.”

64.     In his oral evidence-in-chief, Mr Free said that at the relevant time he was driving the train while sitting in the left-hand seat in the cabin, and Mr Jeakes, the “second driver”, was sitting in the right-hand seat.  He explained that, when he stated in paragraph 8 of his statement that the train cabin is about 25 feet from the ground, he was referring to the roof of the cabin.  He said that, on the journey in question, the wagons which the locomotive was pulling included 5-6 “double stackers” whose height exceeded that of the locomotive cabin.

65.     Mr Free said that the top speed of this locomotive is 115 kilometres per hour, and that, while crossing the Nullarbor Plain, it was customary for it to be travelling at top speed.  He agreed that, when travelling at top speed, the locomotive creates a “drag or wind effect”.

66.     As regards the incident referred to paragraphs 5 - 8 of his statement, Mr Free said that when he first saw the aeroplane, it was, at a “rough guess”, about 3 – 4 kilometres ahead of the train.  He said that he “kept an eye on it” and that it was “coming directly at [him]”.  He estimated that, when the aeroplane “veered off”, it was between 200 metres and 500 metres from the train.  He said that the aeroplane veered to the south of the train and then levelled off and flew on the south side of the train.  He estimated that the aeroplane was then “only between 50 and 100 metres” to the south of the train “flying just above” the access road.

67.     In cross-examination, Mr Free was questioned about the location of the train when he first saw the aeroplane approaching.  He said that he had taken over from Mr Jeakes as the driver of the train at Wilban, and the train was scheduled to pass the “Indian Pacific” passenger train which was waiting in a crossing loop at Nurina.  He said that he saw the aeroplane when the train was travelling between Wilban and Nurina but he could not recall whether this occurred to the west, or to the east, of Haig (which is the intermediate stop between Wilban and Nurina).  He said that his estimate of the time of this occurrence, stated in paragraph 5 of his statement – namely, “about 1.00pm” – was based on a log book which he kept at that time but which he had since lost, and was “reasonably accurate”.

68.     Mr Free said that the aeroplane came towards him and then veered off and seemed to level off, and he then lost sight of it.  He said that, when he lost sight of the aeroplane it was between 20 and 50 metres away from, and south of, the train.  He said that he asked Mr Jeakes whether the aeroplane was “clear of the double stackers”, and Mr Jeakes told him that it was.

69.     Mr Free confirmed that the colour of the locomotive was orange, with a blue stripe.

70.     In re-examination Mr Free said that the colour of the wagons was “bluish grey”.  He said that Pacific National locomotives had not, at that time, been repainted since they first came on line in 1995 or 1996, and he agreed that after 6 years of use locomotives “get a bit grotty” in appearance.

71.     Mr Free was asked why he had inquired of Mr Jeakes whether the aeroplane was clear of the double stacker wagons.  He said that he knew that the aeroplane was clear of the train but he was not sure whether it was clear of the air turbulence that the train – and especially the double stacker wagons – might have been creating.

Brett Mayger

72.     Mr Mayger confirmed that he had made a statement, dated 17 January 2003, in connection with this matter and that its contents are true and correct to the best of his knowledge.  The contents of Mr Mayger’s statement, which is included in the T documents (pp 108-109), are as follows:

“…

2I am a Charter Pilot employed by Whaleair and Warbirds Adventure Flights and I am the holder of a Commercial Pilot (Aeroplane) Licence No. 558942).

3On 31 July 2002 I was working for the Nullarbor Motel as a charter pilot operating their scenic whale watching tours.

4That morning I spoke with the pilot of a CT4 aircraft that was preparing to depart Nullarbor.  I don’t recall whether the CT4 pilot asked permission to use the sealed bitumen road for take off, however, I do remember that I did not give the pilot of the CT4 permission to take off from the sealed road.

5From memory had the CT4 pilot asked me whether he could to (sic) use the sealed road for take off, I would have directed him to the motel operator, as it is not up to me to give pilots permission to use the sealed road for take off.

6I recall that the CT4 departed at around midday, just before I was due to take off for a flight.  And I recall that the CT4 was carrying a female passenger that I knew as one of the pilots that had flown in to Nullarbor earlier that week in a Mooney aircraft.

7I watched the CT4 depart to the south, with the wind also blowing directly from the south.  And I then began to prepare for my flight leaving Nullarbor shortly afterwards.

8It is my understanding that the only aircraft authorised to use the sealed bitumen road for take off and landing are VH-PDG, VH-DFW and VH-NNB or any other aircraft owned by Whaleair and Warbirds Adventure Flights.

9The sealed bitumen road runs north/south in direction and has an orientation of 360 degrees and 180 degrees.

10The sealed road is about 4 to 5 metres wide and 1200 metres long with threshold markings at both ends and a broken white line down the middle.

11The road has buildings positioned on the northern end approximately 40 metres north of the threshold and there is a light post positioned at the southern end of the road approximately 50 metres from the threshold.”

73.     In his oral evidence Mr Mayger said that at the time the aircraft took off he was with the manager of the Nullarbor Motel, Terry Leeson, and he continued:

“… and I heard Terry say, ‘Oh, have a look at that’, and I turned around and watched and the aircraft was in quite a – quite a steep climb, I guess.  He was gaining altitude quite quickly and – and the aircraft had banked over to the left and it was heading out towards – what I believed to be heading out towards the head of the Bight.

…

And in terms of what you saw of the take-off, did you see any part of the ground run? --- I – yes.  I did see part of the ground run, yes.  I saw the aircraft coming down the runway and like only – only little bits of it.  I wasn’t watching it continuously.  The aircraft took off.  After the aircraft lifted off the runway it tended to maintain that altitude for a short while and then it took off into a fairly steep climb.

When you were referring to the aircraft banking left can you remember how high the aircraft was when it commenced its bank? – Well, as you know it’s very difficult to pick altitudes when you’re standing on the ground.  The aircraft was gaining altitude very quickly.  I would say 2 to 300 feet as an absolute minimum.

So you’re looking at the road from the southern end of it and so I take it from what you’re saying that this banking manoeuvre that you saw occurred prior to where you were standing near the end of the road? --- No, it didn’t.  No, it occurred further south.  The aircraft took off, as I said, pulled up into a steep climb.  It was continuing south and then it – and then it banked over and headed out towards  - towards the head of the Bight.  It would – I would say that it would have been probably – definitely south of the Eyre Highway.

So how far from the hotel would it have been when it commenced its bank? --- I – I honestly couldn’t say. …”

(Transcript, pp 240-241)

Peter Scott

74.     Mr Scott, the father of Kaitlin Scott, made a statement, dated 15 October 2002, which is included in the T documents (pp 90-95), and gave oral evidence.  It is not necessary, however, to set out the contents of his statement or his oral evidence in these reasons.

John Cramb

75.     Mr Cramb confirmed that he had made a statement, dated 31 March 2003, in connection with this matter.  The contents of Mr Cramb’s statement, which is included in the T documents (pp 110-112) and which he verified, are as follows:

“…

2I am the Regional Manager of the Climate and Consultancy Section at the Bureau of Meteorology, Western Australia.

3I have held this position for over 12 years and my duties include the interpreting and supplying of weather information to Commonwealth and State agencies as required.

4I hold the following qualifications: Bachelor of Science (Honours), Master of Science, Diploma of Meteorology.

5I have been informed that on 17 December 2002 the Bureau of Meteorology received a written request from CASA Flying Operations Inspector, Terry ROBINSON, for the Area 52, 62 and 61 weather forecasts for both the morning and afternoon of 31 July 2002.

6I have been informed that Bryan BOASE, Regional Aviation & Defence Manager, Western Australia, initially responded to that request on 17 December 2002 by supplying Terry ROBINSON with the material applicable to the Western Australian sectors and that Peter WEBB, Regional Aviation & Defence Manager, South Australia, responded on 18 December 2002 with the material applicable to the South Australian sector.

7The following is my assessment of the synoptic situation and en route meteorological conditions between Nullarbor, Forrest and Kalgoorlie for 31 July 2002 based on information held at the Bureau of Meteorology.  This includes a GMS5 satellite image taken at about 1.30pm Western Standard Time on 31 July 2002 (copy attached).

8The synoptic situation is that a weak ridge extended across southern Western Australia from the west.  There was a weak cold front moving ahead of the ridge through the Great Australian Bight and trailing back to the eastern south coast of Western Australia.

9A trough had formed ahead of the front and had passed through Nullarbor before the advised departure time of the aircraft.  The weak front remained well south and southeast of the route throughout the flight.

10The en route meteorological conditions during the Nullarbor-Forrest sector were approximately as follows.  Average winds to 3000 feet:  southwest 20 knots, possibly up to 25 knots briefly in an area near Nullarbor.  Cloud:  scattered to occasionally broken cumulus with bases 2500-4000 feet.  Significant weather: nil.

11The en route meteorological conditions during the Forrest-Kalgoorlie sector were approximately as follows.  Average winds to 3000 feet: southwest 15-20 knots near Forrest tending west to northwest 5-10 knots towards Kalgoorlie.  Cloud: scattered to broken cumulus with bases 4000-6500 feet.  Significant weather: nil.

12The meteorological situation does not support the presence of sustained 30 knot northwest winds along the route.

13It is understood that times associated with the route were as follows:

Departed Nullarbor (SA):     11:15 WST*

Arrived Forrest (WA):        12:30 WST

Departed Forrest (WA):      12:50 WST

Arrived Kalgoorlie (WA):     15:50 WST

*Western Standard Time

14Attached to this statement are copies of the relevant Area Forecasts for 31 July 2002.”  (attachments omitted).

76.     Mr Cramb’s extensive oral evidence included detailed meteorological information in relation to the route flown by the aircraft on 31 July 2002.  It is not necessary, however, to set out that evidence in these reasons.

Terence Robinson

77.     Mr Robinson confirmed that he had made a statement, dated 2 September 2003, in connection with this matter, and he verified the contents of that statement.  The contents of that statement, which was tendered in evidence (Exhibit R12), are as follows:

“…

2I am a Flying Operations Inspector (FOI) employed by the Civil Aviation Safety Authority (CASA).  I have been employed with CASA in this role since August 1996.

3I am also the holder of an Australian Airline Transport Pilot Licence, Aviation Reference Number (ARN) 162101 and hold a Command Multi-Engine Instrument Rating and Grade 1 Instructor Rating, all valid for aeroplanes.  I have accumulated approximately 7500 hours of Total Flight Time.

4On or about 29 July 2002, I was instructed to investigate an incident and minor accident that occurred on 26 July 2002, which involved four students and two aircraft from the Royal Aero Club of Western Australia (RACWA).

5As part of the investigation, I had cause to interview the four students involved.  Prior to these interviews commencing, I was made aware by the RACWA Chief Flying Instructor (CFI), that one of the student pilots – Ms Kaitlin SCOTT, had allegedly been an unwilling participant of low flying during her return flight from Nullarbor to Kalgoorlie on 31 July 2002.  On her return to Jandakot, Ms SCOTT reported her experiences to her instructor who in turn reported the matter to the CFI.

6Upon conducting further enquiries I requested that a CASA Investigator be appointed to investigate the allegations made by Ms SCOTT.

7CASA Investigator Serge Zarconi was subsequently appointed and tasked with the investigation into Ms SCOTT’s allegations and I assisted as required.

8On 17 December 2002, as a result of my request to the Bureau of Meteorology, I received archived aviation weather forecasts for Western Australia and South Australia that consisted of area forecasts and aerodrome forecasts for the route flown by Mr BYERS on 31 July 2002.

9The area forecasts were designated and identified by numbers.  Area forecast 53, 61 and 62 covered the flight path transversed (sic) by Mr BYERS during his flight from Nullarbor to Kalgoorlie on 31 July 2002.

10On examining the weather forecast information supplied by the Bureau of Meteorology, I was able to establish and interpret the weather forecast for 31 July 2002 along the Nullarbor – Forrest sector.

11The weather forecasts valid at the aircraft’s approximate departure time from Nullarbor of 1245CST (0315 UTC) through to 2030 CST (1100 UTC) on 31/7/02, indicated that broken cumulus and stratocumulus cloud with a base of approximately 2500 feet, with average winds at 2000 feet from the southwest (240 degrees) at 20 knots was forecast.

12The weather forecasts valid for the period that the aircraft flew along the Forrest-Kalgoorlie sector through to 2400 WST (1600 UTC) on 31/7/02 indicated that scattered to broken cumulus and stratocumulus cloud with a base between approximately 2500-3000 feet, with average winds at 3000 feet from the southwest (230 degrees) at 15 knots was forecast.

13It is my considered opinion based on this weather forecast that there were no significant weather conditions or factors on 31 July 2002 that would justify or cause an aircraft to fly below 500 feet above ground level.

14The CT4A aircraft holds 207 litres of fuel in total of which 177 litres is useable for planning purposes.  Attached and marked with the letter ‘A’ is an extract of the aircraft flight manual detailing the above information.

15Research conducted on operators of the CT4 revealed that when using normal and long range cruise power settings, the aircraft is capable of obtaining an approximate time in the air of between 240 minutes at ‘normal’ cruise and 320 minutes at long range cruise.

16This equates to an approximate range of 500 nautical miles (nm) when using normal cruise power settings and approximately 620nm when using a long range cruise power setting.

17The nautical mile range values provided above have been calculated in nil wind situations.  The aircraft’s range will reduce if flying into a headwind.  Range is dependent on a number of factors such as power setting, head/tail wind components and altitude flown.

18On viewing the maintenance release for VH-AOF, it shows 5.1 hours of flying on 31 July 2002.  I have concluded that the 5.1 hours includes the whale spotting (approximately 15-20 minutes), an arrival and departure at Forrest and an arrival at Kalgoorlie (approximately 10 minutes).

The Relevant Legislation

The Act

86.Section 20A of the Act provides:

“(1)A person must not operate an aircraft being reckless as to whether the manner of operation could endanger the life of another person.

(2)A person must not operate an aircraft being reckless as to whether the manner of operation could endanger the person or property of another person.”

The CAR

87. The relevant provisions of the CAR (as in force at all material times) are as follows:

“157     Low flying

(1)       An aircraft must not fly over:

(a)any city, town or populous area at a height lower than 1,000 feet; or

(b)any other area at a height lower than 500 feet.

Penalty:50 penalty units

(3)A height specified in subregulation (1) is the height above the highest point of the terrain, and any object on it, within a radius of:

(a)in the case of an aircraft other than a helicopter – 600 metres; or

(b)in the case of a helicopter – 300 metres;

from a point on the terrain vertically below the aircraft.

…

(4)Subregulation (1) does not apply if:

(a)through stress of weather or any other unavoidable cause it is essential that a lower height be maintained; or

(b)the aircraft is engaged in private operations or aerial work operations, being operations that require low flying, and the owner or operator of the aircraft has received from CASA  either a general permit for all flights or a specific permit for the particular flight to be made at a lower height while engaged in such operations; or

(c)the pilot of the aircraft is engaged in flying training and flies over a part of a flying training area in respect of which low flying is authorised by CASA under subregulation 141(1); or

(d)the pilot of the aircraft is engaged in a baulked approach procedure, or the practice of such procedure under the supervision of a flight instructor or a check pilot; or

(e)the aircraft is flying in the course of actually taking-off or landing at an aerodrome; or

…”

“166    Operation on and in the vicinity of an aerodrome

(1)The pilot in command of an aircraft which is being operated on or in the vicinity of an aerodrome shall:

...

(g)after take-off, not alter heading from the take-off heading at a height less than 500 feet above the terrain unless air traffic control directs the alteration or unless the alteration is necessary due to the terrain.

…”

“269    Variation, suspension or cancellation of licence, certificate or authority

(1)Subject to this regulation, CASA may, by notice in writing served on the holder of a licence or certificate or an authority, vary, suspend or cancel the licence, certificate or authority where CASA is satisfied that one or more of the following grounds exists, namely:

(a)that `the holder of the licence, certificate or authority has contravened, a provision of the Act or these regulations, including these regulations as in force by virtue of a law of a State;

…

(c)that the holder of the licence, certificate or authority has failed in his or her duty with respect to any matter affecting the safe navigation or operation of an aircraft;

(d)that the holder of the licence, certificate or authority is not a fit and proper person to have the responsibilities and exercise and perform the functions and duties of a holder of such a licence or certificate or an authority; or

…”

The Issues

88.     The issues which the Tribunal is required to consider and determine in this matter are as follows:

·whether the applicant contravened s 20A of the Act when taking-off from Nullarbor in the aircraft on 31 July 2002;

·whether the applicant contravened CAR 157 and/or s 20A of the Act when flying the aircraft during its flight from Nullarbor to Forrest on 31 July 2002;

·whether the applicant contravened CAR 157 and/or s 20A of the Act when flying the aircraft during its flight from Forrest to Kalgoorlie on 31 July 2002;

·whether the applicant’s PPL, RPPL and SPL (ARN 120194) should be cancelled pursuant to CAR 269.

89.     Oral, and supplementary written, submissions were made on behalf of the parties in relation to the abovementioned issues, and those submissions have been carefully considered by the Tribunal.

90. Mr Anastasi (for CASA), in the course of his closing submissions, raised an additional issue which had not previously been specifically mentioned during the hearing, namely, whether the applicant contravened CAR 166(1)(g) shortly after taking-off from Nullarbor in the aircraft on 31 July 2002. The Tribunal notes, however, that that issue was not referred to either in the Statement of Issues, or in the Statement of Facts and Contentions, filed and served on behalf of CASA in this proceeding (although it had been very briefly mentioned in the relevant show cause notice (T documents, p23), but not in the notice of decision dated 4 April 2003 (T documents, pp 3-13)). Mr Lithgow (for the applicant) acknowledged that the take-off from Nullarbor, and its immediate aftermath, were before the Tribunal, but only in relation to the s 20A issue. The Tribunal agrees with Mr Lithgow’s understanding and, in the circumstances, is of opinion that it would not be in accordance with procedural fairness for the Tribunal now to consider and determine the CAR 166(1) (g) issue belatedly raised by Mr Anastasi. Accordingly, the Tribunal will not consider and determine that issue in this proceeding.

Consideration and Findings

Did the applicant contravene s 20A of the Act when taking-off from Nullarbor in the aircraft on 31 July 2002?

91.     The evidence of the applicant (who was operating the aircraft) and the evidence of Ms Scott (the passenger), in relation to the manner of the take-off from Nullarbor on 31 July 2002, are in conflict.  Ms Scott’s evidence was that soon after take-off the applicant “turned steeply to the left in a wing over manoeuvre buzzing the motel” – that is, flying low over the motel building at a height which she estimated to be 200 feet above ground level.  The applicant denied that he had flown over the motel at all on that occasion.  The only other witness to that take-off, from whom the Tribunal received evidence, was Mr Mayger who said that the aircraft took off to the south and then climbed steeply and, at a point probably south of the Eyre Highway and at a height of at least 200-300 feet above ground level, it banked to the left and headed towards the head of the Great Australian Bight.  Mr Mayger did not refer to the aircraft’s being flown over the motel, nor did he indicate or even imply that there was anything dangerous or particularly unusual about the take-off, apart from the unusually steep climb-out to which Mr Leeson had drawn his attention (see paragraph 73 above).

92. On the basis of the evidence before the Tribunal regarding the take-off of the aircraft from Nullarbor on 31 July 2002, the Tribunal is not satisfied that the applicant, when operating the aircraft on that occasion, was reckless as to whether the manner of operation of the aircraft could endanger either the life of another person or the person or property of another person, within the meaning of s 20A of the Act. Accordingly, the Tribunal is not satisfied that the applicant contravened s 20A of the Act on that occasion.

Did the applicant contravene CAR 157 and/or s 20A of the Act when flying the aircraft during its flight from Nullarbor to Forrest on 31 July 2002?

CAR 157

93.     The applicant admitted that, for substantial periods during the flight from Nullarbor to Forrest, he flew the aircraft at a height below 500 feet above ground level.  In his Outline of Evidence (Exhibit A2), he stated that he “maintain(ed) an approximate height of 400 ft AGL”,  and in his oral evidence he said that he flew the aircraft at a height of between 400 feet and 500 feet above ground level during that flight.  He claimed that he flew the aircraft at a height below 500 feet above ground level in order to avoid strong headwinds and to conserve fuel.

94.     It is common ground that the distance from Nullarbor to Forrest is 148 nautical miles and that the applicant had filled up the aircraft’s fuel tanks with Avgas before departing Nullarbor.  It is also common ground that the applicant, given the amount of fuel in the aircraft’s tanks, and the prevailing weather conditions, had no concern at any stage that he would be able to reach Forrest safely.  The applicant claimed, however, that he was concerned to conserve as much fuel as possible during the Nullarbor – Forrest flight because he had been informed by the refuellers at Forrest on the outward journey on 30 July 2002 that they were having problems with their supply of fuel.  In this regard, the Tribunal notes Attachment “C” to the statement of Terence Robinson (Exhibit R12), set out in paragraph 77 above, which comprises a facsimile transmission, dated 22 August 2003, from the Managing Director of Forrest Airport to CASA referring to the ‘fuel uplift’ from Forrest by the aircraft on 30 and 31 July 2002 and stating:

“You asked if there were any fuel restrictions.  I doubt it as our records show that we started the week with 4,800 L and sold 2077 L of Avgas.  However, by week’s end another 10,000 L was delivered.  Both the transactions for this aircraft occurred at week’s end.”

The Tribunal also notes that the total fuel capacity of the aircraft is 207 litres (Attachment “A” to Mr Robinson’s statement), and that the aircraft took on 157 litres of Avgas at Forrest on the outward journey on 30 July 2002, 56.9 litres at Nullarbor on 31 July 2002, and 68 litres at Forrest on the return journey on 31 July 2002 (Attachments “B” and “D” to Mr Robinson’s statement).

95.     Having regard to the whole of the material before it, the Tribunal is not satisfied that the applicant had any real concern about the availability of fuel at Forrest on 31 July 2002.  Nor is the Tribunal satisfied, on the basis of the meteorological evidence before it, that the strength and direction of the prevailing headwinds above 500 feet above ground level, during the flight between Nullarbor and Forrest, were such as to make it “essential”, within the meaning of CAR 157(4)(a), that a height lower than 500 feet above ground level be maintained during that flight.  Furthermore, in the Tribunal’s opinion any difference in the strength of such headwinds immediately above, and immediately below, 500 feet above ground level would have been minimal.

96.     The Tribunal is satisfied that, except in the case of taking-off and landing, there was no good reason for the applicant to fly the aircraft at a height lower than 500 feet above ground level after taking-off from Nullarbor and before landing at Forrest on 31 July 2002.  The Tribunal finds that, as regards the flight of the aircraft from Nullarbor to Forrest (between take-off and landing) on 31 July 2002, para (a) of CAR 157 (4) – being the only exclusionary provision in CAR 157(4) on which the applicant relied – was not satisfied.

97.     Accordingly, the Tribunal finds that the applicant contravened CAR 157(1)(b) when flying the aircraft during its flight from Nullarbor to Forrest on 31 July 2002.

Section 20A of the Act

98.     As regards the manner of the operation of the aircraft by the applicant during the flight from Nullarbor to Forrest on 31 July 2002, Ms Scott’s evidence was that the

applicant flew the aircraft at a height of 100-200 feet above ground level for the entire duration of the flight, and that during the flight the applicant “flew quite close through patches of trees” which she estimated to be 20-40 feet in height (see paras 44-45 of her statement set out in paragraph 41 above).  In her oral evidence Ms Scott said that the aircraft was generally flying at 400-600 feet on the altimeter (200-400 feet above ground level), and that the aircraft flew over scrub (not trees) which she estimated to be 6-7 feet in height.  The applicant, as previously mentioned, maintained that he flew the aircraft at a height of 450-500 feet above ground level, and not below 400 feet above ground level.

99. Although the Tribunal is satisfied that the applicant flew the aircraft at a height below 500 feet above ground level during the flight from Nullarbor to Forrest on 31 July 2002 (as previously found), the Tribunal is unable, on the evidence before it, to make a finding regarding the approximate height (below 500 feet above ground level) at which the aircraft was flown by the applicant, or a finding regarding how close the aircraft was flown to the existing vegetation (which the Tribunal accepts is in the nature of scrub no greater than 10 feet in height). Indeed, on the evidence before it, the Tribunal is unable to make a specific finding regarding the manner of the operation of the aircraft, other than the finding (previously made) that the applicant flew the aircraft, during the flight from Nullarbor to Forrest on 31 July 2002, at a height below 500 feet above ground level and, in so doing, contravened CAR 157(1)(b). The evidence before the Tribunal is insufficient to enable it to make a finding that the applicant, during that flight, operated the aircraft “being reckless as to whether the manner of operation could endanger the life of another person” or “could endanger the person or property of another person”, within the meaning of s 20A(1) and (2) of the Act.

100. Accordingly, the Tribunal is not satisfied that the applicant contravened s 20A of the Act when flying the aircraft during its flight from Nullarbor to Forrest on 31 July 2002.

Did the applicant contravene CAR 157 and/or s 20A of the Act when flying the aircraft during its flight from Forrest to Kalgoorlie on 31 July 2002?

CAR 157

101.   The applicant also admitted that, for substantial periods during the flight from Forrest to Kalgoorlie, he flew the aircraft at a height below 500 feet above ground level.  In his Outline of Evidence (Exhibit A2), he stated that he “maintain(ed) a height of approximately 400 ft AGL”, and in his oral evidence he said that he flew the aircraft at a height of 400-500 feet, during the flight.  He also claimed that he flew the aircraft at a height below 500 feet above ground level in order to avoid strong headwinds (similar to those he claimed that he experienced during the Nullarbor-Forrest flight) and to conserve fuel because, given that the distance between Forrest and Kalgoorlie is 345 nautical miles and that he only had enough fuel for 4 hours of flying, he needed to maintain a speed of at least 100 knots.

102.   It is common ground that the distance between Forrest and Kalgoorlie is 345 nautical miles and that the applicant had filled up the aircraft’s fuel tanks with Avgas before departing Forrest.  The Tribunal had before it much technical evidence regarding the rate of fuel consumption by the aircraft when flown at various power settings and at various speeds, as well as meteorological evidence regarding the predicted direction and velocity of winds at various altitudes at the time, and along the route, of the flight of the aircraft from Forrest to Kalgoorlie on 31 July 2002.  Having regard to the whole of the material before it, the Tribunal is not satisfied that the applicant had any real concern about the fuel consumption and range of the aircraft in respect of the flight from Forrest to Kalgoorlie; nor is the Tribunal satisfied that the strength and direction of the prevailing headwinds above 500 feet above ground level, during that flight, were such as to make it “essential”, within the meaning of CAR 157(4)(a), that a height lower than 500 feet above ground level be maintained during that flight.  Furthermore, in the Tribunal’s opinion, any difference in the strength of such headwinds immediately above, and immediately below, 500 feet above ground level would have been minimal.

103.   As regards the actual duration of that flight, the recollections of the applicant and of Ms Scott differ regarding the departure and arrival times.  In the Tribunal’s opinion, the best evidence regarding that matter consists of the Delivery Receipts for fuel added to the aircraft shortly before its departure from Forrest and shortly after its arrival at Kalgoorlie.  Those Delivery Receipt (Exhibits A3 and R13) indicate that the aircraft finished fuelling at Forrest at 12.50 pm (WST) on 31 July 2002 and commenced fuelling at Kalgoorlie at 4.15 pm (WST) on 31 July 2002.  Accordingly, on the basis of those Delivery Receipts, the duration of the flight of the aircraft from Forrest to Kalgoorlie on 31 July 2002 was less than 3 hours 25 minutes.  Furthermore, the Kalgoorlie Delivery Receipt (Exhibit R13) indicates that the aircraft took on 136 litres of fuel.  On the basis that the aircraft’s total fuel consumption on the flight from Forrest to Kalgoorlie was approximately 136 litres, and on the basis of evidence before the Tribunal that the likely rate of fuel consumption during that flight was 44-45 litres per hour, the Tribunal finds that the actual duration of that flight was approximately between 3 hours 1 minute and 3 hours 5 minutes – almost one hour less than the flying time that the applicant estimated was available to him (see paragraph 26 above).  This finding reinforces the conclusion, expressed in paragraph 102 above, that the Tribunal is not satisfied that the applicant had any real concern about the fuel consumption and range of the aircraft in respect of the flight from Forrest to Kalgoorlie on 31 July 2002.

104.   The Tribunal is satisfied that, except in the case of taking-off and landing, there was no good reason for the applicant to fly the aircraft at a height lower than 500 feet above ground level after taking-off from Forrest and before landing at Kalgoorlie on 31 July 2002.  The Tribunal finds that, as regards the flight of the aircraft from Forrest to Kalgoorlie (between take-off and landing) on 31 July 2002, para (a) of CAR 157(4) – being the only exclusionary provision in CAR 157(4) on which the applicant relied – was not satisfied.

105.   Accordingly, the Tribunal finds that the applicant contravened CAR 157(1)(b) when flying the aircraft during its flight from Forrest to Kalgoorlie on 31 July 2002.

Section 20A of the Act

106. The question whether the applicant contravened s 20A of the Act, when flying the aircraft during its flight from Forrest to Kalgoorlie on 31 July 2002, centres on CASA’s contentions that the applicant flew the aircraft close to telecommunications towers, a stationary train and a moving train in the course of that flight. CASA relied, in support of these contentions, on the evidence of Ms Scott, and, in support of the contention regarding a moving train, also on the evidence of Mr Free and Mr Jeakes. The applicant denied each of these contentions.

107.   The Tribunal will first consider CASA’s contention that the applicant flew close to (or “buzzed”) a moving train.

108.   As regards that contention, there are several inconsistencies in the evidence before the Tribunal.  These inconsistencies relate to the time and location of the alleged incident and to the physical aspects of the alleged incident itself.  They may be summarised as follows:

·Time – Ms Scott said that she was not then taking note of the time but that her “guess” was that it occurred about 1 hour 20 minutes after departing Forrest, and that it would have occurred between 1 hour 5 minutes and 1 hour 50 minutes after departing Forrest (see paragraph 57 above); Mr Free and Mr Jeakes both stated that it occurred at about 1.00pm (see paragraphs 63, 67 and 84 above);

·Location  – Mr Free stated that it occurred between Wilban and Nurina (where the “Indian Pacific” passenger train was waiting in a crossing loop for his train to pass); Mr Jeakes stated that it occurred while the train was travelling towards Wilban (that is, to the west of Wilban) (see paragraphs 67 and 84 above);

·Physical aspects – Ms Scott said that the applicant veered to the right side (that is, north) of the train at a height of approximately 50-100 feet above ground level (see paragraphs 41, 50 and 59 above); Mr Free said that the aeroplane veered to the south of the train and flew on the south side of the train at a height of about 100 feet above ground level (see paragraphs 63, 66 and 68 above);  Mr Jeakes estimated that the aeroplane was flying at 100-200 feet above ground level at the time (see paragraph 84 above).

109.   Both Mr Free and Mr Jeakes described the relevant aeroplane as a single engine aeroplane, predominantly white in colour, with a bubble shaped canopy, and similar to an “Air Force Trainer” (see paragraphs 63 and 84 above).  The Tribunal notes that there is no dispute that the aircraft matches that general description.

110.   The Tribunal has no reason to doubt the credibility of Mr Free and Mr Jeakes and, on the basis of their evidence, the Tribunal accepts that an incident, involving their train being “buzzed” by an aeroplane in the early afternoon of 31 July 2002 when the train was at a location west of Forrest and travelling in an easterly direction, did occur.

111.   There is also some doubt as to the precise time of departure of the aircraft from Forrest on 31 July 2002 but, given that the refuelling of the aircraft was completed at 12.50pm (Exhibit A3) and allowing for some extra time on the ground, the Tribunal is reasonably satisfied that the time of departure of the aircraft from Forrest was approximately 1.00pm or very shortly thereafter.

112.   Given that the aircraft departed Forrest at approximately 1.00pm on  31 July 2002 and then proceeded to fly in a westerly direction following the railway line to Kalgoorlie, and given the abovementioned evidence of Mr Free and Mr Jeakes regarding their train being “buzzed” by an aeroplane matching the description of the aircraft in the early afternoon of 31 July 2002 at a location west of Forrest, the Tribunal is reasonably satisfied that the aeroplane involved in that incident was the aircraft.  In this connection, the Tribunal also accepts the evidence of Ms Scott that the applicant “buzzed” a moving train while flying the aircraft after departing Forrest in the afternoon of 31 July 2002.  The Tribunal has no reason to doubt her evidence that that incident occurred, and notes that her evidence is broadly consistent with that of Mr Free and Mr Jeakes regarding the occurrence (if not the details) of that incident.  Moreover, there was no evidence before the Tribunal to suggest that any other aeroplane matching the description given by Mr Free and Mr Jeakes was in, or anywhere near, the vicinity of that incident in the afternoon of 31 July 2002, and the Tribunal is prepared to infer that that was, at the very least, highly unlikely.  As regards the applicant’s evidence that, although he recalled seeing a stationary train on a side loop, he did not recall seeing a moving train, during the flight from Forrest to Kalgoorlie (see paragraphs 27 and 33 above), the Tribunal regards that evidence as unsatisfactory because there can be no doubt – having regard to the whole of the evidence before the Tribunal – that the aircraft flew over the train, which was being driven by Mr Free and Mr Jeakes, at some point during its flight between Forrest and Kalgoorlie on 31 July 2002.

113.   Accordingly, the Tribunal is reasonably satisfied, and finds, that , in the early afternoon (probably between 1.00pm and 2.30pm) on 31 July 2002, the applicant flew the aircraft in a westerly direction at a height of 100–200 feet above ground level directly towards, and then alongside, a freight train travelling in an easterly direction, in the course of a flight in the aircraft from Forrest to Kalgoorlie.

114. The Tribunal is, furthermore, of the opinion that the applicant, when operating the aircraft at the time of the “train buzzing” incident referred to in paragraphs 107 – 113 above, was “being reckless as to whether the manner of operation could endanger the life of another person” or “the person … of another person”, within the meaning of s 20A of the Act, in that he operated the aircraft in such a manner as to create a substantial risk of endangering the life or the person of other persons, namely, Ms Scott and the train drivers, Mr Free and Mr Jeakes, and he did so either heedless of the existence of such risk or in deliberate disregard of such risk.

115. Accordingly, the Tribunal finds that the applicant, when operating the aircraft at the time of the “train buzzing” incident referred to in paragraphs 107 – 113 above, contravened s 20A of the Act.

116. As regards CASA’s contention that the applicant also flew the aircraft close to a stationary train on 31 July 2002, the Tribunal accepts Ms Scott’s evidence to the effect that the applicant intended to fly the aircraft at low height over that train, but the evidence before the Tribunal is unclear regarding the proximity of the aircraft to that train when the applicant realised that the train was stationary and decided to “abort” the intended “buzzing” of that train. In these circumstances the Tribunal is not reasonably satisfied that the applicant, in that incident, operated the aircraft “being reckless as to whether the manner of operation could endanger the life of another person” or “the person … of another person” (namely, Ms Scott), within the meaning of s 20A of the Act. The Tribunal is, however, reasonably satisfied that the applicant intended to “buzz” that train and that, had it not been stationary, he would have done so, thereby possibly contravening s 20A of the Act. On the basis of the evidence before the Tribunal, however, the Tribunal is not reasonably satisfied that the applicant contravened s 20A of the Act in relation to the stationary train.

117.   Likewise, as regards CASA’s contention that the applicant flew the aircraft close to telecommunications towers during the flight from Forrest to Kalgoorlie on 31 July 2002, the evidence before the Tribunal is inconclusive.  Whereas in paragraph 50 of her statement (see paragraph 41 above), Ms Scott stated that the applicant “had to swerve several towers” – thereby necessarily implying that he had flown the aircraft very close to them – in her oral evidence Ms Scott explained that by the term “swerve” she meant that, as the applicant flew past a tower, he dipped the left wing of the aircraft about 10 degrees.  Her oral evidence regarding the distance between the towers and the railway line (above which the aircraft was flying) was, in the Tribunal’s opinion, uncertain and unreliable.

118. In these circumstances the Tribunal cannot be reasonably satisfied that the applicant flew the aircraft close to telecommunications towers “being reckless as to whether the manner of operation [of the aircraft] could endanger the life of another person” or “the person … of another person” (namely Ms Scott), within the meaning of s 20A of the Act. Accordingly, the Tribunal is not reasonably satisfied that the applicant contravened s 20A of the Act in relation to the telecommunications towers.

Are there grounds on the basis of which the applicant’s PPL, RPPL and SPL (ARN 120194) may be cancelled pursuant to CAR 269(1)?

119.   CASA submitted that the applicant’s PPL, RPPL and SPL (ARN 120194) should be cancelled under CAR 269(1) on any, or all, of the grounds specified in paragraphs (a), (c) and (d) of that subregulation.

CAR 269(1)(a) – has the applicant contravened a provision of the Act or the CAR?

120.The Tribunal has found that:

· the applicant contravened s 20A of the Act when flying the aircraft during its flight from Forrest to Kalgoorlie on 31 July 2002;

·     the applicant contravened CAR 157(1)(b) when flying the aircraft during its flight from Nullarbor to Forrest on 31 July 2002;

·     the applicant contravened CAR 157(1)(b) when flying the aircraft during its flight from Forrest to Kalgoorlie on 31 July 2002.

Accordingly, the Tribunal finds that the ground specified in para (a) of CAR 269(1) is made out in this case.

CAR 269(1)(c) – has the applicant failed in his duty with respect to any matter affecting the safe navigation or operation of an aircraft?

121. It necessarily follows from the Tribunal’s finding that the applicant contravened s 20A of the Act when flying the aircraft during its flight from Forrest to Kalgoorlie on 31 July 2002 that the applicant thereby also failed in his duty with respect to the safe operation of the aircraft, and the Tribunal so finds.

122.   The Tribunal is also satisfied, having regard to the evidence of Mr Robinson relating to the hazards of low flying (see paragraphs 77 and 78 above), that, by deliberately flying the aircraft at a height below 500 feet above ground level, without good reason, for substantial periods during its flight from Nullarbor to Forrest and from Forrest to Kalgoorlie, in contravention of CAR 157(1)(b), the applicant failed in his general duty with respect to the safe operation of the aircraft, and the Tribunal so finds.  Furthermore, as regards the flight from Forrest to Kalgoorlie, the Tribunal has already indicated that it accepts Ms Scott’s evidence in relation to the applicant’s intended “buzzing” of a train and his decision to “abort” when, approaching the train at low height, he realised it was stationary (see paragraph 116 above).  In the Tribunal’s opinion, the applicant’s forming the intention to “buzz” that train, and his flying the aircraft at low height towards that train before deciding to “abort” the intended “buzzing” manoeuvre, also involved a clear breach by him of his duty with respect to the safe operation of the aircraft, and the Tribunal so finds.

123.   Accordingly, the Tribunal finds that the ground specified in para (c) of CAR 269(1) is also made out in this case

CAR 269(1)(d) – is the applicant not a fit and proper person to have the responsibilities and exercise and perform the functions and duties of a holder of a PPL, RPPL and SPL ?

124.   In Re Repacholi and Civil Aviation Safety Authority (2003) 75 ALD 312 the Tribunal (as presently constituted) said (at p 314):

“(88)    The expression ‘fit and proper person’, which commonly appears in licensing and other forms of regulatory legislation, must be interpreted having regard to the particular legislative context in which it appears: Maxwell v Dixon [1965] WAR 167 at 169; Re Taylor and Department of Transport (1978) 1 ALD 312 at 321; Re Griffiths and Civil Aviation Authority (1994) 34 ALD 554 at 559.  In the present case the question for the tribunal to determine is not merely whether the applicant is, or is not, a fit and proper person; rather, it is whether the applicant is, or is not, ‘a fit and proper person to have the responsibilities and exercise and perform the functions and duties of a holder of’ a pilot licence …”.

It is appropriate that the Tribunal, in determining that question, have particular regard to matters related to the safety of air navigation.

125. In the Tribunal’s opinion the matters referred to paragraphs 121 and 122 above (and more fully discussed in preceding paragraphs) – especially the Tribunal’s finding that the applicant contravened s 20A of the Act in relation to the moving train incident, and the applicant’s conduct in relation to his intended “buzzing” of the stationary train – demonstrate that he is not a fit and proper person to have the responsibilities, and exercise and perform the functions and duties, of a holder of a PPL, RPPL and SPL.

126.   Accordingly, the Tribunal finds that the ground specified in para (d) of CAR 269(1) is also made out in this case.

Should the applicant’s PPL, RPPL and SPL (ARN 120194) be cancelled pursuant to CAR 269(1)?

127.Having regard to :

· in particular, the abovementioned contravention by the applicant of s 20A of the Act, and also the abovementioned contraventions by him of CAR 157(1)(b), as found by the Tribunal;

· the failures by the applicant in his duty with respect to the safe operation of the aircraft involved in the abovementioned contraventions of the Act and the CAR; and

·     the Tribunal’s finding that the applicant, accordingly, is not a fit and proper person to have the responsibilities, and exercise and perform the functions and duties, of a holder of a PPL, RPPL and SPL;

the Tribunal concludes that the correct or preferable decision in this matter is that the applicant’s PPL, RPPL and SPL (ARN 120194) should be cancelled.

Decision

128.For the above reasons, the Tribunal affirms the decision under review.

I certify that the 128 preceding paragraphs are a true copy of the reasons for the decision herein of Associate Professor S D Hotop, Deputy President, and Air Marshal I B Gration, Member

Signed:         .........(sgd J Lim).............
  Associate

Dates of Hearing  17-20 January 2005
Date of Final Submissions          14 February 2005
Date of Decision  12 July 2005
Counsel for the Applicant           Mr P Lithgow
Solicitor for the Applicant            Grundy Maitland & Co
Counsel for the Respondent      Mr A Anastasi
Solicitor for the Respondent       Office of Legal Counsel, CASA