Chernikeeff and Civil Aviation Safety Authority

[2020] AATA 25

Chernikeeff and Civil Aviation Safety Authority [2020] AATA 25 (13 January 2020)

Division:GENERAL DIVISION

File Number:          2018/5954

Re:PAUL CHERNIKEEFF

APPLICANT

AndCivil Aviation Safety Authority

RESPONDENT

DECISION

Tribunal:R CAMERON SENIOR MEMBER.

Date:13 January 2020

Place:Melbourne

Accordingly, the Tribunal sets aside the reviewable decision and substitutes a decision in the following terms:

1. The Applicant’s Private Pilot Licence Aeroplane Category (PPL) is suspended until 12 July 2020;

   (a)Prior to reinstatement of the Applicant’s PPL:

   (i)The Applicant must undertake a minimum of 15 hours of remedial flying training at a flight training school acceptable to Civil Aviation Safety Authority (CASA). CASA must receive a written report from the flight training school on the standard of the Applicant’s conduct as a pilot during the training period.

   (ii)The Applicant must undertake and pass a PPL flight test under the supervision of a CASA officer, or an examiner approved by CASA.

   (iii)Undertake a psychological evaluation by a psychologist acceptable to CASA and provide a psychological evaluation report addressing the Applicant’s insight into the conduct which led to the making of the reviewable decision and the likelihood of there being a repeat of such conduct.

   (b)That every six months until 30 June 2022 the Applicant must furnish to CASA copies of his Pilot Logbook and all relevant pages of the Maintenance Release for Aircraft VH-BQZ.

   (c)That the Applicant is precluded from flying with any passengers from the reinstatement of the Applicant’s PPL until 30 June 2021.

   ....[sgd]....................................................................

   R CAMERON SENIOR MEMBER.

   CATCHWORDS

   CIVIL AVIATION – cancellation of Private Pilot Licence Aeroplane Category – whether applicant fit and proper person – whether applicant failed in duty as a pilot – need to maintain proper documentation – where applicant had prior suspension of licence – decision under review set aside and substituted

   LEGISLATION

   Civil Aviation Act 1988 (Cth)
   Civil Aviation Regulations 1988 (Cth)

   Administrative Appeals Tribunal Act 1975 (Cth)

   CASES

   Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321
   Ekinci v CASA [2014] AATA 424 at [10].
   Grima v CASA[2018] AATA 3737.
   Hughes and Vale Pty Ltd v NSW (No 2) (1955) 93 CLR 127

   Re: Broadbent v CASA [1999] AATA 972.

   SECONDARY MATERIALS

   Civil Aviation Advisory Publication 42ZC-1 (2)

   REASONS FOR DECISION

   R CAMERON SENIOR MEMBER.

   THE REVIEWABLE DECISION.

2. The Applicant seeks a review of a decision made by the Respondent (“CASA”) made on 12 July 2018 cancelling the Applicant’s Private Pilot Licence Aeroplane Category (“PPL”) (“the reviewable decision”).

   THE APPLICABLE LEGISLATION.

3. CASA is the regulator of civil aviation in Australia, established under the relevant provisions of the Civil Aviation Act 1988 (Cth) (“the Act”).

4. Section 3A of the Act specifies its objects as the establishment of a regulatory framework for maintaining, enhancing and promoting the safety of civil aviation, with particular emphasis on preventing aviation accidents and incidents.

5. As was readily acknowledged by counsel for both the Applicant and the Respondent section 9A of the Act requires CASA—and the Tribunal stepping into its shoes as a decision maker—to have regard for the safety of air navigation as the most important consideration when exercising the powers conferred upon it under the Act.

6. Subordinate legislation, being the Civil Aviation Regulations 1988 (Cth) (“CAR”), under the powers conferred by the Act have been made which regulate various categories of pilot including a PPL holder, such as the Applicant.

7. The power to vary, suspend or cancel a PPL is conferred in CAR at reg 269 (1).[1] It was pursuant to CAR 269 (1) (c) and (d) that the Respondent made the reviewable decision to cancel the Applicant’s PPL.

   [1] It is not necessary to reproduce CAR 269 for the purpose of these reasons. However, the Regulation is referred to in its entirety for its full force and effect. The regulation also specifies various procedural steps that must be taken by CASA in subsections (2), (3) and (4) before it may vary, suspend or cancel a PPL.

8. CAR 269 (1) (c) provides that CASA may, by notice in writing vary, or cancel a PPL if the licence holder has failed in his duty with respect to any matter affecting the safe navigation or operation of an aircraft.

9. CAR 269 (1) (d) provides that CASA may, by notice in writing vary, or cancel a PPL if the licence holder is not a fit and proper person to have the responsibilities and exercise and perform the functions and duties of a holder of such an authorisation.

   BACKGROUND FACTS.

10. Helpfully, counsel for the Applicant and the Respondent prepared an agreed statement of facts which was provided at the commencement of the hearing.

11. The Applicant is the registered operator of an amateur built Helve Classic aircraft registration mark VH-BQZ (“Aircraft VH-BQZ”).

12. Aircraft VH-BQZ was manufactured in the United States of America in 2004. In 2005 it was disassembled and shipped to Australia. Subsequently, it was reassembled in Australia in 2006.

13. On 21 March 2006 a Special Certificate of Airworthiness (“SCOA”) was issued for Aircraft VH-BQZ. The SCOA specifies that, apart from the conditions contained in its annexure, all other maintenance and regulatory requirements are applicable.

14. Part 1 of Aircraft VH-BQZ logbook records that it is fitted with a “Rotec” engine which is manufactured by “Rotec Aerosport” a business or company which is principally owned and controlled by the Applicant. The Applicant has been a proprietor of this business and manufactured several versions of the “Rotec” engine since approximately 2000. The engine manufacturing business conducted by the Applicant at all times material to this application has operated from Tyabb aerodrome. More will be said about this engine manufacturing business later in these reasons.

15. The Applicant’s PPL Aviation Reference Number 755667 was issued to him on 2 June 2007.

16. The Applicant has not at any time been issued with any form of authority permitting him to perform maintenance on Aircraft VH-BQZ.[2]

    [2] This fact is admitted in the Agreed Statement of Facts at paragraph 7.

17. Since obtaining his PPL in 2007 he has flown over 400 hours.

    SOME OBSERVATIONS ON THE WITNESSES.

18. It is appropriate to make some initial observations about the veracity of the witnesses who gave evidence during the course of the hearing before the Tribunal. Specific observations will be made later in the reasons concerning various witnesses’ evidence on several discrete issues.

19. The Applicant in several ways was a witness who was challenged by giving evidence. He had in many respects made a series of errors or omissions concerning several incidents and his subsequent dealings with CASA. He was obviously embarrassed by these events, and generally admitted his wrongdoing where appropriate. Much of it was very serious wrongdoing. However, sometimes in order to explain away his wrongdoing or embarrassment, he did not present as a particularly credible witness. There appeared to be at times a tendency to reconstruct, gloss over, or as some might describe it, “gild the lily”, to downplay the seriousness of his conduct. Where his evidence conflicts with that of other witnesses the Tribunal prefers the evidence of the other witnesses. However, despite some of the serious misconduct on the part of the Applicant the Tribunal does not view him as a fundamentally dishonest individual or a person with tendencies to engage in behaviour that might be seen to be morally reprehensible. The Applicant did, with hindsight, acknowledge his wrongdoing and conceded as he put it, that he had taken a wrong pathway and it was very regrettable. The Tribunal accepts this explanation.

20. The other witnesses who gave evidence were impressive and truthful. The witnesses called by CASA Mr Cox and Mr Punshon were extremely cogent and of much assistance to the Tribunal. They are dedicated and experienced aviation professionals with a regulatory background, and gave their evidence in a fair and impartial manner. They readily made concessions where called for, and the Tribunal accepts their evidence in its entirety.

21. Similarly, Mr McGilvray and Mr Dawson—save for their views on some aspects of the nature and effect of the damage to the Applicant’s aircraft VH-BQZ (“Aircraft VH-BQZ”) (which the Tribunal considers were legitimate expert opinions) when compared particularly with that of Mr Punshon, which will be commented on later in these reasons—were thoroughly credible witnesses who gave their evidence impartially, fully understanding their obligations to the Tribunal. Their evidence is similarly accepted by the Tribunal.

22. Mr Ham was also a fair minded and credible witness. The Tribunal accepts his evidence.

23. Mr Higgins was a witnesses whose evidence was slightly more problematic and will be commented on later in these reasons. The Applicant sought to place considerable emphasis on his evidence, and CASA sought to discredit him to some extent. The Tribunal does not consider him to be unreliable but does find some aspects of his evidence more in the nature of a reconstruction, albeit a genuine reconstruction. He did his best to assist the Tribunal, but his account was not as impressive as other witnesses at times. Accordingly, where his evidence conflicts with that of other witnesses the Tribunal prefers the evidence of other witnesses.

    THE ISSUES BEFORE THE TRIBUNAL.

24. The following issues are before the Tribunal for determination:

    (a)Whether the Applicant has failed in his duty with respect to any matter affecting the safe navigation or operation of an aircraft within the meaning of CAR 269 (1) (c);

    (b)Whether the Applicant is not a fit and proper person to have the responsibilities and exercise and perform the functions and duties of the holder of a PPL within the meaning of CAR 269 (1) (d);

    (c)Whether the correct decision is to affirm, vary or set aside the reviewable decision; and

    (d)If the correct and preferable decision is to vary the reviewable decision upon what terms should it be so varied?[3]

    [3] The Respondent at paragraph 47 of its Statement of Facts, Issues and Contentions identified what it sees as the Issues for determination by the Tribunal in this matter. The Applicant did not in his Statement of Facts, Issues and Contentions, nor his submissions made during the course of the hearing, identify the issues for determination. The issues articulated in this paragraph have been adapted by the Tribunal from the questions raised in paragraph 47 of the Respondent's Statement.

    THE RELEVANT INCIDENTS AND EVENTS RELIED UPON BY CASA TO CANCEL THE APPLICANT’S PPL.

25. CASA relies upon several incidents and events to justify making the reviewable decision. The evidence concerning each of them will be considered in the course of these reasons. The hearing occupied four sitting days, during which a number of witnesses gave evidence and a significant number of documents were tendered.

26. Each of the incidents will be considered and, in the event that the parties do not agree on all of the facts and circumstances giving rise to these incidents, findings will be made on the evidence that was before the Tribunal.

27. Whilst there were issues of disagreement between the parties in conflict concerning specific details, there was much in common concerning the events in question. There was certainly, no debate about the date of the incidents or events concerned, and the broad underlying facts in each case. The description of each of the incidents or events used in the Agreed Statement of Facts will be adopted in these reasons.

    INCIDENT ON 17 APRIL 2014.

28. The first incident or event relied upon by CASA occurred on 17 April 2014. On that day the Applicant flew Aircraft VH-BQZ with one passenger from Tyabb aerodrome to Temora.[4]

    [4] This fact is admitted in the Agreed Statement of Facts at paragraph 8.

29. At the time of the flight, the Applicant did not have a current medical certificate and Aircraft VH-BQZ did not have a current maintenance release.[5]

    [5] This fact is admitted in the Agreed Statement of Facts at paragraph 9.

30. When asked by CASA officers on 17 April 2014, the Applicant said that his last examination by a Designated Aviation Medical Examiner was carried out around six months earlier. In fact the Applicant’s latest medical certificate had expired on 23 August 2013 and the last medical examination he had undertaken had been 12 months before that date.[6]

    [6] This fact is admitted in the Agreed Statement of Facts at paragraph 10.

31. In evidence before the Tribunal was a witness statement from an officer of CASA Mr Scrimshaw who conducted a “ramp check” of the Applicant and Aircraft VH-BQZ on 17 April 2014. The contents of this statement were not challenged by the Applicant in the course of the hearing before the Tribunal. Mr Scrimshaw’s statement carefully records the specific questions he asked the Applicant when conducting the ramp check on that day. He specifically asked the Applicant what class medical certificate he held, to which he responded “A Class two. It’s current.” He was further asked when his medical was undertaken and he responded “I can’t remember the name but it was done about 6 months ago”.

32. Later in the evening of 17 April 2014, Mr Scrimshaw checked CASA’s record keeping system and determined that the Applicant previously held a Class 2 CASA Medical Certificate but it had expired on 23 August 2013. The next day he approached the Applicant and informed him that the CASA systems confirmed that he did not hold a current Class 2 CASA Medical Certificate. He asked the Applicant if he had anything further to say about the topic to which the Applicant responded “I do have one. It was done by a doctor last year.” When asked the name of the doctor the Applicant replied “I can’t remember.”

33. When asked by Mr Scrimshaw during the ramp check for the maintenance release for Aircraft VH-BQZ the Applicant stated that he was not carrying it. He was asked further by Mr Scrimshaw who carries out maintenance on the aeroplane to which he replied “I do.” The Applicant was further probed as to the whereabouts of the maintenance release and initially replied “Not sure”. Additional probing by Mr Scrimshaw as to where the documents might be evoked a response “In Melbourne at the office.” He was also asked my Mr Scrimshaw why he was not carrying any documentation in the aircraft to which he replied “Because they might blow out of the cockpit.”

34. In cross-examination the Applicant did not cavil with the contents of Mr Scrimshaw’s statement and readily conceded that the medical certificate had expired in August 2013 and maintenance release in October 2013.[7]

    [7] He also made these concessions in both the record of interview with a CASA investigator Mr Moore on 27 May 2014 (document T 33 of the T documents) and his response to the Show Cause Notice on 27 November 2014 (document T 58 of the T documents).

35. The Applicant conceded in cross examination that he told Mr. Scrimshaw he didn’t carry the required documents in Aircraft VH-BQZ because they might blow out of the cockpit. He also admitted that not carrying the required documents in the cockpit was a conscious decision on his part not to comply with the rules. He said it was no one else’s fault, it was his decision.[8]

    [8] See pages 246 and 247 of the transcript.

36. The Applicant in a recorded record of interview with a CASA investigator Mr Moore, on 27 May 2014, readily conceded that he flew Aircraft VH-BQZ without a current maintenance release and when he did not have a current medical certificate.[9] In that record of interview he stated at the time he was not aware the maintenance release or his medical certificates were due. In his statement, and in the witness box, he acknowledged the seriousness of what he described as the mistakes, and conceded they were due entirely to his lack of attention. In his response to the Show Cause Notice, and in the witness box, he also offered an excuse for flying without a current maintenance release and the current medical certificate as he was subjected to major distractions. In particular, he identified the sudden illness and subsequent death of his mother just prior to the flight to Temora. She had been seriously ill for approximately 8 months prior to that flight.[10]

    [9] A transcript of the record of interview between the Applicant and Mr Moore is document T 33 of the T documents. This concession is contained in page 4 of the record of interview which is document T 33 of the T documents.

    [10] Also, in his response to the Show Cause Notice on 27 November 2014 he stated that the second distraction was related to the pressures of a big relocation of his business. He did not identify precisely what those pressures were.

37. In his evidence both in his witness statement,[11] the witness box and his response to the Show Cause Notice on 27 November 2014 the Applicant contended that at all relevant times Aircraft VH-BQZ was in “sound operating condition” or “top mechanical order” and he was in good health. This evidence was given so as to downplay and/or gloss over the seriousness or effect of his conduct in flying Aircraft VH-BQZ at the relevant times.

    [11] Paragraph 6.

38. Whilst the Tribunal understands the nature or thrust of the Applicant’s evidence on mitigation, it cannot be accepted. Such a contention is contrary to the objects of the Act which, it will be recalled, place a particular emphasis on preventing aviation accidents and incidents. He may have an intimate knowledge of Aircraft VH-BQZ in many respects. This knowledge may have been acquired by reason of his role in assembling the aircraft, rewiring it, building the engine which powers it and having flown it over many hours. However, he is not a qualified engineer or for that matter, a Licensed Aircraft Maintenance Engineer (“LAME”). It is no substitute for having a valid maintenance release. The purpose of which is to further the high levels of safety and prevention of aviation accidents and incidents as mandated by the Act. It is not for the Applicant to second guess that regulatory regime. Whilst the Applicant may consider his health to have been good at all material times, he is not a qualified medical professional. The requirement for regular medical certification is an important part of the regulation of pilots to ensure that they do not fly with any medical conditions, let alone those readily capable of identification and detection in a medical examination, which could otherwise impact on their capacity to command an aircraft. The potential adverse safety consequences of ignoring this requirement are obvious for any passengers and the public on the ground, amongst other things. This was an example of the approach adopted by the Applicant in his evidence as noted earlier in these reasons, of a tendency to downplay or gloss over the seriousness of his conduct based on his personal belief of acceptable aviation practice.

39. Further, during the conversation with CASA officers on 17 April 2014 the Applicant confirmed that he had not taken the Sports Aircraft Association of Australia Maintenance Procedures Course.[12] Mr Scrimshaw asked the Applicant who carried out the maintenance on the aeroplane. The Applicant replied “I do.” He then confirmed that he had not undertaken the Maintenance Procedures Course and stated to Mr Scrimshaw that “Dave Dawson (who gave evidence at the hearing) signs off the Maintenance Release. I do the work, but he signs it off.”

    [12] This fact is admitted in the Agreed Statement of Facts at paragraph 11. Details of the conversation concerning the Maintenance Procedures Course provided by the Sports Aircraft Association of Australia are referred to in paragraphs 38 to 41 of Mr Scrimshaw’s witness statement.

    APPLICATION FOR SPECIAL FLIGHT PERMIT AND INCIDENT ON 21 MAY 2014.

1. On 8 May 2014 a LAME, David Dawson,[13] applied on the Applicant’s behalf for a Special Flight Permit (“SFP”) to ferry Aircraft VH-BQZ from Temora to La Trobe Valley Victoria so that maintenance could be carried out on it at La Trobe Valley Airport.[14] Mr Dawson is the Managing Director of East Coast Aviation Pty Ltd, which has a workshop at La Trobe Valley Airport. He has been an aircraft engineer since 1979.

   [13] Mr Dawson made two statements that were tendered in evidence during the hearing and also gave evidence from the witness box.

   [14] This fact is admitted in the Agreed Statement of Facts at paragraph 12.

2. On 13 May 2014, the Applicant telephoned Mr Anderson an officer of CASA to enquire about the progress of the SFP application.[15]

   [15] This fact is admitted in the Agreed Statement of Facts at paragraph 13.

3. On 19 May 2014, the Applicant emailed Mr Anderson to enquire about the progress of the application for a SFP.[16]

   [16] This fact is admitted in the Agreed Statement of Facts at paragraph 14. The email forms part of an email trail contained in document T 18 of the T documents.

4. CASA by email on 20 May 2014 informed the Applicant that the application for a SFP had been refused.[17]

   [17] This fact is admitted in the Agreed Statement of Facts at paragraph 15. The email forms part of an email trail contained in document T 19 of the T documents. In the record of interview with Mr Moore on 27 May 2014 (document T 33 of the T documents) the Applicant admitted receipt of the email and acknowledged that it informed him that a "special permit to fly would not be allowed".

5. On 21 May 2014, despite knowing that the SFP had been refused, the Applicant flew Aircraft VH-BQZ from Temora to Tyabb and then from Tyabb to La Trobe Valley.[18]

   [18] This fact is admitted in the Agreed Statement of Facts at paragraph 16.

6. The Applicant was probed in the record of interview on 27 May 2014 about why he flew the aircraft from Temora to Lt Trobe Valley as described. His explanation was that after the application for the SFP had been refused he looked at alternative methods of getting the aircraft there safely. He stated that he was under pressure at the time because no “hangarage” was available.[19] He stated that he did some research and “sort of felt the aircraft, being experimental, could be flown directly to a maintenance facility”. He stated he thought he was complying with the regulations. When further probed by Mr Moore he acknowledged he did not make any enquiries with CASA if he could do so.

   [19] In cross examination he put it that he was in an awkward position because he had a fabric and wooden aircraft which he was very attached to. Presumably, he was concerned about it being exposed to the elements. He stated it was "stuck at Temora” for some time. He had asked Mr Dawson if he could travel to Temora (NSW) to carry out the maintenance. Mr Dawson was not available.

7. At the time of the flight by the Applicant on 21 May 2014 Aircraft VH-BQZ did not have a current maintenance release.[20] As noted earlier in the record of interview on 27 May 2014, his witness statement filed in this proceeding and in the witness box the Applicant readily conceded this was the case. He further conceded in cross-examination he knew that he was not permitted to fly Aircraft VH-BQZ on that day without a valid maintenance release.

   [20] This fact is admitted in the Agreed Statement of Facts at paragraph 17.

8. In cross-examination the Applicant stated with respect to the flight on 21 May 2014 “I made a poor decision to take matters into my own hands and fly the aircraft…. It was a stupid thing to do, and I paid the price for that.” It was further put to the Applicant in cross-examination that it was more than stupid, it was a conscious decision to break the law. The response of the Applicant was that his understanding of applicable aviation regulations was not as good as it is now. The Tribunal accepts this contention that it was a conscious decision to break the law, not to mention stupid. The application for the SFP having been refused in the way that it was, should have left the Applicant in no doubt that Aircraft VH-BQZ could not be flown before it underwent the required maintenance at Temora. The explanation given in the record of interview was disingenuous.

9. An officer of CASA Mr John Costa placed a Detention of Aircraft Notice in Aircraft VH-BQZ when it was present at La Trobe Valley, issued under CAR 288.[21]

   [21] This fact is admitted in the Agreed Statement of Facts at paragraph 18.

   SUSPENSION OF PPL.

10. On 7 July 2015 on the basis of the matters referred to above, CASA suspended the Applicant’s PPL[22] for a period until:

    (a)three months had passed from the date of the commencement of the suspension; and

    (b)the Applicant had undertaken and passed the PPL flight test conducted by or under the supervision of a CASA officer.

    [22] The “DECISION TO SUSPEND PRIVATE PILOT LICENSE-AEROPLANE CATEGORY ARN 755667"  made on 7 July 2015 and signed by the Executive Manager Operations (“the Suspension Notice”) is part of document T 66 of the T documents.

11. The decision to suspend the Applicant’s PPL followed a process being undertaken by CASA. He was served with a Show Cause Notice on 30 October 2014,[23] a response to that notice was provided by him to CASA on 27 November 2014,[24] and he then participated in a show cause conference with CASA officers on 15 December 2014 which has been previously referred to.

    [23] The “Show Cause Notice” of 30 October 2014 described as "NOTICE OF PROPOSED ACTION TO VARY, SUSPEND OR CANCEL PRIVATE PILOT LICENSE-AEROPLANE CATEGORY ARN IS 755667" ("the Show Cause Notice") forms part of document T 53 of the T documents. It is a detailed document carefully articulating detailed particulars of the case which CASA considered the Applicant had to answer concerning the author’s consideration whether to recommend to a delegate of CASA that his PPL be varied, suspended or cancelled. Amongst other things, under the heading "FACTS AND CIRCUMSTANCES" it identifies the "Incident 1 December 2013", the "Incident on 17 April 2014", the "Application for Special Flight Permit", the "Incident 21 May 2014", the "Interview on 27 May 2014" and "Matters arising out of investigation". It then provides "GROUNDS FOR VARIATION, SUSPENSION OR CANCELLATION" and invites the Applicant to "SHOW CAUSE" and attend a "SHOW CAUSE CONFERENCE" (which he subsequently did, as previously noted in these reasons.)

    [24] Document T 58 of the T documents.

12. The Suspension Notice is a detailed document consisting of nine pages. It is referred to in its entirety for its full force and effect. It provides extensive particulars of the “Facts and Circumstances”[25] together with the “Grounds for Variation, Suspension or Cancellation” relied upon by CASA in deciding to suspend the Applicant’s PPL. Under the heading “DECISION” the following is recorded which the Tribunal considers it is important to reproduce in these reasons;

    “Whilst I am satisfied that the grounds specified in sub regulations is 269 (1) (a), (c) and (d) of the CAR are made out, I am satisfied in the circumstances that a period of suspension of your PPL will be sufficient to remind you of the need to exercise greater care and diligence in your flying activities and of the need for strict compliance with aviation regulatory requirements. I am also satisfied that the suspension will improve your attitude to aviation safety with the result that CASA can be satisfied that there is little likelihood of a repeat of the conduct particularised above in this notice.”

    [25] Each of the incidents identified in the Show Cause Notice are repeated in detail together with matters arising from the "Interview on 27 May 2014", "Matters arising out of investigation" and "Your response to the Show Cause Notice".

13. Whilst the language of this paragraph speaks for itself it was a clear and unequivocal warning to the Applicant to improve his overall performance in aviation terms; concerning flying activities and the obligation to strictly comply with regulatory requirements. He must also have understood from this warning that any subsequent infractions in his flying activities and failure to comply with aviation regulatory requirements would have significant consequences for him. It must also be said in fairness to the author of the document that it expressed his satisfaction that a suspension would mean that there would be little likelihood of repeat breaches of the applicable CAR.

14. The Applicant completed the required examination on 14 December 2015.

15. On 24 December 2015, CASA lifted the suspension of the Applicant’s PPL. In CASA’s notice lifting the suspension, the Applicant was informed that the matters referred to in the Suspension Notice would be taken into account should the Applicant again come to CASA’s attention for contravening aviation legislation.[26]

    [26]  This fact is admitted in the Agreed Statement of Facts at paragraph 21. The "DECISION TO LIFT SUSPENSION OF PRIVATE PILOT LICENSE-AEROPLANE CATEGORY ARN 755667" ("the Decision to Lift the Suspension") is document T 83 of the T documents.

16. It is also appropriate to repeat a paragraph of the Decision to Lift the Suspension in these reasons. The last paragraph states:

    “CASA considers that your successful completion of the required examination, along with the period of reflection resulting from the suspension of your license will improve your attitude to safety and has re-established your fitness to exercise the privileges of your PPL (A) in the wake of the matters referred to in my decision of 7 July 2015. However, you should be aware, that those matters will be taken into account should you again come to CASA’s attention for contravening the aviation legislation.”

17. Once again the contents of this paragraph of the Decision to Lift the Suspension was a clear and unequivocal reminder to the Applicant, if not a warning, of the constant need for vigilance concerning aviation safety and compliance with the applicable aviation regulatory regime. He could have been in no doubt of the need not to incur any further breaches, but also that the matters referred to in the Suspension Notice could be taken into account again if there were any subsequent breaches.

    INCIDENT 21 JANUARY 2017 AND SUBSEQUENT EVENTS.

18. On 21 January 2017, the Applicant flew Aircraft VH-BQZ with a female passenger from Tyabb to Tooradin, Victoria.[27]

    [27] This fact is admitted in the Agreed Statement of Facts at paragraph 22.

19. The Applicant had flown Aircraft VH-BQZ to Tooradin aerodrome no less than on 14 previous occasions between 2006 and 2016.[28]

    [28] This evidence is contained in the pilots logbook, document T 191 of the T documents. In closing submissions Counsel for the Respondent identified each of the dates by reference to each relevant entry in the Applicant's Pilot Logbook. (See transcript pages 391-393 for details of the precise dates concerned. They need not be reproduced in these reasons.)

20. A pilot in command before beginning a flight is required to study all available information appropriate to that flight, such as the Aeronautical Information Publication.[29] This document is published by Air Services Australia and includes, amongst other things, document known as “Enroute Supplement Australia” (“ERSA”). An ERSA contains information relevant to flight planning and to pilots in flight, particularly for those contemplating operations from a particular aerodrome.[30]

    [29] CAR 239 (1).

    [30] The statement of Mr William Cox and the section headed "Pre-Flight Planning" is referred to concerning this matter.

21. There is an applicable ERSA for Tooradin aerodrome.[31] ERSA 1 for Tooradin aerodrome provides that there are restricted operations and prior permission to land from the aerodrome operator is required. ERSA 2 provides further information to pilots about proposed landing places. It specifies that “there is no dead side” of the circuit pattern. This is due primarily to the northern side being available for parachute operations. This makes a joining procedure from overhead unavailable. ESRA 3 states “Do not overfly to N side of RWY 04/22. Join CCTS up wind or downwind.” This means that a joining procedure adopted by entering the circuit midfield crosswind, through a parachute drop zone for runway 04 would be contrary to the ERSA instructions to pilots. The Applicant conceded in evidence that he was aware of the ERSA for Tooradin aerodrome, had checked it from time to time but did not check it before the flight. He stated that he was aware of the parachute drop zone.

    [31] The applicable ERSA for Tooradin aerodrome in January 2017 was in evidence as Exhibit R-4.

22. There was evidence from several witnesses including Ms Green and Mr Miskle that parachute operations were conducted from Tooradin aerodrome on January 2017. This is in addition to the fact that, at the time, other general aviation operations were conducted including what was described by Ms Green in evidence, in particular the adventure flights conducted by the company employing her.

23. At approximately 2.40pm, the Applicant made an inbound radio call with the intention of landing at Tooradin airport. This radio call was also heard by Ms Green the Operations Manager for “Adventure Wings”, who made a witness statement on 15 February 2017, and gave viva voce evidence at the hearing of this application. She had a handheld radio monitoring air traffic radio calls near the Tooradin aerodrome and was walking towards her office when she heard the Applicant’s inbound radio call. This prompted her to look up and observe the direction that the Applicant was flying in. She stated that his aircraft joined the circuit cross wind, was flying through a parachute drop zone over the top of her from the north-west. She was also asked to identify the flight path adopted by the Applicant when piloting Aircraft VH-BQZ on a handwritten diagram. Her description of the flight path adopted by the Applicant was also consistent with the contents of the Prosecution Statement of Facts;[32] in which it was recorded that the active runway at the time of the incident was 22 and Aircraft VH-BQZ was observed to join the circuit midfield crosswind.

    [32] Exhibit A-8.

24. Ms Green’s evidence in several respects was forcefully contested by the Applicant. The challenge to her evidence occurred both in cross examination and from the evidence given by the Applicant whilst he was in the witness box. The Applicant denied flying through the parachute drop zone. He stated that he knew Tooradin, knew the drop zone and didn’t fly through a parachute drop zone at all. He said he did take the natural and quickest line he could from Tyabb, which is almost in line with the 04 runway giving him an approach directly over the top of the 04 runway. When the Applicant’s denial of flying through the parachute drop zone was put to Ms Green on several occasions in cross examination she steadfastly maintained her evidence. In response to further questioning she stated that she observed the Applicant flying through that zone because she was outside of the office at the time and saw it.

25. Another matter that arose in cross examination of Ms Green was a suggestion that she may have heard of or been privy to a conversation with Mr Higgins, who gave evidence later in the hearing, in which he complained about pilots from her company performing low-level aerobatics when they were not endorsed to do so and in the circuit area. She denied these allegations and stated she had never heard of such conversation. The Tribunal prefers her evidence over that of Mr Higgins. Although it must be said Mr Higgins evidence differed from the way it was put to Ms Green. In his evidence Mr Higgins asserted he made a complaint to Ms Green’s partner. The substance of the conversation as recounted by Mr Higgins was not put to Ms Green.

26. The Tribunal found Ms Green to be a credible witness. Her oral evidence was presented consistently with that contained in her statement which was made relatively soon after the events of 21 January 2017. She did not seem to the Tribunal to be a witness who was doing anything other than her best to assist the Tribunal and give her evidence as accurately as she could from her recollection. She was candid at all times. The Tribunal accepts her evidence.

27. The submission of counsel for the Applicant also contended that in some way Ms Green had it in for the Applicant and wanted to say something adverse to him. He contended that perhaps it was because her aeroplane (that of Adventure Wings) had to go around. Counsel properly conceded when probed by the Tribunal that he did not put that proposition to her in cross examination. The decision to go around was of course that of the pilot in command Mr. Taylor. It is a decision that pilots have to make from time to time when assessing prevailing conditions in anticipation of landing.  It does not seem to the Tribunal from observing her in the witness box that Ms Green would react so adversely to such an otherwise relatively routine event involving one of her aircraft. Apart from the observations made about the credibility of Ms Green previously in these reasons, the fact that such a proposition was not put to her does, as was contended by the Respondent, leads the Tribunal to reject the proposition in addition to its findings concerning her veracity.

28. Aircraft VH-BQZ conducted a downwind landing on the grass area beside runway 04.[33]

    [33] This fact is admitted in the Agreed Statement of Facts at paragraph 24.

29. In landing Aircraft VH-BQZ hit several runway lights.[34] There is some uncertainty in the evidence as to precisely how many runway lights were struck (let alone damaged) by Aircraft VH-BQZ when landing. The Prosecution Statement of Facts dated 19 June 2019,[35] which was agreed to by the parties when the Applicant pleaded guilty in the Frankston Magistrates’ Court, states that Aircraft VH-BQZ came into contact with five runway lights. This was also confirmed in paragraph 33 of an Investigation Report by Paul Campbell of 7 June 2017.[36] An aerial photograph of the Tooradin aerodrome contained in the T documents showed four damaged runway edge lights. The Applicant in his Statement of Facts, Issues and Contentions alleged that three landing lights were damaged. In a telephone conversation between the Applicant and an officer of CASA, Tony Cox, on 25 January 2017 the Applicant is recorded as saying that he only hit three runway landing lights and paid for the replacement of those three, and was not aware that he had struck four. Mr Cox stated to the Applicant that based on the evidence in his possession the Applicant had struck four runway lights.[37]  In the show cause conference on 15 January 2018 the Applicant said that he hit three runway lights.[38] On the preponderance of the evidence the Tribunal finds that four runway lights were struck by Aircraft VH-BQZ.

    [34] This fact is admitted in the Agreed Statement of Facts at paragraph 25.

    [35] Exhibit A-8

    [36] Document T 136 of the T documents.

    [37] Mr Cox's note of that conversation is document T 100 of the T documents.

    [38] See lines 35 to 45 of the transcript of the Show Cause Conference at page 973 of the T documents.

30. There was photographic evidence before the Tribunal of damage suffered by concrete pads upon which the runway landing lights were mounted. The Tribunal has no doubt that at least some of the pads suffered damage as a result of the impact with the tail wheel of Aircraft VH-BQZ as it was landing. The extent of the damage to the concrete pads was canvassed in the evidence over some time. One pad had been broken in two. The Tribunal is unable to determine whether the pad in question broke in two as a result of the landing or was already broken. An examination of the photographs of the pad in question reveal a fresh break to a portion of the right-hand side of that broken pad. The Applicant and Mr Higgins gave evidence of observing this this after having walked along the line of landing lights on the grass runway. The Tribunal accepts this aspect of their evidence. The colour appears to the Tribunal to be different and fresh.[39] It is the part of the concrete pad that the Tribunal finds more likely than not was broken on impact with the tail wheel of Aircraft VH-BQZ.

    [39] An examination of the photos at pages 755 and 1377 of the T documents appear to be the photo of the same pad and the one concerned which has been broken in two. There were smaller photographs and evidence, for instance at page 811 of the T documents, (apparently taken on the day of the incident) relied upon by the Respondent to contended that the pad was broken in two on 21 January 2017. From a visual inspection of those photographs of the naked eye the Tribunal was unable to answer the question. The freshness of the damage to a portion of the right hand side of the broken pad in the photos referred to at pages 755 and 1377 was far more obvious to the naked eye.

1. At the time of Aircraft VH-BQZ landing another aircraft, VH-CJE, was approaching the aerodrome to land on runway 22. A further aircraft, being the Commando Skydivers Airvan VH-SXK jump aircraft, was approaching or at the holding point for a departure on runway 22.

2. The aircraft approaching to land on runway 22, VH-CJE, was piloted by Mr Taylor who made a statement to CASA and gave viva voce evidence at the hearing. At that time Mr Taylor was flying what he described as a routine adventure flight. He was at all material times employed as a pilot by Adventure Wings the company of which Ms Green is the Operations Manager.

3. Mr Taylor had, according to his evidence, made a radio call expressing his intention to join overhead and upwind of runway 22. His evidence was that runway 22 was the appropriate runway to use or as he described it was the “duty runway” given the prevailing wind direction. Ms Green described the “active runway” as being runway 22. The Prosecution Statement of Facts as noted earlier, also described the “active runway” at that time as runway 22. Although he did not give evidence, the pilot of the Commando Skydivers Airvan, Mr. Miskle made a statement dated 13 February 2017,[40] in which he observed amongst other things, that at the time of this incident due to the prevailing wind, runway 22 was the most “into wind runway” and was the runway in use for all take-offs and landings.

   [40] The statement of Mr Miskle is document T 105 of the T documents.

4. The Applicant amongst other things, in the course of his evidence contended that one of the reasons he conducted the downwind landing on the grass area beside runway 04 was due to the existence of a crosswind on that day at that time. Neither Mr Taylor nor Ms Green would concede that there was a crosswind as contended for by the Applicant. They acknowledged that on an afternoon such as the one in question, a sea breeze did from time to time if not frequently, blow across the aerodrome at Tooradin. Mr Taylor gave evidence to the effect he could not recall such a sea breeze in a crosswind sense and that 22 was the favoured runway. Ms Green stated there was no crosswind as contended for by the Applicant.

5. The Applicant in his early contact with CASA in January and February 2017 did not mention the existence of a crosswind or that it was a factor in his decision to select runway 04 to land. For instance, in a very lengthy phone call he had with Mr Cox on 25 January 2017 where they discussed the landing, no reference was made to the existence of crosswind.[41] In the show cause conference conducted on 15 January 2018 the Applicant stated that when he was over the top of runway 04 he did assess the windsocks at the aerodrome. He assessed that the windsocks were neutral like a crosswind and it did not appear to him to be favouring any particular runway. He stated that it looked 50/50 to him, so he chose runway 04 because he thought it would be more appropriate for landing on the grass. He then stated in the next portion of that transcript of the show cause conference that the crosswind was stiff hence he tried to negate it by landing on runway 04.

   [41] Mr Cox prepared a lengthy file note of the telephone conversation with the Applicant which was document T 100 of the T documents. The telephone call lasted approximately 40 minutes. In the notes there are several paragraphs recorded concerning the specific details of the "landing incident".

6. The Prosecution Statement of Facts noted that the Applicant landed downwind. There is no reference in that document, which it will be recalled that the Applicant agreed to, to a crosswind or crosswind component, as he asserted in the course of the hearing of this application.

7. On the preponderance of the evidence the Tribunal finds that there was not a crosswind in the way contended for by the Applicant in the course of the hearing of this application. It finds that the prevailing wind direction on the day favoured the use of runway 22.

8. Whilst continuing in the circuit and approach, as Mr Taylor described it, he recalled turning base and final for runway 22 and whilst on his final approach noticed Aircraft VH-BQZ. He described that aircraft as seemingly stranded at right angles “straddling” the grass on the sealed runway at its “Aero Club” end. In cross examination he was invited to draw a diagram of where he observed Aircraft VH-BQZ to be situated. The location of Aircraft VH-BQZ depicted on the diagram was consistent with his oral evidence.[42] He described it as “sort of half” on the grass and “sort of half” on the tarmac but being manoeuvred “to get it out of the way”. From his position he observed the main wheels on the bitumen and the tail of Aircraft VH-BQZ on the grass at an angle to the direction of runway 22.

   [42] The diagram drawn by Mr Taylor was tendered by the Applicant as Exhibit "A-1". The diagram also depicted the location of the buildings at the aerodrome. Mr Taylor also delineated the path he took on his final approach and the initiation of the "go round" procedure.

9. Mr Taylor also stated that he observed an aircraft holding waiting to depart runway 22. This was described by him as a Commando Skydivers jump aircraft (Airvan VH-SXK). He also marked the position of that aircraft on the diagram he drew.[43]

   [43] Exhibit A-1

10. At this time he stated he radioed again to raise the pilot of Aircraft VH-BQZ—which he described as the “stranded aircraft”—and received no reply to such radio call. He then observed someone climbing out of Aircraft VH-BQZ and moving it or trying to push it. He stated the person concerned was obviously trying to clear the area.

11. Mr Taylor concluded that the presence of Aircraft VH-BQZ straddling the grass and the sealed runway as he described it, made his proposed landing unsafe.

12. Given that Mr Taylor had received no reply to the radio call seeking to determine the intentions of the pilot of Aircraft VH-BQZ he initiated a “go around” procedure. Upon completion of a further circuit and approaching again on final he observed that Aircraft VH-BQZ had been moved and was clear of the runway so he landed on the grass left of runway 22.

13. Ms Green both in her statement, and in viva voce evidence, described Aircraft VH-BQZ as straddling the grass and bitumen area of runway 22. She also observed the pilot of that aircraft shut it down and get out.[44] She observed the pilot check the tail end of his aircraft. She further observed the aircraft piloted by Mr Taylor go around, the Commando Skydiver parachute aircraft initially holding and then taking off after Aircraft VH-BQZ had moved.

    [44] Ms Green was searching widely and vigorously cross-examined on this aspect of the evidence. As will be noted later the Tribunal accepts her evidence concerning this matter.

14. The location of Aircraft VH-BQZ as described by Mr Taylor was strongly contested by the Applicant in his counsel’s cross examination of Mr Taylor and indeed, from the evidence of the Applicant himself. The Applicant gave evidence that the location of Aircraft VH-BQZ was not as described by Mr Taylor but some 30 m away to the right-hand side of the bitumen runway 22 on the grass. He said in cross examination that it was at least 30 m from the runway, “a good 30m”.

15. In cross examination, Mr Taylor was asked to “withdraw the word “straddling”. He stated he would not. He also reiterated that the presence of Aircraft VH-BQZ put his plane at risk and that he therefore initiated the go around out of caution.

16. In letters to CASA from the Applicant’s then lawyer Mr Maitland, dated 20 June 2017 and 26 June 2017, it was not stated that the aircraft was 30 m away (or a “good 30m”) to the right-hand side of the bitumen runway on the grass (as the Applicant said in evidence to the Tribunal). The closest it came to resembling his evidence before the Tribunal was in paragraph 9 of the letter from Mr Maitland to CASA of 26 June 2017, where it is stated that the aircraft rolled to a stop on the grass in a straight line. He then exited the aircraft to inspect. In a letter from Mr Maitland to CASA of 30 November 2017 in response to the Show Cause Notice, the contents of the previous correspondence sent by him to CASA in June 2017 was referred to and repeated. No specific reference was made to the location of Aircraft VH-BQZ on landing or that the aircraft was 30 m away (or a “good 30m”) to the right-hand side of the bitumen runway on the grass (as the Applicant stated in evidence to the Tribunal). One would have expected a reference to the precise location of the aircraft to have been made in such correspondence to CASA in the same terms as the Applicant’s evidence to the Tribunal in these circumstances.

17. In the Show Cause conference with CASA on 15 January 2018 the Applicant was asked by his lawyer also present at the interview to provide an explanation of the circumstances of his landing. He did not, in response, state that the aircraft was 30 m away (or a “good 30m”) to the right-hand side of the bitumen runway on the grass (as he did in evidence to the Tribunal).[45] One would have expected him to have given this explanation to CASA during the course of the conference. The explanation he offered was that his aircraft was “parked or stricken” on the runway and that he “just veered off the runway a little bit to the east-west runway just to get off line a bit”. This statement although not precisely according with the evidence of Mr Taylor and Ms Green is more consistent with their version of the events than the one that the Applicant gave in his evidence before the Tribunal. The inconsistency between the explanation the Applicant offered during the Show Cause conference and his evidence to the Tribunal is another reason why the evidence of Mr Taylor and Ms Green is preferred over that of the Applicant on this question.

    [45] The transcript of the Show Cause Conference of 15 January 2018 is document T 161 of the T documents. The portion of the transcript of that conference in which these comments were made by the Applicant is at page 974 of the T documents at lines 10-20.

18. Mr. Miskle, the pilot of the Commando Skydivers Airvan VH-SXK, in his statement made on 13 February 2017, stated that he observed Aircraft VH-BQZ at a complete stop some distance from the threshold on the grass runway. He also stated that “it was completely clear of the sealed runway”. Therefore, he applied full power and took off. He did not observe Aircraft VH-BQZ land so it cannot be established how long it remained in the position when he saw it. He also observed a male in the front seat and a female in the back seat. It is not possible to determine whether, when he made this observation, it was before or after the Applicant had left the cockpit to conduct his initial inspection of the damage to Aircraft VH-BQZ after the landing. Mr Miskle did not give oral evidence before the Tribunal and therefore could not be probed by either party about these observations, and any other relevant matters that might assist the Tribunal assess his account against that of Mr Taylor and Ms Green; or for that matter the Applicant. Therefore, there is an apparent difference or conflict between the evidence of Mr Taylor and Ms Green on the one hand and the somewhat limited evidence from Mr Miskle. The Tribunal prefers the evidence of Mr Taylor and Ms Green due to the temporal uncertainties concerning some aspects of Mr Miskle’s statement referred to and the fact that he did not give evidence at the hearing.

19. In closing submissions counsel for the Applicant submitted that Mr Taylor’s evidence was amongst other things evasive.[46] It was suggested that the Tribunal should prefer the Applicant’s evidence over that of Mr Taylor where their evidence conflicted. The Tribunal does not accept this submission. It does not do so for several reasons. Significantly, in cross examination it was never put to Mr Taylor that his evidence was evasive. His recollection of events was certainly challenged and the Applicant’s version of events put to him. However, he presented as a reliable witness and dedicated pilot. He did not present as one who was prone to evasion, reconstruction or embellishment. His evidence was consistent with a written statement that he made only a few weeks after the relevant events and he left the witness box with his credibility well and truly intact. Also on certain matters his evidence was consistent with that of Ms Green.

    [46] Page 377 of the transcript.

20. It should be observed that in his closing address counsel for the Applicant submitted that Ms Green and Mr Taylor had the facts presented to them so that there were going to be no inconsistencies. Presumably, it is contended that their statements were in some way tailored to suit one another. This specific allegation was not put to either of them, or for that matter, any of the CASA witnesses, if they were otherwise able to give evidence on that topic, which they may not have been. Mr Taylor’s statement was dated 13 February 2017 and as noted earlier Ms Green’s on 15 February 2017. Ms Green gave evidence that she typed her statement and sent it to CASA in draft form. It was returned to her with some suggested changes which she adopted to make a final statement which was the one she signed. Ms Green was asked if she had looked at the statement of Mr Taylor before she prepared hers. She categorically denied that she had looked Mr Taylor’s statement before she prepared hers and had never read it. Mr Taylor was not probed at all in cross examination as to how his statement came into existence. There is no evidence to support this submission and the Tribunal rejects it.

21. Another matter on which some observations should be made in these reasons concerns the fact that the aircraft piloted by Mr Taylor, VH-CJE, was fitted with a camera mounted in the cockpit. Ms Green in her evidence stated that in addition to recording visual images it includes voice recordings of the pilot (this included radio calls). She also observed in response to a question from counsel for the Applicant that it is like a data recorder of the flight. Ms Green also gave evidence that she had viewed the video of the whole flight conducted by Mr Taylor, and during such viewing clearly observed him execute the described go around procedure after observing Aircraft VH-BQZ on the runway.[47] She gave the video of the whole flight to CASA. Given that the video was an exhibit to Ms Green’s statement it is surprising that it was not included in the T documents lodged with the Tribunal by CASA, as required by section 37 of the Administrative Appeals Tribunal Act 1975.[48] Similarly, once the Applicant had been furnished with a copy of the T documents it should have been apparent to him and/or his legal advisers that the video had not been produced. A call for its production or service of a Notice to Produce could have been made at that time. A copy of the video was only furnished to counsel for the Applicant by CASA on the morning of the third day of the hearing.[49] It is also surprising that neither party saw fit to tender the video. They were both able to do so, despite its relatively late production by CASA. This is particularly in the light of Ms Green’s evidence that the video enables the viewer to observe Mr Taylor executing the go around procedure as she described it.

    [47] A CD containing a copy of the footage was exhibited to the witness statement made by Ms Green on 24 February 2017.

    [48] Lest it needs to be said, a CD or video falls within the definition of a "document" contained in section 2B of the Acts Interpretation Act 1901.

    [49] See the transcript at page 381. No explanation was offered to the Tribunal as to why a copy of the video was furnished to counsel for the Applicant at such a late stage of the proceeding.

22. Counsel for the Applicant in his closing submissions invited the Tribunal to draw an adverse inference against the Respondent by reason of the failure to tender the video. The Tribunal will not do so as it was open to the Applicant to tender it if he was inclined to do so, because the tape was “equally available to both parties”. Notwithstanding the extremely late service of the video on the Applicant, one would have expected that if it contained any material that assisted the Applicant it would have been tendered by him at the earliest possible opportunity. Where it is equally open to both parties to call a witness or tender a document, and neither of them do so, it is a matter of common sense that any criticism of one party’s failure to call the witness or tender the document will be cancelled out by the criticism of the other party’s failure to call the witness or tender the document as the case may be.[50]

    [50] See O’Donnell v Reichard [1975] VR 916 at 920 per Sir Oliver Gillard J, and Payne v Parker [1976] NSWLR 191 at 202 per Glass JA. Glass JA observed that if the witness (or presumably a document, as the principle applies to the failure to produce a document as well as call a witness) is equally available to both parties, for example a police officer, generally speaking the principle will not be applied, or perhaps more accurately the conditions for its operation will not be found to exist. Both cases were considering the application of what is known as the rule in Jones v Dunkel (1959) 101 CLR 298.

23. The Applicant gave evidence that the touchdown was normal, but shortly after that he felt something strike the rear of the aircraft. In cross examination he stated that clearly there had been an impact. When it came to a stop he got out and inspected the aircraft to discover that the tail wheel was missing. He did observe that the leaf springs to which the wheel was attached were fully intact.

24. The Applicant taxied Aircraft VH-BQZ to an area of grass adjacent to the Commando Skydivers building. The Applicant shut down the aircraft and moved it to the sealed section of the aircraft parking area.[51]

    [51] This fact is admitted in the Agreed Statement of Facts at paragraph 27.

25. The Applicant did not seek to locate the missing tail wheel after he realised that it was missing. He said in his evidence that he did not wish to disturb the operations there by walking on the active runway in an attempt to locate it. He also gave evidence that he was not comfortable walking up and down a runway with aircraft flying. He thought it could be the job of somebody else. After moving Aircraft VH-BQZ to the sealed area he and his passenger went to a restaurant located at the aerodrome known as “Wings and Fins”.

26. Ms Green in her evidence, which was not challenged in cross examination, stated that she spoke to three local pilots and informed them that Aircraft VH-BQZ had lost, or was likely to have lost, it’s tail wheel. When informed of this fact, those pilots decided to conduct a walk over the runway area in an endeavour to locate the missing wheel. Also of course, they were concerned to recover the wheel to ensure that the runway and movement areas were safe for flying operations. The group who conducted the walk recovered both the sheared off tail wheel and broken glass from the runway lights that had been struck by Aircraft VH-BQZ on landing. The sheared off tail wheel and broken glass from the runway lights were placed in a cardboard box and subsequently provided by Ms Green to a CASA investigator Mr Campbell on 30 January 2017.

27. The Applicant gave a different version of these events to that of Ms Green. He stated that after parking Aircraft VH-BQZ on a grass area he spoke to someone who was present at the office of the parachute operator. The Applicant informed that person of what had happened, that the tail wheel was missing and on the runway. It was the evidence of the Applicant that this person shortly after arranged for an inspection of the runway to be undertaken by walking on it. During this inspection the wheel was located. This version of the events was not put to Ms Green in cross examination. Once again, the Tribunal prefers Ms Green’s version of these events. Ms Green gave evidence that accorded with her statement that was made relatively soon after the events.

1. On or about 5.30pm, the Applicant and his passenger re-entered Aircraft VH-BQZ and took off from Tooradin aerodrome. At the time of take-off, Aircraft VH-BQZ did not have a tail wheel.[52]

   [52] This fact is admitted in the Agreed Statement of Facts at paragraph 28.

2. The Applicant acknowledged that prior to take-off, he was aware that there had been an impact on landing but not that he had struck a concrete slab upon which a runway landing light was mounted.

3. Prior to taking off from Tooradin aerodrome at 5.30pm the Applicant stated that he had undertaken an external examination of Aircraft VH-BQZ, including tugging on the bracing and the empennage. No internal inspection was conducted by him. He decided to take off without having conducted an internal inspection.

4. The Applicant concluded as a result of his external examination that there was “no significant damage” other than what he saw. When probed he stated that he did not conduct an internal inspection before taking off because at the time he didn’t believe it was warranted. This assessment he stated was based upon what he called his “practical experience”. He also relied upon what he called his 15 and 16 exemptions where he felt he was authorised to do maintenance on the aircraft. It was further described by him as some misconception on his part about his authority at the time.

5. He decided to take off and make the return flight to Tyabb without having conducted an internal inspection of Aircraft VH-BQZ, notwithstanding the fact that he was inviting his passenger to travel in the aircraft and that she was reliant upon his skills in his assessment for her safety. The Applicant conceded in cross-examination that this fact made his breach significantly more serious.[53]

   [53] Transcript pages 285 to 287.

6. At approximately 5.50pm, Aircraft VH-BQZ landed at Tyabb aerodrome.[54]

   [54] This fact is admitted in the Agreed Statement of Facts at paragraph 29.

7. Between 21 and 24 January 2017, the Applicant fitted a replacement tail wheel to Aircraft VH-BQZ with the assistance of one of his workers.[55] He described the replacement tail wheel in his witness statement as “temporary”. In his evidence in the witness box he stated that it had come from another aircraft that was being constructed at the time known as a “Kitfox”. From the witness box and in his statement he also explained the reason for putting the tail wheel on the aircraft when he did was so that the aircraft could be pushed around his busy workshop or the hangar in which it was housed. In a letter from his then lawyer Mr Maitland to CASA, on 20 June 2017,[56] it was stated that the temporary tail wheel was fitted to Aircraft VH-BQZ for the purpose of allowing the aircraft to be easily manoeuvred around the hangar pending the installation of an identical replacement tail wheel. In a further letter from Mr Maitland to CASA of 26 June 2017,[57] it was stated that the tail wheel was temporarily fitted for the sole purpose of manoeuvring the aircraft around the workshop. In both letters from Mr Maitland to CASA it was stated that the aircraft was never flown with the temporary tail wheel attached. As misguided as this explanation from the Applicant was, nonetheless, the Tribunal accepts it is genuine.  The Applicant believed that at that time he could fit a temporary tail wheel to the aircraft to enable it to be more easily moved around the hangar. Additionally, he also believed that he could do so notwithstanding that he did not have authority to carry out such work on Aircraft VH-BQZ. Neither the Applicant nor the worker, who fitted the tail wheel concerned, was a LAME.[58]

   [55] This fact is admitted in the Agreed Statement of Facts at paragraph 30.

   [56] Document T 139 of the T documents.

   [57] Document T 140 of the T documents.

   [58] This fact is admitted in the Agreed Statement of Facts at paragraph 30.

8. No entries were made in the Aircraft VH-BQZ’s maintenance release in respect of the damage to Aircraft VH-BQZ on 21 January 2017, nor the fitting of a replacement tail wheel.[59] The Applicant readily conceded this fact in cross-examination.

   [59] This fact is admitted in the Agreed Statement of Facts at paragraph 31.

9. On 24 January 2017 the CASA officer Mr Anthony Cox attended at Tyabb aerodrome in company with three other CASA officers.[60] Prior to his arrival he had been informed that the tail wheel of Aircraft VH-BQZ had broken off when it struck runway lights when making a landing in Tooradin. He went to the runway and observed drag marks from the grass on the far side across the runway leading to the hangar occupied by the Applicant’s business Rotec. The marks went to the rear door of the hangar.[61] He observed Aircraft VH-BQZ in the hangar.

   [60] Anthony Cox is not the same person as another CASA officer Mr William Cox who made a witness statement in the application, and gave viva voce evidence at the hearing. Whilst the statement of Anthony Cox was in evidence, he did not give viva voce evidence at the hearing.

   [61] Paragraph 5 of the statement of Mr Cox, document T 127 of the T documents.

10. When the CASA officers including Mr. Anthony Cox, attended at the Rotec hanger at Tyabb aerodrome on 24 January 2017 they examined the Applicant’s pilots logbook. The relevant pages were photographed and contain no entry for the flights from Tyabb to Tooradin and return on 21 January 2017.[62] The Applicant also admitted this fact in cross-examination.

    [62] Copies of the photograph of the relevant page of the Applicant's pilots logbook were contained in the T documents. For instance, at page 813.

11. There are other matters that occurred or emerged from the visit by CASA officers to the Rotec hangar at Tyabb aerodrome on 24 January 2017.

12. Mr Cox had a conversation with the Applicant when he arrived at the hangar. The substance of the conversation was that Mr Cox asked the Applicant who carried out the maintenance on Aircraft VH-BQZ by fitting a tail wheel after the incident on 21 January 2017. The Applicant replied that he did with the assistance of one of his workers. Mr Cox then asked the Applicant if the worker was a LAME. The Applicant stated “No, but I did the SAAA maintenance course that allows me to maintain the aircraft.” Mr Cox then responded to the Applicant asking him whether he believed he could carry out the maintenance and repair. The Applicant responded “Yes. It’s minor. No different to a flat tyre. I just rang Brian Ham who runs the SAAA course and he said I am good to do it.” Mr Cox enquired of the Applicant whether he fully explained the circumstances to Mr Ham and he responded “Yes I did”. Mr Cox repeated words the effect that the Applicant could not carry out or certify the maintenance described and that it was well outside of Schedule 8. The Applicant repeated that it was no different to a flat tyre.

13. On 25 January Mr Cox telephoned Mr Ham. He repeated the contents of the conversation he had with the Applicant on the previous day. He reiterated that the Applicant stated he was allowed to conduct maintenance on Aircraft VH-BQZ. Mr Ham expressed to Mr Cox that he was not made fully aware of the damage to Aircraft VH-BQZ when speaking to him.

14. It should be noted at this juncture that Mr. Ham is a CASA approved volunteer Maintenance Procedure Course (“MPC”) trainer S/N for the Sport Aircraft Association of Australia (“SAAA”). He is the training coordinator for the Victoria/Tasmania region. The MPC covers 15 topics over two days. It provides education to SAAA members who have constructed what are known as “amateur built experimental aircraft” (“ABE”). The subject matter of the MPC includes responsibility of an owner/operator on how to access rules and regulations, proper recordkeeping, control of logbook entries and understanding maintenance release procedures. The topics have been designed to satisfy the learning outcomes required by the current instrument of authority 15/16. The participants are required to achieve an 80% pass rate in part one, a 45 question open book exam and also carry out a part two practical exercise on logbook and maintenance release entries.

15. Mr Ham was providing tuition when the Applicant attended the MPC conducted by the SAAA on 3 and 4 September 2016. The Applicant completed the course with a pass rate of 91% and received a certificate of attainment. By reason of this high achievement the Applicant must have known precisely what he could and could not do to Aircraft VH-BQZ in terms of maintenance, let alone repair under the applicable regulatory regime, including what was described in Mr. Ham’s evidence as “Pilot Maintenance or Schedule 8 (Civil Aviation Advisory Publication 42ZC-1 (2) (“CAAP 42ZC-1 (2)”).”

16. Mr Ham gave evidence in this matter both by way of a witness statement made on 7 February 2017,[63] and viva voce from the witness box. He recounted receiving what he described as “an urgent phone call” from the Applicant on the morning of 24 January 2017. The Applicant stated that he needed his help. The Applicant recounted that four CASA officers had attended at his hangar at Tyabb aerodrome. He informed Mr Ham that they were likely to take action against him for changing the tail wheel when he was not authorised to do so. He stated to Mr Ham that he could do that work and sign the maintenance release under the provisions applicable to “pilot maintenance”. Mr Ham responded that he meant Schedule 8 and asked why he had to change the wheel. The Applicant explained to him that he had taken a new girlfriend to Tooradin and when he landed he noticed that the tail wheel was broken. He took it off and flew back to Tyabb and put on a new wheel.

    [63] Document T 104 of the T documents.

17. Mr Ham gave evidence that he explained to the Applicant that CAAP 42ZC-1 (2) has 22 items that a pilot can carry out. The first three items identified in that Schedule identify tyres, tubes and bearings which can be serviced or repaired.

18. Approximately one hour later Mr Ham stated that the Applicant telephoned him again. He explained to Mr Ham that CASA were likely to proceed against him for not completing a Maintenance Release. Mr Ham asked why the tail wheel of Aircraft VH-BQZ was broken. The Applicant stated he hit runway lighting and the “king bolt” of the tail wheel assembly was sheared off at the nut when it came into contact with the concrete mounting pad for the runway light.

19. It was during this conversation that Mr Ham explained to the Applicant that any work to remedy the damage caused by this accident was completely outside the scope identified in Schedule 8. Mr Ham further stated in that conversation that he expressed his disappointment to the Applicant that he did not give him all the facts during the first telephone conversation they had. He expressed the same disappointment in a subsequent face-to-face conversation he had on 25 January 2017 when he visited the Applicant at the Rotec hangar in Tyabb.

20. In cross-examination Mr Ham was robustly challenged about his recollection of the conversations with the Applicant. It was specifically put to him that under Schedule 8 the Applicant could replace the tail wheel where it had broken off. Mr Ham denied making such statements.

21. The Applicant in cross-examination, when the contents of Mr Ham’s statement and his evidence were specifically put to him, denied the use of some words, and then in others said he vaguely recalled a conversation, or did not remember using the words concerned. He did not give evidence in specifically the same way as the alternative version of the conversation that was very specifically put to Mr Ham in cross-examination. The Applicant further stated in cross-examination that he contacted Mr Ham as an expert to get his opinion on what he felt might have been his position in relation to the tail wheel and in relation to maintenance in general. He denied misleading Mr Ham. He stated that he was looking to get an honest opinion from him. He stated later in his cross-examination that he told Mr Ham over the phone that the tail wheel had been broken and he wanted his advice on Schedule 8, or any other authority, perhaps 15 or 16.

22. On this question the Tribunal does not accept the evidence of the Applicant. His evidence did shift to some extent and he was relying upon his recollection of events that occurred more than 2 years ago. On the other hand, Mr Ham made his statement comparatively soon after the relevant conversation. He gave evidence that he prepared the statement himself. He presented as a credible, fair-minded, reasonable witness and dedicated aviation professional of many years standing; having been a pilot since approximately 1974, who had no reason other than to give evidence to the best of his ability. Also, there was just no apparent reason why Mr Ham would give advice in the way contended for by the Applicant which was of course, contrary to what the applicable Regulations provided for.

23. A further reason for the Tribunal accepting the evidence of Mr Ham was because he stated that the Applicant told him during the course of the first “urgent phone call” on 24 January 2017, he had flown to Tooradin with his “new girlfriend”. The Applicant denied he had this conversation with Mr Ham. After having made such denial, it was pointed out to the Applicant, by the Tribunal, in the course of his evidence, that it seemed implausible that Mr Ham would have given such evidence unless he had been informed of this fact by the Applicant. The Applicant sought to explain this anomaly away by reference to having “other dialogue” (presumably in later conversations) which was when Mr Ham may have been aware of the fact. The Tribunal cannot accept this explanation. It is speculative. Given the urgent nature of the first phone call and the pressure that the Applicant was under on that day, it is more probable than not, that the Applicant did inform Mr Ham of flying to Tooradin with his companion.

24. By way of completeness it should be noted in these reasons that in the Agreed Statement of Facts the parties admit that on or about 24 or 25 January 2017, the Applicant informed a CASA officer that:

    (a)he had done the SAAA course which allowed him to maintain the Aircraft VH-BQZ; and

    (b)the damage to Aircraft VH-BQZ was minor.[64]

    [64] This fact is admitted in the Agreed Statement of Facts at paragraph 32. The Applicant readily conceded that he had told Mr Cox when they met at Tyabb aerodrome on 24 January 2017 that he had completed the SAA maintenance course.

25. Little more needs to be said about these statements made by the Applicant as admitted by him other than that they were untrue.

26. After 24 January 2017, the Applicant made entries to the Maintenance Release for Aircraft VH-BQZ. The Applicant was not authorised to certify for these entries made in the maintenance release for Aircraft VH-BQZ.[65]

    [65] This fact is admitted in the Agreed Statement of Facts at paragraph 33.

27. Mr Anthony Cox, in his witness statement, records that after 24 January 2017 he was shown a copy of the same Maintenance Release for Aircraft VH-BQZ that he saw at Tyabb Aerodrome on that day. Subsequently, he observed the Maintenance Release contained entries in Part 2 that had not been recorded when he inspected it on 24 January 2017 as previously observed. Two of those entries were dated 21 January 2017 and a repair entry was dated 23 January 2017. The Applicant conceded in his evidence that he made these entries. He stated that he made the entries “retrospectively”.[66] The relevant pages of the Maintenance Release for Aircraft VH-BQZ containing these entries were sent as an attachment to an email from the Applicant to Mr Anthony Cox on 24 January 2017.[67] The contents of that email speak for itself but they were attempting to persuade Mr Cox that the Applicant possessed the capability, qualifications, experience and skills to be able to perform that particular maintenance of that type on Aircraft VH-BQZ.[68] The same contentions referred to in that email were repeated by the Applicant to Mr Cox in a lengthy telephone conversation that they had on the afternoon of 25 January 2017.[69] He contended that he should be able to maintain Aircraft VH-BQZ and carry out what he described as “all the maintenance actions” that he took after the incident on 21 January. He also in this conversation, as noted earlier, incorrectly sought to assert that Mr Ham had indicated that he could also carry out that work.

    [66] He also use the term “retrospectively” in the course of a Show Cause Conference that he held at the offices of CASA on 15 January 2018 (at page 971 document T 161) of the T documents).

    [67] Document T 95 of the T documents. These pages of the Maintenance Release were also reproduced in several other parts of the T documents.

    [68] The Applicant gave evidence to this effect in cross examination at pages 295-296 of the transcript.

    [69] Mr Cox’s file note of that conversation is document T 100 in the T documents.

28. Puzzlingly, and explored by counsel for CASA in cross-examination, the Applicant in a letter sent by his then lawyer Mr Maitland to CASA on 26 June 2017, contended that he held maintenance authority and CASA authority 15 and 16 to carry out the repairs on Aircraft VH-BQZ following the incident on 21 January 2017. The Applicant initially sought to deflect some responsibility to Mr Maitland but then conceded that he most likely saw the letter and gave instructions for it to be sent beforehand. It was another example of the propensity of the Applicant’s evidence to shift, or for him to downplay the gravity of what had occurred. It is also inconsistent with the events and steps that he took following the conversation with Mr Cox on 25 January 2017.

29. The repair entry dated 23 January 2017 made by the Applicant in the Maintenance Release stated “Replace lower tail wheel assembly, including kingpin, fork and wheel. Inspected, all okay.” He was tackled vigorously in cross-examination concerning this entry. In answer to questioning the Applicant conceded that he knew there had been no internal inspection of Aircraft VH-BQZ. He sought to explain this by stating that the entry related solely to him fitting the tail wheel, and, although it may have been a false entry or appear to be a false entry on the Maintenance Release, that was not the way it was intended to be.

30. Mr Punshon in his evidence described the repair entry concerning the tail wheel in the maintenance release as a “clearing endorsement”. He noted, and the Tribunal accepts, that had the Applicant conducted an appropriate inspection he would have observed the damage described in Mr McGilvray’s report of 6 March 2017 and recorded it appropriately in the Maintenance Release. The concern raised by Mr Punshon about such clearing endorsements were that they were misleading and had the potential to endanger other persons who might rely upon them as an indication that the aircraft was cleared, when in fact that was not the case.[70]

    [70] Mr Punshon’s statement at paragraph 67 to 69 in particular is referred to.

31. On 25 January 2017 Mr Anthony Cox as a Delegate of CASA issued a “Direction Under Sub regulation 38 (1) of the Civil Aviation Regulations 1988” concerning Aircraft VH-BQZ[71] (“CASA Direction of 25 January 2017”). The contents of the direction need not be reproduced in full but it required, amongst other things, an appropriate inspection to be carried out to determine if any structural damage had resulted from the impact caused by the failure of the tail wheel assembly pivot shaft, and subsequent loss of the tail wheel assembly in the incident on 21 January 2017 at Tooradin Aerodrome. Inspection was also required to determine if any structural damage or any other damage likely to have been caused during the incident to the axle and wheel assemblies, propeller assembly and the complete aircraft. The notice also required assessment and repair of any damage identified during the inspections and the installation of a replacement tail wheel assembly using approved maintenance data, and to be certified under the applicable CAR. Aircraft VH-BQZ could not be operated until all requirements of the direction had been complied with.

    [71] The Direction is document T 96 of the T documents.

1. The starting point in resolving this difference in position between the parties must be to examine the language of CAR 269 (1) (c) and (d) itself. There is nothing in the language adopted which restricts the decision-maker, being CASA, to one event, one time or otherwise limit itself in reaching the state of satisfaction required in deciding to vary, suspend or cancel a PPL. Indeed, the language of adopted in both those sub regulations is broad in its effect and leaves open to the decision-maker the ability to consider a variety of acts, facts, matters, circumstances or things over any time. It casts a wide dragnet.

2. On a true and proper construction of the language of CAR 269 (1) (c) and (d) it is also necessary to consider the primacy that the Act dictates applies to safety considerations with particular emphasis on preventing aviation accidents and incidents. (As it will be recalled, section 3A of the Act describes these considerations as its “main object”).

3. Therefore, the Tribunal considers on a true and proper construction of CAR 269 (1) (c) and (d) it is open to, and appropriate for, the decision-maker created by the Act namely CASA, (and of course the Tribunal stepping into the shoes of the decision-maker for the purposes of the conduct of this review) to consider all relevant events, circumstances and other evidence concerning them, over several years including the years under consideration in this matter—which are from 17 April 2014 up to and including the conclusion of this hearing—which of course captures the evidence given by the Applicant and all other witnesses from the witness box and in witness statements during the course of the conduct of this application. This is in addition to the extensive documentary evidence tendered during the course of hearing this application.

4. There is, it should be noted by way of completion, comparatively little authority on this question. The Tribunal in Ekinci v CASA[96] considered that it is appropriate when conducting a review such as this to consider the holder of a PPL’s past record of compliance as indicative of the likelihood of their future compliance or non-compliance, together with their respect or lack of respect for the civil aviation legislative regime overall. The Tribunal agrees with this assessment.

   [96] [2014] AATA 424 at [10].

5. For these reasons the Tribunal accepts CASA’s view that it is appropriate to consider the Applicant’s previous regulatory compliance history in determining whether it is satisfied that either or both of the grounds contained CAR 269 (1) (c) and (d) exist.

6. Almost invariably, as is the case in this matter, it will be necessary to apply the same acts, facts and circumstances in determining both whether the Applicant:

   (a)Has failed in his duty with respect to any matter affecting the safe navigation or operation of an aircraft within the meaning of CAR 269 (1) (c); and

   (b)Is not a fit and proper person to have the responsibilities and exercise and perform the functions and duties of the holder of a PPL within the meaning of CAR 269 (1) (d).

   HAS THE APPLICANT FAILED IN HIS DUTY WITH RESPECT TO ANY MATTER AFFECTING THE SAFE NAVIGATION OR OPERATION OF AN AIRCRAFT WITHIN THE MEANING OF CAR 269 (1) (C)?

7. Given the findings earlier in these reasons the Tribunal is satisfied that the Applicant failed in his duty with respect to several matters affecting the safe navigation, or operation of an aircraft, within the meaning of CAR 269 (1) (c). They will be summarised below.

8. Flying without a current Maintenance Release. The Tribunal’s reasons in paragraph 37 above are referred to and repeated. Some further observations about the Applicant’s conduct are also warranted concerning this ground. The regulatory requirements for proper and up to date maintenance that is appropriately recorded is an essential feature of aviation safety. Every pilot knows this, or should know this. It is grossly irresponsible to fly without a current Maintenance Release. Sound aviation practice involves checking and crosschecking. Every competent pilot in the proper discharge of their duties should conduct diligent checks to ensure that a current Maintenance Release is in force before they fly. It is not that hard to do, and is not too difficult a demand; certainly not in the aviation setting, especially given the main objects of the Act being safety, which regulate the issue of a PPL, amongst other things.

9. Flying without a current medical certificate. Once again the Tribunal’s reasons at paragraph 38 above are referred to and repeated. One has to question how the Applicant did not keep his medical certificate current. A pilot has a fundamental obligation to do so. It is also quite disturbing that the Applicant responded to the CASA officer Mr Scrimshaw in the way he did when questioned during the course of the ramp check on 17 April 2014. The Tribunal must conclude that he failed in his duty with respect to a matter affecting safe navigation or operation of an aircraft in flying without being certain that he had a current medical certificate.

10. Flying from Temora to Tyabb and then the Latrobe Valley on 21 May 2014 knowing that the application for the SFP had been refused was indefensible. The observations made earlier in these reasons that it was a conscious decision to break the law, not to mention a stupid act on the part of the Applicant, are repeated. It was a blatant failure or breach of duty with respect to the safe navigation and operation of an aircraft, and something that a competent pilot in command simply would not do.

11. Landing on runway 04 at Tooradin contrary to the prevailing circuit direction of the aerodrome, and therefore in contravention of CAR 166A (1) has been canvassed in these reasons at some length. It was unsafe conduct because it involved the Applicant landing in the opposite direction to prevailing circuit traffic at the aerodrome. It was a manifest breach of duty on the part of the Applicant as pilot in command.

12. Making a downwind landing on the inactive runway (04) at Tooradin aerodrome while other aircraft were in the circuit and manoeuvring to use the active runway, is in contravention of section 20A of the Act and CAR 282 (4) (a). Much has been said about this earlier in these reasons and need not be repeated. It was unsafe conduct in the navigation or operation of an aircraft within the meaning of CAR 269 (1) (c) as he had the potential to pose risks, if not danger, to other aircraft preparing to take off or land on runway 22. It did cause on the evidence, which is accepted by the Tribunal, Mr Taylor’s aircraft to conduct a go around manoeuvre; or as Mr Cox described it, execute a missed approach.

13. Landing off the asphalt surface of runway 04 at Tooradin aerodrome with resulting damage to Aircraft VH-BQZ and to airport infrastructure, is in contravention of section 20A of the Act and CAR 282 (4) (a). There is an extensive consideration of this ground in the reasons above. The Tribunal should observe that it was negligently performed landing and therefore a breach of duty within the meaning of CAR 269 (1) (c). It was not either safe navigation or operation of Aircraft VH-BQZ. It is also somewhat puzzling to the Tribunal that it occurred given the number of previous occasions where the Applicant had landed the same aircraft at the same aerodrome. Additionally, the evidence concerning the day in question showed a defined path in the grass on the runway which should have been visible to the Applicant and enable him to have executed a landing without striking the landing lights and concrete pads on which they were fitted.

14. Taking off from Tooradin aerodrome in Aircraft VH-BQZ when the aircraft was suffering from a major defect and had been subjected to abnormal ground loads following a collision on landing is in contravention of section 20AA (4) (b) of the Act and CAR 133 (1) (d). The reasons earlier on this ground are referred to and repeated. It is useful to reiterate that Mr McGilvray, Mr Dawson and Mr Punshon all agreed that after the aircraft had been damaged when striking the runway lights it should not have been flown until the required inspections, maintenance and repairs had been undertaken. To fly Aircraft VH-BQZ in these circumstances, let alone with a passenger on board, was a failure in the Applicant’s duty with respect to any matter affecting the safe navigation and operation of an aircraft within the meaning of CAR 269 (1) (c).

15. Performing maintenance tasks on Aircraft VH-BQZ between 21 January and 24 January 2017 when he was not authorised to do so, is in contravention of section 20 AA (4) (b) of the Act and CAR 282 (1). Whether or not the tail wheel affixed to the aircraft was temporary, the Tribunal accepts that the Applicant performed a duty or exercised a function without holding the appropriate licence or certificate within the meaning of CAR 282. The Tribunal accepts the evidence of the Applicant that it was a temporary tail wheel for the purposes of assisting moving the aircraft around his hangar. However, it still violated the applicable CAR and had the potential to pose risks for anyone who might be inclined to fly the aircraft as they were unaware of the temporary nature of the tail wheel installation that had been subsequently installed.

16. Failing to promptly enter on Aircraft’s VH-BQZ Maintenance Release concerning the loss of the tail wheel is a contravention of CAR 47. The Applicant did not record that Aircraft VH-BQZ was not airworthy subsequent to it suffering from major damage or a major defect which was not a permissible under serviceability following abnormal flight or ground loads having been imposed on it. The observations above and these reasons are also referred to and repeated. As was emphasised by counsel for CASA, there was the risk that if someone else were to fly the aircraft, other than the Applicant, they would be unaware of the dangers posed. This also has to be looked at in the context of the subsequent entries entered into the Maintenance Release which could give a false impression as to the airworthiness of Aircraft VH-BQZ. At the end of the day it is just not sound aviation practice, and as it was caused by the Applicant, the only conclusion open to the Tribunal is that it was a failure on his part with respect to any matter affecting the safe navigation or operation of Aircraft VHBQZ within the meaning of CAR 269 (1) (c).

17. For these reasons the Tribunal is satisfied that the Applicant, as the holder of a PPL, has failed in his duty with respect to the matters identified affecting the safe navigation or operation of an aircraft.

    IS THE APPLICANT A FIT AND PROPER PERSON TO HAVE THE RESPONSIBILITIES AND EXERCISE AND PERFORM THE FUNCTIONS AND DUTIES OF THE HOLDER OF A PPL WITHIN THE MEANING OF CAR 269 (1) (d)?

18. In several respects the submissions of counsel for both parties on the meaning of the term fit and proper person were the same. The term is not defined within the CAR, nor in the Act. As was accurately observed by a Senior Member Poljak in Grima v CASA (Grima),[97] the concept is informed by the legislative context in which it is found, taking account of such things as the activities which the licence holder will be engaged in, and the ends to be served by those activities.[98]

    [97] [2018] AATA 3737.

    [98] See also Re: Griffiths v Civil Aviation Authority (1994) 34 ALD 554

19. The legislative context when construing and applying CAR 269 (1) (d), as noted earlier in the these reasons, must acknowledge the main object of the Act specified in section 3A, which is to establish a regulatory framework for maintaining, enhancing and promoting the safety of civil aviation, with particular emphasis on preventing aviation accidents and incidents. The primacy of safety considerations and risk prevention is, therefore, at the forefront of the construction and application of the CAR when determining whether or not the grounds exist to satisfy the decision maker that the Applicant is not a fit and proper person to hold a PPL.

20. The leading authority on the proper construction of the term fit and proper person, and what it encompasses, is that of the High Court in Australian Broadcasting Tribunal v Bond (Bond).[99] In a frequently cited passage from that decision Toohey and Gaudron JJ observed:

    “The expression “fit and proper person”, standing alone, carries no precise meaning. It takes its meaning from its context, from the activities in which the person is and will be engaged and the ends to be served by those activities. The concept of “fit and proper” cannot be entirely divorced from the conduct of the person who is or will be engaging in those activities. However, depending on the nature of the activities, the question may be whether the improper conduct has occurred, whether it is likely to occur, where it can be assumed that it will not occur, or whether the general community will have confidence that it will not occur.”

    [99] (1990) 170 CLR 321.

21. Later in the same decision Mason CJ observed that a fit and proper person in the context of the section then being applied must have an appreciation of those statutory responsibilities and discharge them. A licensee who lacks a proper appreciation of those responsibilities or does not discharge them is not, or may be adjudged not to be, a fit and proper person.

22. This approach of Mason CJ in Bond was applied by the Tribunal in Quadrio v CASA [2011] AATA 709 at [67]. The Tribunal observed in the context of construing and applying CAR 269 (1) (d) that it is possible to say that a fit and proper pilot is one who has an appreciation of the statutory responsibilities and one who discharges them. They noted that the requisite enquiry of whether the applicant is a fit and proper purpose focuses upon the fitness and propriety of the applicant exercising the responsibilities, performing the functions and duties of the holder of a PPL. Those responsibilities include observing the interests of the safety of air navigation; not only the interests of pilots, passengers and owners of aircraft, but also the interests of the public at large.[100]

    [100] Counsel for CASA also cited a passage to similar effect from a decision of Re: Griffiths v CASA (1994) AD 554. Such passage observed quite correctly that it is not appropriate to catalogue the responsibilities, functions and duties of a licence holder in any exhaustive fashion. However they do include observing the interests of the safety of air navigation, not only the interests of pilots, passengers and owners of aircraft, but also the interests of the public at large.

23. Counsel for CASA also referred to the decision of Re: Broadbent v CASA,[101] which cited with approval a passage previous decision of the High Court in Hughes and Vale Pty Ltd v NSW (No 2).[102] The passage need not be repeated but it identified several indicia of a fit and proper person in this context. They were said to include honesty, knowledge and ability.

    [101] [1999] AATA 972.

    [102] (1955) 93 CLR 127 at 156-7.

24. As noted previously in these reasons the Applicant’s contentions referred to in paragraph 173 in support of his application to set aside the reviewable decision applied to both of the grounds specified in CAR 269 (1) (c) and (c).

25. CASA developed contentions concerning the grounds specified in CAR 269 (1) (d) which referred to and repeated the submissions made concerning CAR 269 (1) (c) and identified further reasons for finding that the grounds specified in CAR 269 (1) (d) were similarly satisfied. These further grounds relied on by CASA are articulated below:

    (a)The presence of a female passenger in Aircraft VH-BQZ when it took off without a tail wheel from Tooradin aerodrome at 5.30pm on 21 January 2017 reflected ignorance, poor judgement and/or conscious wrongdoing.

    (b)The failure to promptly record the damage to Aircraft VH-BQZ and the fitting of a replacement tail wheel.

    (c)The Applicant made false or misleading statements to CASA officers as previously noted in these reasons on 17 April 2014, on or about 24 and 25 January 2017 and in the letters from Mr Maitland to CASA on 20 and 26 June 2017.[103]

    (d)The Applicant’s attitude towards the investigation as evidenced in his affidavit of 8 February 2018 demonstrated a disregard for compliance with the requirements of aviation legislation. The Applicant showed no insight into his conduct prior to the production of his witness statement and Statement of Facts Issues and contentions of 20 May 2019. It is contended that these documents demonstrate limited insight into his actions.

    [103] As previously noted these facts concerning the correspondence from the Applicant's lawyers on 20 and 26 June 2017 were admitted in paragraph 34 of the Statement of Agreed Facts.

26. These matters relied upon by CASA have been established on the preponderance of the evidence for the reasons given above. In the context of the fit and proper person test they demonstrate several things. They show that the Applicant—certainly until he made his witness statement and gave evidence from the witness box—failed to reflect a proper appreciation of the statutory responsibilities cast upon him as the holder of a PPL under both the Act and the CAR.

27. The pattern of conduct which has been the subject of extensive consideration—both in these reasons and during the course of the hearing—that was engaged in by the Applicant demonstrated that he did not discharge the statutory responsibilities cast upon him as the holder of a PPL under both the Act and the CAR. If anything they demonstrated a propensity for non-compliance. There may be some debate as to whether it is open to a decision-maker to form a view as to the Applicant’s propensity for compliance in a sense contemplated by the rules of evidence but nonetheless a habit demonstrated over some years of non-compliance existed.

28. An added dimension to the consideration of whether or not the Applicant is a fit and proper person within the meaning of CAR 269 (1) (d) were the several instances established on the preponderance of the evidence as long ago as April 2014 to either make false statements to or otherwise mislead the regulator, CASA. The several instances of this conduct on the part of the Applicant in addition to establishing that he lacks a proper appreciation of his statutory responsibilities and does not discharge them also reflect poorly upon his qualities of honesty, knowledge and ability.

29. The Tribunal must also be concerned that the more recent incidents arising out of the 21 January 2017 events at Tooradin aerodrome not only involved several matters that reflected poorly upon the Applicant but came after he had had his PPL suspended in July 2015. It is all the more troubling that the decision to suspend his PPL and the Decision to Lift the Suspension both contained clear and firm warnings to that he needed to exercise greater care and diligence in his flying activities, and of the need for strict compliance with aviation regulatory requirements. The Applicant knew precisely what was required of him in terms of his duties and compliance with statutory requirements. Yet within two years he engaged in several further acts or events, as described in these reasons, in violation of his statutory responsibilities contained in both the Act and the CAR. Several of the matters that have been established in this application by CASA also reflect poorly on his adherence to the highest possible standards of airmanship.

30. The subject of the bizarre 8 February 2018 affidavit and the equally bizarre correspondence that followed it has been canvassed in some detail earlier. Whilst the Applicant must bear responsibility for the contents of that material (which he did and the Tribunal finds he does) the Tribunal does accept his explanation that he was ultimately led along by Charles.

31. It appears that the Applicant became increasingly desperate and probably did not adequately come to terms with the problems that he was facing. It is most unfortunate indeed, that he did not continue to retain Mr Maitland who is a reputable well-known and experienced practitioner in aviation legal matters. Regrettably, and not infrequently people in the position of the Applicant are vulnerable to promises and predictions made by people such as Charles. Some of the things that the Applicant did at the behest of Charles reflect particularly badly on him. However, he has had the opportunity since he has retained competent legal advice including that of Mr McKeown, who is experienced counsel, to reflect carefully on what occurred not only whilst he retained Charles and signed and/or otherwise allowed some nonsensical correspondence and of course the affidavit of 8 February 2018 to be sworn and served, but as a result of that advice and some deep reflection he has come to terms with the predicament he is in and regrets what he did both during the time he retained Charles and beforehand in his dealings with CASA and his conduct at Tooradin aerodrome on 21 January 2017 and the incidence beforehand that have been previously recounted.

1. As to the question of insight into his wrongdoing, the Tribunal finds that the Applicant has, as a result of more recent experiences, come to terms with what he did. This is not to excuse the conduct that he engaged in, or some of the more problematic aspects of his evidence. Aviation is the fulcrum of the Applicant’s life. As noted earlier in these reasons the business “Rotec Aerosport” is his alter ego and his sole source of livelihood for many years. The Applicant gave evidence about how this business developed and acquired various items of specialist equipment and machinery to enable it to undertake its manufacturing operations. It manufactures a variety of radial aircraft engines which are sold not only in Australia, but throughout the world. He is justifiably proud of his achievements in being able to design, manufacture and market these engines in the way that he has. He gave evidence that he is a frequent visitor to airshows in the United States particularly that in Oshkosh, Wisconsin. The Oshkosh airshow in Wisconsin is one of the largest and most famous airshows in the world. The Applicant gave evidence that he has been there every year for the last 20 years. The loss of his license it is fair to say has had a devastating personal impact. It has prevented him from being able to fly his aircraft to domestic airshows which it appears was an important part of his sales promotional activities for the Rotec business. No doubt it has caused him to suffer some level of reputational damage by reason of not being able to attend such airshows and also the fact that the general aviation community appears to have a very effective “grapevine”.[104] It appears to the Tribunal that the cumulative effect on all of this has been for the Applicant to reflect and think very deeply about the consequences of his actions. It must be repeated that although at times his evidence sought to explain away in slightly simplistic terms some of the things he did, overall the Tribunal accepts his evidence that he took a wrong path and deeply regrets it. The time that he has not been able to fly has been the occasion for him to deeply think about his actions, the consequences and the future.

   [104] Mr Higgins in particular gave evidence about there being a "a lot of gossips at the airfield" who had discussed far and wide the predicament that the Applicant was in from time to time. He even went so far as to say that there were several people in the hangar at the aerodrome who were amused that the Applicant was in trouble.

2. On the evidence before it, the Tribunal is satisfied that the Applicant is not a fit and proper person to have the responsibilities and to exercise and perform the functions and duties of the holder of a PPL within the meaning of CAR 269 (1) (d).

   SHOULD THE REVIEWABLE DECISION BE AFFIRMED OR IS THERE ANOTHER CORRECT OR PREFERABLE DECISION?

3. Having established that the grounds contained in CAR 269 (1) (c) and (d) have been satisfied namely that the Applicant has failed in his duty with respect to any matter affecting the safe navigation or operation of an aircraft and 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 the discretion to vary, suspend or cancel his PPL is enlivened.

4. The Applicant, as noted earlier, contends that the correct or proper decision would have been to issue a penalty notice for the events of 21 January 2017 or at worse a suspension for an appropriate period of time. In closing submissions the contention of counsel was that the Applicant has already been punished effectively for the events of 2017 as he has been suspended in effect currently for approximately 14 months.

5. Having considered all the evidence the Tribunal considers that notwithstanding the unfortunate history over some years on the part of the Applicant his position is as was described by Senior Member Poljak in Grima “redeemable”. In the circumstances therefore, the Tribunal considers that as has been described, a lesser regulatory response is appropriate. He has already completed a significant period following the decision to cancel his PPL. As noted earlier, the Suspension Notice and Decision to Lift Suspension were a clear and unequivocal warning to the Applicant to improve his overall performance in aviation terms. These Reasons for Decision amplify that warning to the highest. Any further flippancy or non-compliance on behalf of the Applicant in regards to aviation safety, the Act and the CAR is to be viewed with great severity.

6. In all the circumstances having taken into account all the evidence and submissions before it, the Tribunal considers that a suspension rather than a cancellation is the most appropriate regulatory response in this matter. The suspension will be imposed with certain conditions to be satisfied by the Applicant before his PPL can be restored. Notwithstanding the Tribunal’s findings concerning the Applicant’s appreciation or insight into his behaviour which have been canvassed earlier in these reasons, it is considered that an appropriate regulatory response to address the concerns properly raised by CASA in its submission, would include the approach adopted by Senior Member Poljak in Grima imposing a condition requiring a psychological evaluation addressing the Applicant’s insight into his conduct which led to the making of the reviewable decision. Also given the evidence canvassed earlier in these reasons concerning the Applicant flying with a passenger from Tooradin to Tyabb when  Aircraft VH-BQZ  was not in an airworthy condition, the Tribunal considers it appropriate to impose a condition following restoration of the Applicant’s PPL that until 30 June 2021 he is prevented from carrying passengers.

7. Accordingly, the Tribunal sets aside the reviewable decision and substitutes a decision in the following terms:

   (a)The Applicant’s PPL is suspended until 12 July 2020;

   (b)Prior to reinstatement of the Applicant’s PPL the Applicant must:

   (i)Undertake a minimum of 15 hours of remedial flying training at a flight training school acceptable to CASA. CASA must receive a written report from the flight training school on the standard of the Applicant’s conduct as a pilot during the training period;

   (ii)Undertake and pass a PPL flight test under the supervision of a CASA officer, or an examiner approved by CASA; and

   (iii)Undertake a psychological evaluation by a psychologist acceptable to CASA and provide a psychological evaluation report addressing the Applicant’s insight into the conduct which led to the making of the reviewable decision and the likelihood of there being a repeat of such conduct.

   (c)That every six months until 30 June 2022 the Applicant must furnish to CASA copies of his Pilot Logbook and all relevant pages of the Maintenance Release for Aircraft VH-BQZ.

   (d)That the Applicant is precluded from flying with any passengers from the reinstatement of the Applicant’s PPL until 30 June 2021.

I certify that the preceding 216 (two hundred and sixteen) paragraphs are a true copy of the reasons for the decision herein of R CAMERON SENIOR MEMBER

.....[sgd]...................................................................

Associate

Dated: 13 January 2020

Counsel for the Applicant:	Christopher McKeown
Counsel for the Respondent:	James Emmett
Solicitor for the Respondent:	Tanya Canny