Cole and Civil Aviation Safety Authority

[2004] AATA 1092

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2004] AATA 1092

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No W2000/255, 293, 294

GENERAL ADMINISTRATIVE  DIVISION		)
Re		DARREL MOWBRAY COLE

Applicant

And CIVIL AVIATION SAFETY AUTHORITY

Respondent

DECISION

Tribunal Associate Professor S D Hotop, Deputy President
Mr E Fice, Member

Date18 October 2004

PlacePerth

Decision

The Tribunal affirms:

·     the decision of the respondent, dated 27 June 2000, to cancel the applicant’s Commercial Pilot Licence (Application No W2000/255);

·     the decision of the respondent, dated 21 July 2000, to refuse to reissue an Air Operator’s Certificate to the applicant (trading as “Kookaburra Air”) (Application No W2000/294); and

·     the decision of the respondent, dated 31 July 2000, to cancel the approval of Kookaburra Air’s appointment of the applicant as a Chief Pilot (Application No W2000/293).

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

Deputy President

CATCHWORDS

CIVIL AVIATION – Commercial Pilot Licence – Air Operator’s Certificate – Chief Pilot Approval – flight exceeded flight and duty time limitations prescribed by Part 48 of Civil Aviation Orders – false or misleading written statements in pilot log book – failure to enter on maintenance release total time-in-service of aircraft – commencing flight when aircraft would require maintenance before completion of flight – failure properly to plan flight in relation to available information regarding weather conditions before commencing flight – failure to enter endorsement on maintenance release regarding aircraft undercarriage gear door defect – conducting instrument flying practice when not holding appropriate command aeroplane instrument rating – failure to record flights in flight and duty records – permitting person to pilot aircraft on flight when person did not have prescribed minimum flying time as pilot in command of that aircraft type – applicant contravened provisions of Civil Aviation Act and Civil Aviation Regulations – applicant failed in duty with respect to matters affecting safe navigation or operation of aircraft – applicant not a fit and proper person to hold Commercial Pilot Licence – applicant’s Commercial Pilot Licence should be cancelled – Air Operator’s Certificate not required to be reissued to applicant – approval of appointment of applicant as Chief Pilot should be cancelled – reviewable decisions affirmed.

PRACTICE AND PROCEDURE – Jurisdiction – decision to cancel approval of appointment of person as Chief Pilot a “reviewable decision”.

Civil Aviation Act 1988 (Cth) s 20AB(1), s 27, s 28, s 28BA, s 31 and s 98

Civil Aviation Regulations 1988 reg 43B, reg 47, reg 50, reg 133, reg 172, reg 206, reg 216, reg 239, reg 269 and reg 283

Civil Aviation Orders Section 40.0, Section 48.0, Section 48.1, Section 82.0 and Section 82.1

Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321

Australian National University v Burns (1982) 43 ALR 25

Evans v Friemann (1981) 35 ALR 428

Re Griffiths and Civil Aviation Authority (1994) 34 ALD 554

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

Re Seaview Lord Howe Pty Ltd and Civil Aviation Authority (1995) 38 ALD 422

Re Surf Air and Civil Aviation Authority (1991) 22 ALD 118

Re Taylor and Department of Transport (1978) 1 ALD 312

REASONS FOR DECISION

18 October 2004 Associate Professor S D Hotop, Deputy President
Mr E Fice, Member

Introduction

1.        Darrel Mowbray Cole (“the applicant”) has applied to the Tribunal for review of 3 decisions of the respondent, the Civil Aviation Safety Authority (“CASA”), namely:

·a decision, dated 27 June 2000, to cancel the applicant’s Commercial Pilot Licence (“CPL”) (Application No W2000/255);

·a decision, dated 21 July 2000, to refuse to reissue an Air Operator’s Certificate (“AOC”) to the applicant (trading as “Kookaburra Air”) (Application No W2000/294); and

·a decision, dated 31 July 2000, to cancel the approval of Kookaburra Air’s appointment of the applicant as a Chief Pilot (Application No W2000/293).

2. At the hearing the applicant was represented by Mr J Kitto, solicitor, and CASA was represented by Mr I Harvey of counsel. The Tribunal had before it the statement and accompanying documents (“T documents”) lodged by CASA, in respect of each Application for Review, in accordance with s 37 of the Administrative Appeals Tribunal Act 1975 (Cth) and various documentary exhibits tendered in evidence by the applicant (Exhibits A1-A21) and by CASA (Exhibits R1-R13).  Oral evidence was given by the applicant and by the following additional witnesses: Kathleen Cole and Colin Richards (who were called by the applicant), and Terrence Farquharson, Anthony Baxter, Mark Roper, Glenn Menkens, Gordon Farr, David Sheehan, William Dolby, Richard Koch and Richard Seager (who were called by CASA).  Oral submissions were made by Mr Kitto and Mr Harvey at the hearing and, pursuant to a Direction of the Tribunal, extensive written submissions were subsequently filed by them.

The Factual Background

3.      The relevant background facts, as agreed between the parties and as found by the Tribunal on the basis of the T documents, are as follows.

4.      The applicant first obtained a Private Pilot Licence on 22 August 1990 and was awarded a Night VFR (Visual Flight Rules) Rating on 6 December 1990.  He established a commercial air operation, “Kookaburra Air”, in 1996 and an AOC was issued to him, trading as Kookaburra Air, on 12 February 1996.  That AOC ultimately expired on 31 March 2000.  He obtained a CPL on 12 April 1996 and a Command Instrument Rating on 2 August 1996.  His appointment by Kookaburra Air as a Chief Pilot was approved by CASA on 7 April 1999.

5.      The 3 abovementioned decisions of CASA, which are the subject of the applicant’s Applications for Review, were made on the basis of the following 5 matters:

·     a return flight between Jandakot Airport in Western Australia and “The Granites” goldmine in the Northern Territory conducted by the applicant in Cessna 340 aircraft VH-HCK on 2 December 1999, and his subsequent data entry regarding that flight (“The Granites incident”);

·     a flight from Jandakot Airport to Perth Airport conducted by the applicant in aircraft VH-HCK on 22 January 2000, and a planned flight from Perth Airport to Barrow Island to be conducted by the applicant in that aircraft on that date (“the Jandakot-Perth incident”);

·     instrument flying by the applicant in May/June 1999 whilst not holding a current instrument rating (“the instrument flying incidents”);

·     alleged errors, inconsistencies and false entries in the applicant’s flight and duty records (“the flight and duty records issue”); and

·     certain matters arising in relation to a return flight between Jandakot Airport and Shark Bay in Western Australia by aircraft VH-HCK on 14 July 2000, after the expiration of the applicant’s AOC on 31 March 2000 and the cancellation of his CPL on 27 June 2000 (“the Jandakot-Shark Bay incident”).

“The Granites” Incident – Agreed Facts and Matters for the Tribunal’s Determination

6.      “The Granites” is a goldmine in the southwest corner of the Northern Territory.  In Australian aviation terms, its location is assigned the Air Law code: “YTGT”.

7.      On 1 December 1999, the goldmine urgently required a skilled maintenance crew to be dispatched from Perth, and requested a human resources company, GAV Holdings Pty Ltd, to arrange for the crew to be air-lifted to the site.  Because a  single aircraft large enough to carry all of the crew was not available, GAV Holdings Pty Ltd organised 3 separate aircraft for this purpose, namely, aircraft FWJ piloted by Kevin Worthington, aircraft IGU piloted by Justin Sinclair, and aircraft VH-HCK piloted by the applicant.

8.      For safety reasons, the Civil Aviation Orders (“CAO”) restrict the hours during which a pilot may remain on duty, and they mandate rest periods.  Because the applicant had been on active duty on 30 November and 1 December 1999, he was unable to pilot VH-HCK to The Granites on 1 December 1999 in convoy with the other 2 aircraft engaged on that charter.  In accordance with CAO 48.1, the applicant was unable to resume active duty until midnight on 2 December 1999.

9.      On 2 December 1999, the applicant met his 4 passengers at Jandakot Airport at about 4.00 am.  At about 4.20 am aircraft VH-HCK departed Jandakot for The Granites, via Leonora.  Aircraft VH-HCK arrived at Leonora at about 6.00 am after which the applicant refuelled the aircraft and provided a light breakfast for his passengers before resuming the Leonora – Granites sector of the flight just before 7.00 am.  Aircraft VH-HCK landed at The Granites at 10.15 am where the applicant disembarked his passengers.  At The Granites, the applicant cleaned and refuelled aircraft VH-HCK, and then obtained a lift from the airstrip into the campsite where he had lunch, made some telephone calls, and made brief inquiries as to whether he could pick up a return fare, or whether any other air charter work from that mine site was available.

10.     Finding that there was no requirement for his services, the applicant elected to return to Jandakot and departed The Granites at about 12.30 pm, arriving back in Leonora at 3.30 pm.  At Leonora he again refuelled aircraft VH-HCK and departed for Jandakot, arriving at about 6.05 pm.  He then telephoned his wife, Kathleen Cole, to pick him up from the airport, and attended to the paperwork required by Air Law in relation to the flight.

11.     CASA alleges that the applicant breached Air Law in 3 main areas in relation to the return flight from The Granites on 2 December 1999, as follows:

(a)by making the return flight from The Granites to Jandakot, the applicant substantially breached his flight and duty time limits;

(b)the applicant deliberately attempted to conceal those breaches by making false written entries in the maintenance release document (“MR”) for aircraft VH-HCK and in his pilot log book; and

(c)by conducting the abovementioned flights on 2 December 1999 (and other flights on 7 December 1999), the applicant caused the time before overhaul (“TBO”) period on the engines of aircraft VH-HCK to be exceeded.

[The Tribunal notes that the expression “Air Law” comprises, for the purposes of this case, the Civil Aviation Act 1988 (Cth) (“the Act”), the Civil Aviation Regulations 1988 (“CAR”), and the CAO.]

12.     The applicant denies all of CASA’s allegations but admits that in the MR he mistakenly made the entry for the 2 December 1999 flight against the wrong date, and says that he made this mistake innocently and without the intent to deceive CASA or anyone else.

Allegation (a) – exceeding flight and duty time limits

13.     The applicant’s return flight from The Granites was a private (ie non-commercial) flight in which he was the sole occupant of aircraft VH-HCK.

14.     Subsection 1.3 of CAO 48.1 provides that an operator shall not roster a pilot for a “tour of duty” in excess of 11 hours.  Subsection 1.4 of CAO 48.1 provides that an operator shall not roster a pilot to fly in excess of 8 hours’ flight time in any one “tour of duty”. Subsection 1.3 of CAO 48.0 states:

“… Calculations of flight and duty time limitations made under the provisions of Section 48.1 shall take into account any flight and duty time performed in the course of private operations.”

15.      CASA contends that the application of this provision clearly and obviously required the applicant to take into account the return flight to Jandakot for the purposes of determining the applicant’s total flight time in the relevant “tour of duty”.

16.      The applicant contends that, because the “tour of duty”, as defined in CAO 48.0, had clearly ended with the disembarkation of passengers at The Granites, he was not in breach of Air Law in making the return flight.

17.      The matter for the Tribunal’s determination regarding allegation (a) is whether the applicant, by making the return flight from The Granites to Jandakot, breached the flight and duty time limitations prescribed in Part 48 of the CAO.

Allegation (b) – making false statements in the MR for aircraft VH-HCK and in the applicant’s pilot log book

18.     It is common ground that the MR for aircraft VH-HCK was amended by the applicant as indicated in the following table:

INITIAL ENTRIES  FINAL ENTRIES

Date	Hours [decimal]	Total	Date	Hours [hrs/mins]	Total
18 Aug	1	4431.2	18 Aug	1	4431.2
19 Aug	1	4432.2	19 Aug	1	4432.2
25 Aug	0.4	4432.6	25 Aug	0.4	4432.6
18 Oct	2	4434.6	28 Oct	2	4334.36
29 Oct	8	4442.6	29 Oct	7.35	4342.11
30 Oct	2.08	4444.6	30 Oct	1.48	4343.59
29 Oct	4.7	4449.3	30 Nov	4.42	4348.41
30 Nov	9.7	4456.3	01 Dec	6.57	4355.38
2 Dec	3.2	4459.5	02 Dec	9.48	4365.26
7 Dec	2.57	4462.0	07 Dec	2.17	4367.43
4362.0	4353.43

19.     CASA contends that those amendments were intended by the applicant to conceal the engine time over-runs, and to falsify the MR.  The applicant says that he has never hidden the fact of the amendments, and that he made them to ensure that the MR was truthful and accurate, after discovering earlier inaccuracies.

20. The matter for the Tribunal’s determination regarding allegation (b) is whether the applicant made false statements in the MR for aircraft VH-HCK and in his pilot log book, contrary to reg 283 of the CAR.

Allegation (c) – causing the TBO period on the engines of aircraft VH-HCK to be exceeded

21.     Regulation 39.001 of the Civil Aviation Safety Regulations 1998 provides that CASA may issue an airworthiness directive that requires action to be taken to rectify an unsafe condition that exists, or is likely to exist or develop, in an aircraft or aeronautical product.  Regulation 39.003 prohibits an aircraft from operating if the airworthiness directive has not been complied with.

22.     Airworthiness directive AD/ENG/4 amdt 7 (“AD/ENG/4”) in CAO 106 specifies requirements for the continuing airworthiness of piston engines.  One of the requirements relates to engine overhaul periods, known as the time between overhaul (“TBO”) period.

23. On 27 October 1999, Mr R Ellis, a CASA airworthiness inspector, granted an exemption in respect of aircraft VH-HCK regarding compliance with the TBO period specified in AD/ENG/4, pursuant to reg 42ZS of the CAR.

24.     CASA contends that that exemption was conditional on both of the aircraft’s engines being overhauled within a further period of 27 hours total time-in-service (“TTIS”), or by 25 December 1999, whichever occurred first (T49, p207).

25.     The applicant contends that a previous error on the MR overstating the hours by 114 hours had been made by others, providing an extension of 38.4 hours, not 27 hours as stated by CASA (ie a discrepancy of 11 hours 24 minutes in the applicant’s favour).

26.     The 27 October 1999 extension brought the engine overhaul life to 1530 hours TTIS (engine time) or, if related to the aircraft time-in-service, 4357 hours airframe TTIS.

27.     Prior to the flight on 2 December 1999, the MR had 4456.3 hours airframe TTIS recorded.  The parties agree that this figure was entered in error, but disagree as to the quantum of the error.

28.     CASA contends that the inclusion of the sum of these times shows that, by the end of 7 December 1999, the engines had been flown past their time expired period by 11 hours 23 minutes.  The applicant contends that the engines still had 3 hours and 17 minutes of the granted extension time as at the end of 7 December 1999.

29.     On 14 December 1999, the applicant applied to CASA for a further extension of the TBO to 1640 hours.  By letter dated 20 December 1999, CASA notified the applicant of the grant of an extension to 1640 hours.

30.     By letter dated 2 March 2000, CASA confirmed the holding of a meeting with the applicant, which dealt with his request to include 14 hours TTIS in the aircraft’s MR.  CASA informed the applicant:

“It was appropriate in terms of the engines reaching their overhaul period that the 10 hours should be available to you to use.”

31. The matter for the Tribunal’s determination regarding allegation (c) is whether the applicant caused the TBO period on the engines of aircraft VH-HCK to be exceeded, contrary to reg 133(1)(d) of the CAR.

The Jandakot-Perth Incident – Agreed Facts and Matters for the Tribunal’s Determination

32.     Kookaburra Air was chartered by National Jet Systems (“NJS”) to transport NJS personnel and equipment from Perth Airport to Barrow Island on the morning of 22 January 2000.  The applicant flew aircraft VH-HCK from Jandakot to Perth to pick up the said personnel.

33.     Before cancellation of the flight by NJS when the aircraft arrived at Perth Airport, the applicant had filed flight plans with the Air Traffic Service (“ATS”) for the flights involved.  These showed the planned levels for the flights to be as follows:

(a)     Jandakot to Perth – 1500 feet under the Instrument Flight Rules (“IFR”);

(b)     Perth to Barrow Island – Flight Level 180 (18,000 feet) IFR;

(c)     Barrow Island to Karratha – 5000 feet under the Visual Flight Rules (“VFR”);

(d)      Karratha to Jandakot – Flight Level 180 (18,000 feet) VFR.

34.     After landing at Perth, the applicant was made aware of a defect with the undercarriage gear door prior to flying back to Jandakot on the morning of 22 January 2000.  The applicant then flew the aircraft from Perth International Airport to Jandakot.

35.     The aircraft’s airframe log book records a repair having been carried out on 24 January 2000 on the left-hand main landing gear door actuating bellcrank.

36.     The applicant did not endorse an undercarriage door defect in Part 2 of Maintenance Release 4572, or at any time thereafter.

37.     The matters for the Tribunal’s determination regarding the Jandakot – Perth incident are as follows:

· whether the applicant breached reg 239 of the CAR by not properly planning a flight in relation to the available information where:

–the required planned level for the Barrow Island to Karratha flight under the VFR should have been an “even” flight level plus 500 feet (for example FL 165 (16500 feet) or FL 185 (18500 feet);

–visibility required by Air Law (reg 172 of the CAR) was 8 km clear of cloud by 1,500 metres horizontally and 1,000 feet vertically;

–the forecasts, current for the periods during which the flights were planned, predicted cloud tops to FL 180; the VFR flight required an additional vertical separation of 1,000 feet, generating a need to plan the flight at a minimum of FL 205;

· whether the applicant, by not entering on the MR an endorsement regarding the aircraft undercarriage gear door defect, breached reg 50 of the CAR; and

· whether the aircraft undercarriage gear door problem constituted a “major defect”, within the meaning of reg 47 of the CAR, and, if so, whether the applicant breached reg 47 by not entering on the MR an endorsement regarding the unairworthiness of the aircraft.

The Instrument Flying Incidents – Agreed Facts and Matters for the Tribunal’s Determination

38.     The “Certificates of Ratings” page in the applicant’s pilot log book shows that:

·     the applicant was issued with an instrument rating on 2 August 1996 by Captain Ron Magrath of Ad Astral Aviation, and that rating remained valid until 31 August 1997; Captain Magrath renewed the applicant’s instrument rating on 13 October 1997, and that rating remained valid until 31 October 1998;

·     the applicant did not renew his instrument rating again until 10 June 1999 when he was tested by Ms Trudy Robins, an independent Authorised Testing Officer for the purposes of conducting Command Instrument Ratings;

·     the applicant did not hold a current instrument rating between 31 October 1998 and 10 June 1999.

39.     The applicant’s pilot log book contains the following entries:

·     May 22, 1999, PA30 UOY D Cole (Other pilot or Crew – Blank) YGTG-LEO-JT 6.5 (Multi-Engine Command Night) and 3.0 (Instrument in Flight);

·     May 29, 1999, PA30 UOY D Cole (Blank) YPJT-ABA-YPJT 1.5(Multi-Engine Command Day) and 0.2 (Instrument in Flight); and

·     June 01, 1999, PA30 UOY D Cole (Blank) YPJT-YDLO-YPJT 5.0 (Multi-Engine Command Day) and 0.1 (Instrument in Flight).

40.     The applicant flew those 3 flights pursuant to his Night VFR rating.

41.     Between 31 October 1998 and 10 June 1999, on 3 occasions the applicant recorded flights as “Instrument in Flight” in his log book as follows:

·June 02, 1999, MJ20 NAN D Cole, M Roper YPJT-RTI-YPPH-YPJT(IFR) 0.5 (Single Engine Command Day) and 0.4 (Instrument in Flight);

·June 03, 1999, PA30 UOY D Cole, M Roper YPJT-RTI-YPPH-YPJT 0.5 (Multi Engine Command Day) and 0.4 (Instrument in Flight);

·June 04, 1999, PA30 UOY D Cole, M Roper JT-YPPH-RTI-JT 0.5 (Multi Engine Command Day) and 0.4 (Instrument in Flight).

42.     The applicant contends that he was entitled to record those flights as “Instrument in Flight”, as he had regard to the instruments.

43.     CASA contends that, as the applicant was not the holder of an instrument rating that was in force at the time of those flights, he was not entitled to claim the flight time as being “In Command”.  The applicant contends that the aircraft was flying under the VFR as practice instrument flying pursuant to subsection 2.7 of CAO 40.0.

44.     The matters for the Tribunal’s determination regarding the instrument flying incidents are as follows:

·whether the applicant was entitled to record the flights on 22, 29 May and 1 June 1999 in his personal pilot log book as “Instrument in Flight”;

·whether the applicant was entitled to record the flights on 2, 3 and 4 June 1999 in his personal pilot log book as “Instrument in Flight” and “In Command” if those flights were for IFR training;

·whether the applicant breached s 20AB of the Act and/or reg 283 of the CAR in relation to the abovementioned flights.

The Flight and Duty Records Issue – Agreed Facts and Matters for the Tribunal’s Determination

45. Computerised flight and duty records which the applicant presented to CASA on 20 December 1999 pursuant to a notice under reg 301 of the CAR, with a date range from 1 July 1999 to 17 December 1999 and printed on 19 December 1999, do not correspond with flight times in his pilot log book – for example:

(a)for 28, 29 and 30 October 1999, the applicant recorded flight time in aircraft VH-HCK in his pilot log book, but there is no corresponding entry in his flight and duty records;

(b)for 3, 6 and 17 October 1999, the applicant recorded flight time in aircraft VH-NAN in his log book, but there is no corresponding entry in his flight and duty records;

(c)for 5 October 1999, the applicant recorded 8.6 hours in aircraft VH-FWJ, but there is no corresponding entry in his flight and duty records; and

(d)for 1 September 1999, the applicant recorded flight time in aircraft VH-NAN in his log book, but there is no corresponding entry in his flight and duty records.

46.     The provisions of Part 48 of the CAO relating to the recording of flight and crew duty time require that all flight and crew duty time on a “tour of duty” be recorded.

47.     A comparison between these flight and duty records and those produced by the applicant to Mr Seager, a Flying Operations Inspector with CASA, on 13 December 1999 show the following differences in duty times:

(a)7 December 1999 – difference in duty time of 0.7 hours, with start and finish times varying by 20 and 25 minutes; and

(b)11 December 1999 – 1 hour difference with start and finish times changing by 0.5 hours each.

48. CASA contends that there has been a contravention of reg 216 of the CAR in that the applicant, as the operator, failed to maintain current records of the individual flight times of the members of the operating crews employed by the operator.

49.     The applicant accepts that the abovementioned discrepancies exist but contends that they are the result of a mistake made by the conversion of the applicant’s computer records from “DOS” to “Windows”.

50.     The matters for the Tribunal’s determination regarding the flight and duty records issue are:

·whether the applicant breached Part 48 of the CAO by failing to record the flight times referred to in paragraph 45 above in his flight and duty records;

·whether the applicant breached reg 216 of the CAR as contended by CASA in paragraph 48 above.

The Jandakot-Shark Bay Incident – Agreed Facts and Matters for the Tribunal’s Determination

51.     On 26 June 2000, CASA issued an AOC to Jandakot Flight Centre Pty Ltd authorising it to carry out charter operations and certain aerial work operations in a number of aircraft, including a Cessna 340.

52.     On 14 July 2000, Cessna 340 aircraft VH-HCK was flown from Jandakot to Shark Bay.  Mark Roper, the then Chief Pilot of Jandakot Flight Centre Pty Ltd, flew the aircraft from Shark Bay to Jandakot.  There were 4 passengers on board, being 2 tour group leaders and 2 Japanese tourists.

53.     The tourists were carried by the applicant at the request of Mackella Investments Pty Ltd trading as Skyworx Aviation.

54.     CASA contends that the tourists paid Skyworx Aviation for the flight to Shark Bay (Monkey Mia) and return but that Skyworx Aviation could not carry the passengers on the day of the flight and it arranged with Mrs Cole to do so.  It further contends that the arrangement between Skyworx Aviation and the applicant and/or Mrs Cole was that Skyworx Aviation would retain the price of $1,000 paid by the tourists for the flight and that Mrs Cole and/or Jandakot Flight Centre Pty Ltd would refer some passengers to Skyworx Aviation in the future in a return arrangement.

55.     The applicant contends that he was not aware that the tourists had paid Skyworx Aviation and that taking the passengers was a complete gratuity.  He further contends that neither he nor Mrs Cole or Jandakot Flight Centre Pty Ltd received any benefit whatsoever.

56.     The matters for the Tribunal’s determination regarding the Jandakot-Shark Bay incident are as follows:

·whether the applicant flew aircraft VH-HCK from Jandakot to Shark Bay and thereby breached s 20AB(1) of the Act;

·whether the flight from Jandakot to Shark Bay was a charter flight involving “the carriage of passengers … for … reward”, within the meaning of reg 206(1)(b)(i) of the CAR and, if so, whether the applicant thereby also breached s 27(2) (b) of the Act;

·whether the return flight from Shark Bay to Jandakot was an IFR charter flight and, if so, whether the applicant breached subsection 4.1(b) of CAO 82.1 by permitting Mark Roper to act as pilot in command of the aircraft on that flight when Mr Roper did not have the prescribed minimum flying time as a pilot in command of that aircraft type.

The Evidence and the Tribunal’s Findings

The Granites Incident

57.     On 1 December 1999, Kookaburra Air was engaged to conduct a charter flight to The Granites for the purpose of conveying staff to the mine site.  Although only one aircraft from Kookaburra Air was chartered, two other aircraft from different organisations were also chartered on the same day.  Those two aircraft were piloted by Mr K Worthington and Mr J Sinclair.

58.     Because the applicant had been on duty on 30 November and 1 December 1999, he was not able to undertake the flight on 1 December 1999, as to do so would have breached CAO 48.1.  In order to comply with the CAO, the applicant was unable to resume duty with Kookaburra Air until midnight on 2 December 1999.  The aircraft piloted by Mr Worthington and by Mr Sinclair departed Perth on 1 December 1999 for their respective flights to The Granites.

59.     On 2 December 1999, the applicant, after embarking his passengers at Jandakot, departed for The Granites via Leonora in aircraft VH-HCK at about 4.20 am (WST).  He arrived at Leonora at about 6.00 am and, after refuelling the aircraft, he resumed his flight to The Granites just before 7.00 am and landed at The Granites at 10.15 am.

60.     The applicant had lunch at the campsite and then made some inquiries as to whether or not there were any passengers available for the return flight to Jandakot.  Finding there was none, the applicant departed The Granites at about 12.30 pm, arriving at Leonora at 3.30 pm.  After refuelling the aircraft, he flew back to Jandakot arriving at about 6.05 pm.  He carried no passengers from Leonora to Jandakot.  His total flying time amounted to approximately 9 hours 30 minutes.

61.     On 7 December 1999, Mr R Seager, a Flying Operations Inspector employed by CASA, received a telephone call from Mr Sinclair.  Mr Sinclair told Mr Seager that three aircraft had conducted a charter to The Granites on 2 December 1999.  Mr Sinclair, of course, flew to The Granites on 1 December 1999 and, apparently, stayed overnight.  He was concerned to know how the applicant had flown the flights from Jandakot to The Granites, and return, on the one day, within the rules relating to flight and duty times.  Mr Sinclair was concerned that the applicant was obtaining an unfair commercial advantage by operating in a manner that was inconsistent with CAO 48.1.

62.     Mr D Sheehan, who, in December 1999 was a Flying Operations Inspector employed by CASA, was scheduled to conduct a programmed air safety audit on Kookaburra Air.  Just prior to conducting that air safety audit, Mr Sheehan had a meeting with Mr W James, the District Flying Operations Officer, and Mr Seager.  At that meeting, Mr Sheehan was told about The Granites flight and the information that had been received by Mr Seager.  Mr Seager told Mr Sheehan that, in the course of conducting the air safety audit, he should carefully examine the applicant’s documents and focus his attention around the date 2 December 1999 to see if there was any truth in what had been alleged.  Mr James instructed him to conduct an audit on the AOC.

63.     Mr Sheehan attended the offices of Kookaburra Air on 8 December 1999 and met with the applicant at about 9.00 am.  Although he recalls Mrs Cole also being present at the offices of Kookaburra Air, she did not attend the meeting.  His recollection is that, throughout most of that meeting, only he and the applicant were present.

64.     Mr Sheehan did not raise with the applicant the concerns expressed to him by Mr Seager about a flight to The Granites.  Mr Sheehan said that, because CASA was unsure at that time as to whether or not the incident had taken place, and the information that CASA had could not be substantiated, he approached the matter cautiously and did not accuse the applicant of having conducted The Granites flight.  Nevertheless, he said that he was very mindful, in examining the applicant’s documents, to look for evidence of the flight on 2 December 1999.  He did mention to the applicant that a pilot friend of his had told him that he had heard a radio call from one of his aircraft going to The Granites.  He did not mention a date but was hoping for a response from the applicant about a flight to The Granites.  No such response, however, was forthcoming.

65.     Mr Sheehan requested that the applicant produce maintenance releases, flight and duty time sheets or records, his pilot log book and the flight manifests.

66.     Mr Sheehan said that he found no evidence whatsoever in any of the documents he examined of a flight to and from The Granites on 2 December 1999.  He examined the applicant’s pilot log book and found an entry for 2 December 1999 for a flight from Jandakot to Leonora and return.  Mr Sheehan confirmed that he checked through the pilot log book, going back 6 to 12 months, up to the final entry.  He satisfied himself that he had looked at the final entry in the pilot log book.  He recalled that the final entry was dated 7 December 1999.  He also recalled that the final entry was at the bottom of the page in the pilot log book and he turned the page over and there were no further entries on the subsequent page.  Mr Sheehan also recalled looking at the maintenance release.  He said that he had cross‑checked, looking for evidence of the flight to The Granites on 2 December 1999, but found no evidence of that flight.  Mr Sheehan said that he was also shown a passenger/freight manifest for the Jandakot/Leonora/Jandakot flight on 2 December 1999.  Mr Harvey (for CASA), in the course of Mr Sheehan's examination, directed his attention to another passenger/freight manifest dated 2 December 1999.  That freight manifest had the letters "GWA" on it, indicating the name of the charterer.  It was pointed out that this manifest, under the heading "Sector 1", disclosed details of the flight from Jandakot to Leonora.  The second sector details disclosed a flight from Leonora to The Granites.  Mr Sheehan said that he did not recall being shown that document by the applicant.  He said that his recollection was that the passenger/freight manifest that he was shown only reflected a flight between Jandakot and Leonora, with a 10-hour break, and then a return to Jandakot.  He was certain about his recollection.  Mr Sheehan said that he had a discussion with the applicant about the 10-hour break.  He was familiar with Leonora from time he had spent flying with the police air wing.  That is why he recalled questioning the applicant about the type of rest accommodation that was provided at Leonora.  He said that the applicant told him that the mine site authorities at Leonora supplied him with a room and accommodation.  Mr Sheehan was certain that the discussion was not about rest facilities at The Granites mine site.

67.     At the conclusion of his audit, during which he found no evidence of a flight to The Granites on 2 December 1999, Mr Sheehan reported to his Area Manager, Mr T Farquharson.  He sent Mr Farquharson an e‑mail on 16 December 1999 confirming that he had cross‑checked the applicant’s pilot log book, flight and duty sheet, flight manifest and maintenance release.  He also confirmed that, on 2 December 1999, all the flight records recorded a trip from Jandakot to Leonora, with a return flight later on the same day.  In his e‑mail, Mr Sheehan said that, in checking the maintenance release, he cross‑checked the hours against the applicant’s pilot log book, flight duty sheet and flight manifest, and found that all of the hours corresponded with each other.  He found no evidence of any breach of CAO 48.1.  Furthermore, Mr Sheehan's evidence was that at no time did he tell the applicant to change, amend, alter or fix either the maintenance release or his pilot log book. 

68.     The applicant said that he recalled Mr Sheehan's visit on 8 December 1999.  He recalled that it was an annual scheduled audit.  He said that whatever Mr Sheehan asked for by way of documentation was made available to him.  He agreed that there were no flight and duty records available at that time, but that duty time was taken off what he referred to as the “trip sheets”, which he agreed are the passenger/freight manifests.  The flight and duty records were not available as they had not been downloaded from his computer.  The applicant maintained that he had brought to Mr Sheehan's attention, on 8 December 1999, the fact that he had flown to The Granites.  He said that he had a discussion with Mr Sheehan about the flight to The Granites.  When asked whether there was any record in the maintenance release of a flight to The Granites on that day, the applicant maintained that there was.  He said that the fact that four landings were entered in the maintenance release on that day should have alerted Mr Sheehan to the fact that he went to The Granites.  He also said that the 9.7 hours entered on the line immediately above 2 December 1999, which is for the date 30 November 1999 (see the table in paragraph 18 above), was a record of the 9.7 hours’ flight time to The Granites.  He said that Mr Sheehan brought to his attention an entry of 3.2 hours against the date 2 December 1999 and told him to “fix it".  He said that that is exactly what he did.

69.     Mrs Cole supported the applicant’s evidence about that meeting with Mr Sheehan.  She said that she was present at the audit held on 8 December 1999 and that she was also present when Mr Sheehan and the applicant discussed flight and duty times.  However, in her oral evidence, she said that she was only actually in the room with the applicant and Mr Sheehan briefly.  She said that she was listening from outside the office and could hear from time to time "bits and pieces" of the conversation.  She also said that, when Mr Sheehan was leaving, he looked at the applicant and said "and don't forget and fix it".  She said that she heard Mr Sheehan talking about a flight to The Granites.  She acknowledged, however, that she did not hear the entire conversation.  Under cross‑examination, she also acknowledged that she was not certain what Mr Sheehan was referring to when he said "fix it".

70.     After Mr Sheehan reported back to Mr Seager following the inspection of the applicant’s documents, Mr Seager made further inquiries about a flight by aircraft VH‑HCK on 2 December 1999.  He rang Mr T Evans, the Operations Officer of Great Western.  Mr Evans was also the person who arranged the original charter to The Granites.  Mr Evans confirmed to Mr Seager that aircraft VH‑HCK was one of the aircraft that flew to The Granites with some passengers on 2 December 1999.  Mr Seager then telephoned The Granites mine site and spoke with the security officer who confirmed that aircraft VH‑HCK did fly to The Granites on 2 December 1999 and that he had logged the time in and out for that aircraft.

71.     Mr Seager was now confident that aircraft VH‑HCK had flown to The Granites on 2 December 1999 and so he telephoned Kookaburra Air and spoke with Mrs Cole on 10 December 1999.  Mr Seager told Mrs Cole that he wanted to examine the documents that were presented to Mr Sheehan on his audit. He also asked to see the applicant’s pilot log book.  Because the applicant was absent, Mrs Cole said that she was unable to produce the documents.  After the weekend, the applicant contacted Mr Seager on 13 December 1999.  On the afternoon of that day, the applicant attended Mr Seager's office with a computerised printout of flight and duty times, copies of pages of his pilot log book and a copy of the maintenance release.  The flight time and duty records for 2 December 1999 disclosed 9.9 hours’ flight time and 14.5 hours’ duty time.  According to Mr Seager, both of those times were above the prescribed CAO 48.1 limits.  All of the documents produced to Mr Seager were photocopies and, in particular, the maintenance release appeared to him to have been modified or amended.  For that reason, he asked the applicant to provide to him the original flight and duty time records, his pilot log book and the original maintenance release.  The applicant readily agreed to comply.

72.     When the applicant produced the original pilot log book and maintenance release, Mr Seager noted that amendments had been made in both documents.  He observed that the Jandakot/Leonora/Jandakot entry of 3.3 hours had been amended to read Jandakot‑Leonora‑Jandakot‑The Granites with a “5. something” hours entry.  The entry on the following page, which had previously read “Leonora/The Granites/Leonora”, had been changed to read “The Granites/Leonora/Jandakot — 5.5 hours”.  He described the maintenance release as being covered with a lot of white‑out correction fluid.  He was not shown any passenger/freight manifests at that time.

73.     On 28 January 2000 Mr J Gregory of John D Gregory & Associates, Forensic Document Examiners, conducted an examination of the relevant documents.  The unaltered and altered pages of those documents are as follows:  

Pilot Log book
Original Entries			Amended Entries
Date	Details	Multi-engined Command-Day	Date	Details	Multi-engined Command-Day
30 Nov	YPJT -YLMC - YCAR - YPJT -	4.8	30 Nov	No change	4.75 or 4.70
1 Dec	YPPH - YNWN - WWI - YNWN - YPPH - YPJT	7.0	1 Dec	No change	7.0
2 Dec	YPJT - YLEO - YPJT (Jandakot- Leonora- Jandakot)	3.3	2 Dec	YPJT - YLEO - YTGT (Jandakot-Leonora-Granites)	4.9
7 Dec	YPJT - YPDN - YRBE -YMVH - YPPH - YPJT	2.3	7 Dec	No change	2.3

(Following page of pilot log book)

Pilot Log book
Original Entries			Amended Entries
Date	Details	Multi-engined Command-Day	Date	Details	Multi-engined Command-Day
2 Dec	YGTG - YLEO - YGTG - YLEO (Leonora-Granites- Leonora)	6.6	2 Dec	YGTG -YLEO -  YPJT (Granites-Leonora-Jandakot)	5.0

Maintenance Release 4572
Original Entries			Amended Entries
Date	Hours (decimal)	Total	Date	Hours [hrs/mins]	Total
18 Oct	2.0	4434.6	28 Oct	2.0	4334.36
29 Oct	8.0	4442.6	29 Oct	7.35	4342.11
30 Oct	2.08	4444.6	30 Oct	01.48	4343.59
29 Oct	4.7	4449.3	30 Nov	4.42	4348.41
30 Nov	9.7	4456.3	01 Dec	6.57	4355.38
2 Dec	3.2	4459.5	2 Dec	9.48	4365.26
7 Dec	2.57	4462.0	07 Dec	2.17	4367.43

74.     The applicant’s evidence was that the entry for 2 December 1999 in his pilot log book, after the entry dated 7 December 1999 and on the following page, had been made before Mr Sheehan examined the log book.  He said that Mr Sheehan did not see it because he did not turn the page over.  He also said that he had filled in a number of entries on the morning of 8 December 1999, because Mr Sheehan was coming to inspect his documents.  When asked if it was his practice to put entries in his pilot log book out of chronological sequence, he replied that, if he had his pilot log book with him, he could probably show a dozen other examples. 

75.     The applicant maintained that there was no attempt to hide the trip to The Granites from Mr Sheehan.  He claimed that the correct time for the flight to The Granites was recorded on the maintenance release but under the incorrect date of 30 November 1999.  He said the pilot log book entries are in two parts: the first, dated 2 December 1999, indicating the flight from Jandakot to Leonora and return for 3.3 hours; and the second, the Leonora-Granites-Leonora flight, which is recorded on the following page with a total flight time of 6.6 hours.  He also said that he had filed IFR (Instrument Flight Rules) flight plans, one for the leg Jandakot‑Leonora, and the other from Leonora to Jandakot.  He had not filed a flight plan for the Leonora‑The Granites-Leonora legs because those legs were flown under the Visual Flight Rules (VFR).  He said that he left details of those flights with responsible people at each point of departure.

76.     The applicant also explained that he used a lower case "p" in his pilot log book to designate flights which were private flights as opposed to commercial flights.  He admitted to adding a "p" to the amended second entry in his pilot log book for 2 December 1999.  That was for the flight The Granites‑Leonora‑Jandakot.  He said that he entered the "p" after he spoke with Mr Seager on 13 December 1999.

77.     As for the corrections in the maintenance release, the applicant had considerable difficulty in providing an explanation for those alterations.  He said that the original entry in the maintenance release for 30 November 1999, immediately prior to The Granites flight, was for a flight time of 7 hours.  He said that that entry recorded a return flight from Mount Newman to Jandakot.  He said, however, that that date was incorrect and that the flight actually took place on 1 December 1999.  He then said that, when he got back from The Granites flight, he entered the number "9" and a decimal point before the number "7".  He was unable to explain why he had done that other than to refer to the fact that the total flight time for The Granites trip was about 9.7 hours.  That, however, did not explain why he recorded in the maintenance release on 2 December 1999 a flight time of 3.2 hours.  He agreed that the 3.2 hours was never flown in addition to the 9.7 hours.  His only explanation was that he had been disrupted and had made a mistake. 

78. As previously mentioned (see paragraphs 11-31 above), there are 3 allegations by CASA in relation to The Granites incident which require findings to be made by the Tribunal. First, CASA alleges that the applicant, by making The Granites flight on the one day, exceeded the limitations of flight and duty times prescribed by CAO 48.1. Secondly, CASA alleges that the applicant made false entries in his pilot log book and in the maintenance release, and thereby breached reg 283 of the CAR. Thirdly, CASA alleges that, in making that flight, the applicant exceeded the TBO on both engines fitted to aircraft VH‑HCK, thereby contravening reg 133(1)(d) of the CAR.

Findings regarding the flight and duty time limits allegation

79.     In so far as relevant, CAO 48.0 provides as follows:

“         ...

1.1These Orders shall apply to aerial work, charter and regular public transport service operations unless otherwise stated.

...

1.3The holder of a pilot licence other than a private pilot licence who engages in aerial work, charter, or regular public transport operations, shall be subject to the flight and duty time limitations specified by CASA in Section 48.1 of this Part.  Calculations of flight and duty time limitations made under the provisions of Section 48.1 shall take into account any flight and duty time performed in the course of private operations.

…

3.2Where dead head transportation is not followed by a prescribed rest period and precedes a tour of duty, the period from the commencement of dead head transportation to the conclusion of the tour of duty shall count as tour of duty time.  Where a tour of duty is not followed by a prescribed rest period and precedes dead head transportation, the period from the commencement of the tour of duty to the conclusion of the dead head transportation shall count as tour of duty time for the purpose of calculating the required rest period preceding a further tour of duty.

… ”

In subsection 2 of CAO 48.0, the following relevant definitions appear:

“‘Dead head transportation’ means the period from the time a flight crew member reports for the purpose of making a positioning flight until the positioning flight is completed.

…

‘Flight time’ means the total time from the moment when the aircraft first moves under its own power for the purpose of taking off until the moment it comes to rest at the end of the flight.

‘Reserve time’ means the period during which a flight crew member is required to hold himself or herself available for a tour of duty.

‘Rest period’ means the period during which a flight crew member is relieved of all duties associated with his or her employment.

‘Tour of duty’ means the period between the time a flight crew member commences any duties associated with his or her employment prior to making a flight or series of flights until he or she is finally relieved of all such duties after the termination of such flight or series of flights and includes reserve time at the airport.

…”

CAO 48.1 relevantly provides:

“1.1Each pilot of an aircraft in which the flight crew includes not more than two pilots engaged in other than aerial agricultural operations shall be subject to the limitations specified in these Orders.

1.2A tour of duty or period of reserve time at home shall be preceded by a rest period on the ground of at least:

(a)nine consecutive hours embracing the hours between 10 pm and 6 am local time; or

(b)ten consecutive hours.

...

1.3      An operator shall not roster a pilot for a tour of duty in excess of 11 hours.

1.4An operator shall not roster a pilot to fly in excess of eight hours flight time in any one tour of duty.

…”

80.     It is the applicant’s contention that his tour of duty on The Granites flight ended when he disembarked his passengers at The Granites.  Accordingly, his return flight was private and that is why he marked it with a "p" in his pilot log book.  Because that private flight was outside his tour of duty, he rejected the notion that the return flight was "dead head transportation" which involves the positioning of the aircraft prior to a commercial flight or at the conclusion of such a flight. 

81.     Mr Sheehan said in evidence that he had a lengthy discussion about flight and duty times with the applicant.  Mr Sheehan said that he pointed out to the applicant that, under CAO 48.1, the logging of private flights counted as duty time.  Mr Sheehan made the point that fatigue does not recognise the distinction between private and commercial flights. When it was suggested to Mr Sheehan that only private operations, which occurred during a tour of duty, are subject to CAO 48.1, Mr Sheehan responded that the CAO did not specifically state that.  Although Mr Sheehan did not have a copy of the CAO, and has not operated under Australian regulatory provisions for some years (as he has been based in Malta since leaving CASA in May 2001), he was firm in his recollection that the CAO required all private flights to be included in duty times.

82.     It was submitted on behalf of the applicant that all private flight time within a “tour of duty” is “dutiable”, but that private flight time outside a tour of duty is not “dutiable”.  The Tribunal does not accept the applicant’s interpretation of Part 48 of the CAO.  Subsection 1.3 of CAO 48.0 makes it clear that the flight and duty time limitations set out in CAO 48.1 must take into account any flight and duty time performed in the course of private operations.  It matters not whether the private flying occurred immediately before the commercial flight, in between commercial flights, or immediately after a commercial flight.  If it were otherwise, it would lead to quite absurd results where pilots, following completion of a “tour of duty” in commercial operations, could fly in unlimited private operations without a rest period, and then proceed immediately after that with another tour of duty in commercial operations.  That would defeat the very purpose of subjecting commercial pilots to flight and duty time restrictions.

83.     Having regard to the abovementioned considerations, the Tribunal finds that the applicant’s flight from Jandakot to The Granites, and return, on 2 December 1999 constituted the relevant “tour of duty” and that, by reason of the fact that that tour of duty exceeded 11 hours in duration and the applicant flew in excess of 8 hours’ flight time in that tour of duty, he breached subsections 1.3 and 1.4 of CAO 48.1 by rostering himself as pilot for that tour of duty.

Findings regarding the false log book and maintenance release entries allegation

84. Regulation 283 of the CAR relevantly provides:

“A person shall not make, either orally or in writing, a statement that is false or misleading in a material particular in or in connection with:

(a)…

(aa)a maintenance release under regulation 43; or

(ab)a personal log book; or

(b)…

…”.

85.     The applicant was adamant that no attempt was made to conceal the fact that he flew from Jandakot to The Granites and back on the one day.  His evidence was that he cooperated fully with CASA on the first audit inspection of his documents by Mr Sheehan and that no attempt was made to conceal anything from him.  In fact, the applicant said in evidence that he had discussed The Granites flight with Mr Sheehan.  His evidence is corroborated, at least in part, by Mrs Cole's evidence that she heard some discussion between Mr Sheehan and the applicant about The Granites flight.  However, Mrs Cole acknowledged that she was not present in the office at the time of those discussions but was "eavesdropping" just outside the office and that she did not hear all of the conversation.  Mr Sheehan said that he did mention The Granites but not in the context of the applicant’s having flown to The Granites.  Indeed, Mr Sheehan was firm in his recollection that any mention of the applicant’s having flown to The Granites was avoided as CASA at that time did not have sufficient evidence to support allegations that had been made regarding the applicant’s flight.  According to Mr Sheehan, the only context in which The Granites was mentioned was that Mr Sheehan had said that he had heard from a friend of his that the applicant’s aircraft had been up at The Granites mine site.  This was said, he added, in an attempt to prompt a response from the applicant on the subject, but   no such response was forthcoming from the applicant. 

86.     Mr Sheehan said that he was convinced that, when he examined the applicant’s pilot log book, the maintenance release and the passenger/freight manifest (but not the flight and duty times records because the computerised flight and duty times were not available owing to computer problems that the applicant was having), the only entries in those documents for 2 December 1999 were in respect of a flight from Jandakot to Leonora and return.  In a written report to Mr Seager dated 16 December 1999, Mr Sheehan confirmed that to be the case.  It should be recalled that Mr Sheehan is certain that he was only shown one passenger/freight manifest, that being in respect of the charter contracted by CEV and CME.  That charter, which was run concurrently with the charter to The Granites, involved the carriage of freight to Leonora.  That passenger/freight manifest makes no mention whatsoever of a flight to The Granites.  In fact, CASA claims that it only became aware of the second page of the passenger/freight manifest, which related to the charter by Great Western to The Granites, in the course of the hearing.  The applicant’s explanation for the two passenger freight/manifests was that one reflected the IFR flight from Jandakot to Leonora and return, while the other reflected the VFR flight which was undertaken from Leonora to The Granites and return.  The applicant did not, in the Tribunal’s opinion, give a convincing explanation for dividing his passenger/freight manifests in that way.

87.     It was submitted by Mr Kitto (for the applicant) that Mr Sheehan admitted examining more than one passenger/freight manifest for the 2 December 1999 flight.  Mr Kitto referred to Mr Sheehan being asked, "Did you look at the passenger/freight manifests as well?", to which he answered, "Yes I did".  Mr Kitto also referred to the third paragraph of Mr Sheehan's report of 16 December 1999.  In that paragraph, Mr Sheehan said that he cross-checked the applicant’s flight manifests. Mr Kitto, however, failed to point out that the fifth paragraph of Mr Sheehan's report refers to cross-checking the "flight manifest".  Furthermore, it is abundantly clear from Mr Sheehan's report that he discovered no evidence of a flight to The Granites on 2 December 1999.  Had he done so, he would surely have included it in his report.  The so called VFR passenger/freight manifest has a flight to The Granites clearly endorsed on it.  For these reasons, it is the opinion of the Tribunal that any reference by Mr Sheehan to "manifests", either in his evidence or in his report, was inadvertent.  

88.     Mr Sheehan was also certain that, when he inspected the applicant’s pilot log book on 8 December 1999, it contained only one entry for 2 December 1999, and that was a recording of 3.3 hours for the flight from Jandakot to Leonora and return.  There was one further entry in the pilot log book after 2 December 1999 and that was dated 7 December 1999, but it did not relate to The Granites flight.  The applicant said that, if Mr Sheehan had turned over to the next page in his pilot log book, he would have noted that the balance of the flight had been entered on that page.  Mr Sheehan said that he had looked at that page and that there was no entry there on 8 December 1999.  Furthermore, Mr Sheehan said that the maintenance release also contained an entry on 2 December 1999 of a flight lasting 3.2 hours.  That was consistent with the flight recorded in the applicant’s pilot log book, as well as the passenger/freight manifest.  Accordingly, Mr Sheehan could detect nothing in the applicant’s records that disclosed the flight to The Granites.

89.     When CASA again called for all of the applicant’s documents on 13 December 1999, the applicant produced his pilot log book and a maintenance release which had clearly been altered after Mr Sheehan's inspection.  The 2 December 1999 entry in the pilot log book had been altered to reflect a flight from Jandakot via Leonora to The Granites.  The time for that flight had been altered to reflect the changed route.  The maintenance release had also been significantly altered using white-out correction fluid, and the 2 December 1999 flight time entry had increased from 3.2 hours to 9 hours 48 minutes.  In the Tribunal’s opinion, the applicant’s explanation for these amendments is unsatisfactory.

90.     The applicant said that he had been instructed by Mr Sheehan to “fix up the errors” in his pilot log book.  However, Mr Sheehan denied having said that to the applicant.  In fact, Mr Sheehan's report to Mr Seager, following his inspection, makes no mention of the fact that he had told the applicant to fix up his documents to reflect the trip to The Granites.  To the contrary, although Mr Sheehan conducted his audit with the specific purpose of reporting back to Mr Seager whether there was any evidence of a flight to The Granites, Mr Sheehan stated that he found no such evidence.  It makes no sense, in those circumstances, for Mr Sheehan to have told the applicant to fix up his documents. 

91. The Tribunal regards Mr Sheehan as an entirely credible witness and accepts his evidence. The Tribunal, accordingly, finds that the applicant deliberately attempted to conceal The Granites flight from CASA when it conducted its audit on 8 December 1999. The Tribunal also finds that the applicant, in doing so, breached reg 283 of the CAR in that he made statements in his personal pilot log book, in writing, which were false or misleading in a material particular.

Findings regarding the TBO allegation

92.     When Mr Sheehan conducted his audit of Kookaburra Air on 8 December 1999, he examined the maintenance release for aircraft VH-HCK to determine whether the flight to The Granites was reflected in the entry for hours flown on 2 December 1999.  Mr Sheehan's evidence was that there was no such entry for 2 December 1999, the only entry being for 3.2 hours which reflected the flight from Jandakot to Leonora and return.

93. Regulation 43B of the CAR provides:

“On the completion of flying operations on each day that an aircraft is flown, the owner, operator, or pilot in command must record on the maintenance release the total time‑in‑service of the aircraft on the day.” 

94.     When the applicant purchased aircraft VH-HCK on or about 28 October 1999, both of the engines were due for an overhaul.  However, because the applicant wished to ferry the aircraft back to Perth from Townsville, an extension was granted by Mr R Ellis, a delegate of CASA, to permit the engines to run to a total of 1530 hours total time-in-service ("TTIS") or until 25 December 1999, whichever occurred first.  The effect of that extension was to grant the aircraft a further 27 hours TTIS before the engines had to be overhauled.  Because the TTIS of the aircraft at the time of grant of the extension was 4330.2 hours, the extension of time granted by CASA would require the engines to be overhauled when the aircraft TTIS reached 4357 hours. 

95.     According to the aircraft's maintenance release prior to its being amended by the applicant, the aircraft’s TTIS as at 30 November 1999 was 4456.3 hours.  That figure, of course, is based on the fact that the time recorded for 30 November 1999 was 7 hours’ flight time, and not 9.7 hours which was the alteration made by the applicant after he flew the trip to The Granites.   Although he altered the flight time for that day, he did not add the additional 2.7 hours to the cumulative TTIS.  Had he done so, the TTIS at 30 November 1999 would have been shown as 4459 hours – some 102 hours in excess of that permitted under the extension granted by CASA.

96.     The applicant said that, shortly after he purchased the aircraft on 28 October 1999, he noticed that there was a discrepancy in the TTIS of 100 hours.  That arose because of a transcription error on maintenance release N° 4572.  That maintenance release discloses an aircraft TTIS at issue of 4330.2.  However, the brought forward figure entered on that maintenance release under the section titled "Daily Inspection Certifications and Aircraft Time in Service", is 4430.2.  Despite the applicant’s saying that he recognised the error in October 1999, the cumulative TTIS, after entries had been made on each day the aircraft flew, continued to reflect that error.  Putting aside the 100‑hour transcription error, the maintenance release, before the applicant altered it, disclosed that, prior to the flight to The Granites, the engines had only .7 of an hour remaining before they required overhaul.  Accordingly, the flight to The Granites and return, which involved some 9.7 flying hours, could not be undertaken lawfully in aircraft VH‑HCK.

97.     The applicant, however, said that two further errors had been made.  The first error arose from the extension granted by Mr Ellis on 27 October 1999.  According to the applicant, Mr Ellis first granted an extension of TTIS for the engines to 1700 hours.  The applicant said that Mr Ellis was relying on the old Airworthiness Directive regarding TTIS before an overhaul for those engines.  He informed Mr Ellis that the new Airworthiness Directive limited the TTIS, before an overhaul for those particular engines, to 1400 hours.  Mr Ellis, presumably exercising his discretion, then told the applicant that he would add 10 per cent to the extension of time, which brought the TTIS before an overhaul up to 1530 hours.  However, as the applicant pointed out, 10 per cent of 1400 is 140 hours and, accordingly, the TTIS before an overhaul for those engines should have been noted as 1540 hours.  Therefore, the applicant claimed that he had 10 hours available to him to conduct The Granites flight. 

98.     The second error, according to the applicant, arose from three further errors on previous maintenance releases which, when aggregated, gave him a further 14 hours TTIS.  The applicant said that he endorsed those errors on maintenance release Nº 4572.  He said that those endorsements were annotated on that maintenance release before Mr Sheehan inspected it.  However, Mr Sheehan's evidence was that he did not see any such endorsements on the maintenance release when he conducted his audit on 8 December 1999.  Mr C Richards, a licensed aircraft maintenance engineer engaged by the applicant to conduct maintenance on aircraft VH‑HCK, said that he had undertaken a check of previous maintenance releases shortly after the aircraft was purchased by the applicant.  He said that he discovered an accumulative error of 14 hours TTIS over possibly 12 to 20 maintenance releases.  In Mr Richards' opinion, a pilot or owner of an aircraft, noticing an error on the maintenance release, can himself or herself make a correction to an entry on the maintenance release, the appropriate person to change a maintenance release being the pilot in command of the aircraft.  According to Mr Richards, that could be done in the endorsement sections of the maintenance release.

99.     The applicant also said that he brought the errors in the maintenance release to the attention of Mr W Hines, a licensed aircraft maintenance engineer employed by CASA, on or about 13 December 1999. 

100. In light of the above, it is the Tribunal’s view that the applicant breached reg 43B of the CAR by failing to enter, on the maintenance release, the correct TTIS for the aircraft, following completion of The Granites flight on 2 December 1999. Furthermore, the Tribunal finds that the applicant breached reg 283 of the CAR by making a statement that was false or misleading in a material particular in connection with the maintenance release. The addition of the figure ”9” to the entry for 30 November 1999, without any attempt to adjust the TTIS, indicates that, whenever that alteration was made, and for whatever reason, the TTIS figures were misleading. The situation has not been improved by the alterations made by the applicant subsequent to 8 December 1999. The 100‑hour transcription error, although apparently obvious, ought, nevertheless, only to have been corrected after consultation with CASA. In the Tribunal’s opinion, the 10-hour error claimed by the applicant, as a result of Mr Ellis not correctly adding 10 per cent to 1400 hours, should have been the subject of an application to CASA for a further extension of hours. There was no evidence before the Tribunal that the extension of time granted by CASA was to be anything other than to 1530 hours. Mr Ellis did not give evidence in any form. Similarly, the alleged discovery of the further 14-hour discrepancy in past maintenance releases ought to have been the subject of an application to CASA. In the Tribunal’s opinion, the CAR do not contemplate that aircraft operators or pilots be permitted to make amendments to a current maintenance release because they believe they have detected errors in past maintenance releases. There is no provision in the CAR expressly permitting alterations in such circumstances.

101. It is also the Tribunal’s view that the applicant, as the operator of aircraft VH‑HCK, contravened reg 133(1)(d) of the CAR. He did so when he permitted the aircraft to commence the flight to The Granites at a time when the aircraft would require maintenance before the completion of that flight. Likewise, the applicant also breached reg 133(1)(d) by reason of the flight conducted on 7 December 1999.

The Jandakot-Perth Incident

102.   The applicant said that he received a telephone call in the early hours of the morning, possibly after 1.00 am on 22 January 2000, from an unnamed person on behalf of NJS making inquiries about a charter flight to Barrow Island.  Mrs Cole said that the call was from a person at Great Western.  That company had been asked to conduct a charter flight for NJS but was unable to do so.  The person asked if Kookaburra Air could undertake the charter.  When Great Western was told that Kookaburra Air did have an aircraft available, either the applicant or Mrs Cole was told that NJS would deal directly with them.  A person from NJS did telephone and ask about the cost of a charter, and a short time later that person said that the charter was to go ahead.  Mrs Cole said that it was about 1.45 am when the charter was confirmed.  The applicant experienced difficulties with his computer when he attempted to prepare a flight plan.  He was unable to get the current weather report or any NOTAMs (notices to airmen) applicable for the route from Jandakot to Barrow Island via Perth, where he was to pick up his passengers.  As he was unable to get his computer flight planning system working properly, he "pencilled in ink a couple of figures" on the flight plan for costing purposes and for the purpose of alerting Airservices Australia that he would be leaving Jandakot.  He said that he did so because there was a requirement to notify Jandakot at least 30 minutes prior to departing that airport.    He said that he faxed a brief flight plan to Airservices Australia at about 1.30 am.  He said that, at that time, he only intended to proceed as far as Perth and re‑plan his flight there because he was not aware of what his actual task was to be and he did not have a current weather report.  He did not communicate with Airservices Australia before filing the flight plan to ask for any further information.  He had planned to fly from Jandakot to Perth at 1500 feet under the IFR. 

103.   The applicant acknowledged that he did not have any en route or terminal area weather forecasts and that he was not aware of the meteorological conditions at Barrow Island.  He had not planned for an alternate aerodrome.  As far as his fuel planning was concerned, he said that he had full main and auxiliary tanks, but he did not believe that was sufficient to get him to Barrow Island without landing en route.  He said that it was enough to get him to Carnarvon and back to Perth if necessary.  He had no knowledge of the relevant icing levels en route.  The aircraft he intended to fly, VH‑HCK, was equipped with a weather radar but it was unserviceable.  The area forecasts obtained by CASA from the Bureau of Meteorology for the time the applicant planned to fly to Barrow Island disclosed the presence of thunderstorms along the route with scattered cumulus cloud between 8,000 and 18,000 feet.  There was a forecast of moderate icing in all cloud types predicted at the planned cruising altitude.  A cyclone was threatening the Karratha area at the time. 

104.   The applicant departed Jandakot, having been cleared to fly at 1700 feet directly to Perth.  He said that, upon landing at Perth, as he was taxiing off the runway, he received a call from Perth tower and was told that the charter flight had been cancelled, and he was asked if he would like to return to Jandakot.  He said that he would not, for the reason that it was his practice to check the aircraft after every landing.  He therefore taxied in towards the NJS hangar.

105.   The applicant then went into the hangar and telephoned his wife.  As he was walking back to the aircraft, one of his intended passengers from NJS, Mr G Farr, who was also a licensed aircraft maintenance engineer, pointed out to him that a landing gear door was hanging down under the aircraft.  Mr Farr asked him if that was normal and he said that it was not.  The landing gear door should have been closed and flush with the surface of the wing.  Some discussion took place between the applicant and his intended passengers, including Captain Menkens, who was a pilot employed by NJS.  Captain Menkens said that it was he who told the applicant that they would not be flying in his aircraft.  This was after Captain Menkens became aware of the fault with the undercarriage gear door and also the fact that the aircraft did not have a serviceable weather radar.  The applicant asked Mr Farr if he would have a look at the door and he said that he would.  He had a torch and was able to examine the door.  The applicant accepted from Mr Farr that there was a problem with the undercarriage.  He managed to push the door back up into its normal position and he said that, at that time, he considered that there was no defect.  He said that Mr Farr told him that he could fly the aircraft back to Jandakot safely, as long as he left the undercarriage down.  He then flew the aircraft back to Jandakot with the undercarriage in the extended position.  He did so without first endorsing the maintenance release or making an entry in the aircraft log book.  He said that on his return to Jandakot, when he put the aircraft in the hangar, he took the log book out and put it in the workshop in‑tray and raised a work sheet for the defective undercarriage door.  He said that he positioned jacks under the aircraft, removed the key, and the aircraft was then locked in the hangar.

106.   CASA raised two major concerns about the way the applicant handled this flight.  The first was that the applicant failed properly to plan the flight, having regard to the prevailing weather conditions at that time.  Secondly, CASA was critical of the fact that the applicant did not endorse the maintenance release with the undercarriage defect, and that he commenced a flight in the aircraft when he was aware that maintenance was required to be carried out before any further flight could take place.

Findings regarding flight planning

107. Regulation 239 of the CAR provides:

“(1) Before beginning a flight, the pilot in command shall study all available information appropriate to the intended operation, and, in the cases of flights away from the vicinity of an aerodrome and all IFR  flights, shall make a careful study of:

(a)current weather reports and forecasts for the route to be followed and at aerodromes to be used;

(b)the airways facilities available on the route to be followed and the condition of those facilities;

(c)the condition of aerodromes to be used and their suitability for the aircraft to be used; and

(d)the Air Traffic Control rules and procedure appertaining to the particular flight;

and the pilot shall plan the flight in relation to the information obtained.

(2) When meteorological conditions at the aerodromes of intended landing are forecast to be less than the minima specified by CASA, the pilot in command shall make provision for an alternative course of action and shall arrange for the aircraft to carry the necessary additional fuel.

…”.

108.   The first point made by CASA is that the applicant planned to fly from Jandakot to Perth at 1500 feet.  As the applicant had planned to fly under the IFR, he was required to comply with reg 178(3) which provides that, if an aircraft is flown along a route segment for which a lowest safe altitude has been determined by CASA, the aircraft must not be flown at a height less than the lowest safe altitude.  Mr Kitto referred the Tribunal to a publication entitled “En Route Supplement Australia”.  In particular, Mr Kitto pointed to FAC‑P‑288, paragraph 5, dealing with departures from Jandakot at night.  The departure altitude is said to be 1500 feet.  However, Mr Kitto failed to point out that there is a proviso to the above which requires aircraft to consider alternate departure tracks if the lowest safe altitude is above 1500 feet.  Although the applicant in fact flew at 1700 feet, which is the published minimum safe altitude for the direct route to Perth, Mr Dolby said in evidence that the applicant’s actions demonstrated poor flight planning because, as he did not have a valid area weather forecast at the time he took off, and because the flight was at night, the lowest planning level available was 3000 feet in accordance with Aeronautical Information Publication (“AIP”) 1.7‑6.  According to Mr Dolby, this demonstrated the applicant’s disregard for the regulation.

109.   The applicant said that, in any event, because by the time he got to Perth it was more than one hour since he had notified Airservices Australia of his flight plan, he was required to file another flight plan.  Mr Dolby disagreed and said that the applicant was not required to file another flight plan.  Mr Dolby pointed out that the applicant was only required to update his plan in those circumstances to ensure that, prior to departure, he had the latest information available to be used for the flight.

110. In the Tribunal’s opinion, reg 239 makes it plain that, before a flight, the pilot in command must study all available information appropriate to the intended operation as set out in the regulation. There can be no doubt, even on the applicant’s evidence, that he did not do so. Although he said that he intended to re‑file his flight plan at Perth, his flight commenced at Jandakot and, although that is only a relatively short distance from Perth, he nevertheless failed to comply with the requirements of reg 239. Furthermore, icing conditions had been predicted for the route from Perth to Barrow Island. The applicant acknowledged that aircraft VH-VCK was not fitted with any anti‑icing or de-icing system. Regulation 238 provides that an aircraft shall not take-off for the purpose of making a flight during which the aircraft may fly into known or expected icing conditions unless the aircraft is adequately equipped with de-icing or anti‑icing equipment. It is a fact that the applicant did not embark upon the route to Barrow Island from Perth and therefore he did not breach reg 238. It would appear, however, that he had demonstrated an intention to do so and was only prevented from doing so by the cancellation of the charter.

Findings regarding undercarriage gear door defect

111. Regulation 50 of the CAR relevantly provides:

“Where the holder of the certificate of registration for, or the operator or a flight crew member of, an Australian aircraft:

(a)      becomes aware of the existence of a defect in the aircraft; or

(b)      ...

he or she shall enter on the maintenance release, or other document approved for use as an alternative to the maintenance release for the purposes of this regulation, an endorsement signed by him or her setting out the particulars of the defect or damage, as the case may be. ”

112.   The applicant acknowledges that, after he and Mr Farr examined the faulty landing gear door and he decided that it was safe to fly the aircraft back to Jandakot, he did not endorse the fault in the aircraft's current maintenance release.  He also acknowledged that he did not make an entry in the aircraft log book.  The entry that was made regarding the defect was made by his licensed aircraft maintenance engineer after the aircraft had returned to Jandakot.  The only entry the applicant made was on the work sheet.  Under cross‑examination, the applicant said that, after Mr Farr had drawn his attention to the problem, he thought that the problem could be classified as a defect but not a major defect.  He then became a little more equivocal in his answers and said that he was not assured in his own mind that it was a defect at all.  He said that at no time prior to leaving Perth to fly the aircraft back to Jandakot had he formed a view that the aircraft was suffering from a defect.  He said that he relied on the fact that Mr Farr did not make an endorsement on the maintenance release as confirmation that the aircraft did not suffer from a defect.

113.   Mr Farr said in evidence that, from his point of view, the undercarriage gear door problem did constitute a defect.  Asked if he had formed a view as to whether he should write something on the maintenance release of the aircraft, he replied, "no".  He said that he was not engaged by the applicant in his capacity as a licensed aircraft maintenance engineer to make a formal inspection of the undercarriage gear door.  He said that that would not have been possible in any event since he was at his employer's place of business, and he would have needed his employer's permission to perform maintenance for another aircraft operator.  In his opinion, normally the pilot of an aircraft who identified a defect in the aircraft should write that defect into the maintenance release.  It was also his opinion that the defect would have had a significant effect on the normal operation of the aircraft and it should have been classified as a major defect.

114. It is the Tribunal’s opinion that the obligation to record the defective landing gear door in the maintenance release, as soon as it became apparent, lay solely with the applicant, and that he failed to discharge that obligation. The fact that Mr Farr was a licensed aircraft maintenance engineer does not assist the applicant. Mr Farr was never engaged by the applicant to conduct maintenance on his aircraft. Nor was he in a position to do so, without the express authority of his employer, which he had not obtained. Accordingly, the Tribunal finds that the applicant did breach reg 50 of the CAR.

115. CASA also submitted that the undercarriage gear door problem constituted a “major defect” (as defined in reg 2(1) of the CAR) and that the applicant had also breached reg 47 of the CAR when he flew the aircraft from Perth to Jandakot without entering on the maintenance release an endorsement setting out the facts and stating that the aircraft was unairworthy. On the whole of the evidence before it, however, the Tribunal is not prepared to find that the undercarriage gear door problem constituted a “major defect”, within the meaning of reg 47 of the CAR, and that the applicant breached that regulation.

137.   Although there is a conflict in the evidence regarding who flew the aircraft from Jandakot to Shark Bay, there is no dispute that Mr Roper flew the aircraft on the return flight.  Therefore, even if the Tribunal accepts the applicant’s evidence that he did not fly the aircraft on that occasion, given that, according to Mr Roper, the entire flight took some 4.5 hours, Mr Roper had only about 6.7 hours’ flying time in Cessna 340 aircraft as pilot in command when he commenced the return flight.   He therefore did not meet the minimum requirements set out in subsection 4.1(b) of CAO 82.1.  Permitting Mr Roper to act as pilot in command on that flight in those circumstances, therefore, constituted a breach by the applicant of subsection 4.1(b) of CAO 82.1.

138. Given the conflicting evidence of the applicant and Mr Roper regarding the identity of the pilot in command of aircraft VH-HCK on the Jandakot-Shark Bay leg of that flight, the Tribunal is not prepared to make a finding that the applicant was the pilot in command on that flight and that (his CPL having previously been cancelled) he thereby breached s 20AB(1) of the Act.

Consideration – The Correct and Preferable Decisions

Should the applicant’s CPL be cancelled?

139. CASA submitted that the applicant’s CPL should be cancelled under reg 269(1) of the CAR on any, or all, of the grounds specified in paras (a), (c) and (d) of that subregulation. Regulation 269(1) of the CAR relevantly provides:

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

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

(b)...

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

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

… ”

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

140. The Tribunal has found that, in relation to The Granites incident, the Jandakot-Perth incident, the instrument flying incidents, and the flight and duty records issue, the applicant has contravened a provision of the Act (namely, s 20AB(1)(a)) and various provisions of the CAR (namely, regs 43B, 50, 133, 216, 239 and 283). Accordingly, the ground specified in para (a) of reg 269(1) of the CAR exists in this case.

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

141.   The limitations imposed on commercial pilots by Part 48 of the CAO exist to prevent pilot fatigue and, accordingly, to promote the safety of commercial air operations.  As was stated by Mr Sheehan in his evidence, fatigue knows no boundaries.  That is the reason why commercial pilots are required to take into account any private flying when calculating flight and duty times.  Mr Dolby said in evidence that, in his opinion, the applicant must have been suffering from fatigue on his return flight from The Granites.  Although there was no expert report, and Mr Kitto attempted to down play Mr Dolby's assessment, Mr Dolby said that he based his opinion on the fact that he had attended courses dealing with fatigue management, and that all the indications pointed to the applicant’s being fatigued at the end of that flight to The Granites.  The applicant also referred to fatigue as the reason for making an erroneous entry in the maintenance release following that flight.  Mr Dolby said that, not only had that flight created a major risk to aviation safety and placed the applicant’s life at risk, but the fact that he was prepared to carry passengers on a return charter is cause for even greater concern. 

142.   The Tribunal has no hesitation in accepting Mr Harvey's submission that pilot fatigue can lead to fatal consequences.  The Tribunal has no doubt that the applicant’s action in flying to The Granites and back to Jandakot in one day did compromise air safety even if he flew without passengers on the return flight.  The Tribunal also has no doubt, however, that had the applicant been able to arrange passengers for the return flight he would have carried them.

143.   The fact that the applicant deliberately attempted to deceive CASA regarding The Granites flight (as previously found by the Tribunal – see paragraph 91 above) may reasonably be regarded as indicating that he also set out deliberately to breach Part 48 of the CAO.  Although the applicant said that his understanding of Part 48 of the CAO was that he was not required to take into account private flying time when accounting for flight and duty time in his commercial operations, the Tribunal has little doubt that, because of his initial attempts to hide from CASA the fact that the flight took place, he is aware that that interpretation is incorrect.  Subsection 1.3 of CAO 48.0 clearly and unequivocally states that any flight and duty time performed in the course of private operations must be taken into account for the purposes of CAO 48.1.  By not doing so, the applicant has failed in his duty to operate an aircraft safely. 

144. The applicant’s conduct in relation to the TBO allegation regarding aircraft VH-HCK (see paragraphs 92-101 above) was also, in the Tribunal’s opinion, unacceptable. Although Mr Richards attempted to downplay the significance of the overrunning of the time between the overhaul of the aircraft engines by suggesting that the engines were not unsafe even if they were overdue for overhaul, the Tribunal prefers the evidence of Mr R Koch who is a Team Leader (Airworthiness) employed by CASA. Mr Koch stated that, because the engines on aircraft VH‑HCK were fuel‑injected, turbo‑charged, 520 cubic inch capacity, 310 horsepower, reciprocating piston engines, the operational stresses and wear on internal working parts call for a close inspection of all parts of the engine at specific intervals. He also said that a failure to detect worn or defective parts might cause premature failure of the engine. According to Mr Koch, because the applicant was aware that he needed an extension of the TBO before conducting any further flights in VH-HCK, he was required by reg 47 of the CAR to endorse the maintenance release and declare that the aircraft was not airworthy. It was, in the Tribunal’s opinion, unacceptable for the applicant simply to alter the maintenance release regarding the 100‑hours transcription error and the 14‑hours error, which he said that he and Mr Richards discovered, and to fly the aircraft knowing that, according to the TTIS on the maintenance release, the engines had been over‑flown. It was not until 14 December 1999, after both engines had been over‑flown, that the applicant applied for a further extension of the TBO to 1640 hours. Although, as it turned out, the extension was granted, it was only granted after an inspection of the aircraft engines revealed that it was safe to grant the extension. The fact that the extension was ultimately granted does not, in the Tribunal’s opinion, excuse the applicant’s conduct prior to seeking the extension.

145.   The applicant’s planning of the flight from Jandakot to Barrow Island on 22 January 2000 was, in the Tribunal’s opinion, manifestly inadequate.  It is of considerable concern to the Tribunal that the applicant was proposing to embark upon a flight without having obtained the appropriate weather reports and, in particular, route forecasts and terminal weather forecasts.  This is even more significant when one considers that he was flying an aircraft not fitted with anti‑icing or de‑icing equipment.  As it turned out, icing was predicted at the altitude which he planned to fly from Perth to Barrow Island.  Furthermore, the applicant’s aircraft did not have a serviceable weather radar and there were thunderstorms predicted along his planned route.  Although he said that he intended to update his flight plan at Perth, given his willingness to take off from Jandakot without proper weather information in severe weather conditions, the Tribunal has grave doubts that he would have, in fact, updated his flight plan.  In the Tribunal’s opinion, the planning aspects of this flight disclose exceedingly poor airmanship on the part of the applicant and demonstrate that he is, as Mr Harvey described him, "a risk-taker". As previously found by the Tribunal (see paragraph 110), the applicant failed to comply with reg 239 regarding the planning of that flight.

146.   The applicant’s handling of the aircraft undercarriage gear door problem at Perth Airport on that occasion was also, in the Tribunal’s opinion, most unsatisfactory.  The applicant, throughout his evidence, was reluctant to describe the faulty undercarriage gear door as a defect.  Mr Farr had no such difficulty and recognised that an endorsement should have been made on the maintenance release immediately.  Had that been done, the aircraft would have been unserviceable and the applicant could not have flown it back to Jandakot for repairs without CASA approval.

147.   The applicant, in explaining his actions, attempted to deflect any criticism from himself to Mr Farr, who happened to be a licensed aircraft maintenance engineer.  First, he said that the undercarriage gear door problem could not have been a defect because Mr Farr did not make an endorsement on the maintenance release.  This was despite the fact that Mr Farr was merely an intending passenger and certainly did not work as a licensed aircraft maintenance engineer for the applicant.  Secondly, he said that Mr Farr told him that the aircraft was safe to fly back to Jandakot, provided that the landing gear was not retracted.  Mr Farr, in cross‑examination, said that the aircraft could be flown with the landing gear down without any adverse effect on it, but that special approval would be required for doing that.  He also said that he had seen aircraft ferried in that way but that, when an aircraft is ferried with the gear down, ground locks are generally fitted to the undercarriage and the landing gear selector lever has to be baulked or placarded so that the pilot does not inadvertently grab the lever and retract the undercarriage.  These are vastly different circumstances from those prevailing during the flight undertaken by the applicant in returning the aircraft to Jandakot with the landing gear extended.  The applicant did not have approval for a ferry flight and he took none of the safety precautions that normally would be taken for such a ferry flight.  The applicant was also asked in cross‑examination whether he had available any performance data for his aircraft in the event of an engine failure on take-off with the landing gear extended.  Eventually, he conceded that there were no performance data of which he was aware.  In the Tribunal’s opinion, until it could be established that the aircraft could climb away safely immediately after take-off on one engine with the landing gear extended, it was not safe to fly the aircraft in that configuration.

148.   The applicant failed to endorse the maintenance release with the defect.  That would have prevented the aircraft from being flown before the defect was rectified, or permission was given to ferry the aircraft to Jandakot under controlled conditions.  By electing instead to fly the aircraft back to Jandakot, he risked inadvertently retracting the landing gear on take-off from Perth, either because of some distraction, a failure in some other system in the aircraft, or because he was unable to establish a safe rate of climb on one engine at his present weight with the gear extended following an engine failure on take-off.  Had he retracted the gear inadvertently, there was a very real risk that it could not be extended again to allow for a safe landing.  Again, as Mr Harvey submitted, this is evidence of unacceptable risk‑taking by the applicant.

149. The applicant’s attitude towards recording instrument flight time, when not qualified to fly under the IFR is, again, indicative of an insufficient concern on his part for air safety. Safe instrument flying requires both proficiency and currency. Having let his command instrument rating lapse, the applicant, nevertheless, continued to fly, and log in his pilot log book, instrument flight time. His explanation was that he understood that, provided that he was flying using navigation instruments, he could log instrument flight time. Not only is such an interpretation of the rules plainly unsustainable, no attempt was made by him to seek from CASA clarification (if that was required) of the CAR and the CAO.

150. On the basis of the Tribunal’s abovementioned findings of breaches by the applicant of the CAR and CAO, and having regard to the considerations just discussed, the Tribunal is satisfied, and finds, that the applicant, in those various circumstances, failed in his duty with respect to matters affecting the safe navigation or operation of an aircraft, within the meaning of reg 269(1)(c) of the CAR. Accordingly, the ground specified in that paragraph for cancelling the applicant’s CPL also exists in this case.

Regulation 269(1)(d) – is the applicant “not a fit and proper person to have the responsibilities and exercise and perform the functions and duties of a holder of” a CPL?

151.   It is well established that the expression “fit and proper person” in reg 269(1)(d) of the CAR must be interpreted having regard to the context in which it appears. Thus, for the purposes of reg 269(1)(d), the inquiry must focus upon whether the applicant is, or is not, a fit and proper person to have the responsibilities, and to perform the functions and duties, of a holder of a CPL: see Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 386; Re Taylor and Department of Transport (1978) 1 ALD 312 at 321; Re Griffiths and Civil Aviation Authority (1994) 34 ALD 554 at 559; Re Repacholi and Civil Aviation Safety Authority (2003) 75 ALD 312 at 314. At the forefront of the matters to which the Tribunal should have regard in that inquiry are matters related to the safety of air navigation.

152. In the Tribunal’s opinion the matters discussed in paragraphs 141-149 above, which demonstrate that the applicant, in various circumstances, failed in his duty with respect to matters affecting the safe navigation or operation of an aircraft, also demonstrate that he is not a fit and proper person to have the responsibilities, and perform the functions and duties, of a holder of a CPL. Accordingly, the ground specified in reg 269(1)(d) of the CAR for cancelling the applicant’s CPL also exists in this case.

The applicant’s CPL should be cancelled

153.   Having regard to:

· the various abovementioned breaches by the applicant of the Act, the CAR and the CAO found by the Tribunal – breaches which, in the opinion of the Tribunal, were either deliberate, reckless or (at best) grossly negligent;

·     the various abovementioned failures by the applicant in his duty with respect to matters affecting the safe navigation or operation of an aircraft; and

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

the Tribunal concludes that the correct and preferable decision is that the applicant’s CPL be cancelled.

Must an AOC be reissued to the applicant (trading as “Kookaburra Air”)? 

154. Section 28 of the Act provides:

“(1)     If a person applies to CASA for an AOC, CASA must issue the AOC if,                and only if:

(a)CASA is satisfied that the applicant has complied with, or is capable of complying with, the provisions of this Act, the regulations and the Civil Aviation Orders, that relate to safety, including provisions about the competence of persons to do anything that would be covered by the AOC; and  

(b) CASA is satisfied about the following matters in relation to   the applicant's organisation:

(i) the organisation is suitable to ensure that the AOC operations can be conducted or carried out safely, having regard to the nature of the AOC operations;

(ii) the organisation's chain of command is appropriate to ensure that the AOC operations can be conducted or carried out safely;

(iii) the organisation has a sufficient number of suitably qualified and competent employees to conduct or carry out the AOC operations safely;

(iv) key personnel in the organisation have appropriate experience in air operations to conduct or to carry out the AOC operations safely;

(v)      the facilities of the organisation are sufficient to enable the AOC operations to be conducted or carried out safely;

(vi) the organisation has suitable procedures and practices to

control the organisation and ensure that the AOC operations can be conducted or carried out safely;

(vii) if CASA requires particulars of licences held by flight crew members of the organisation - the authorisations conferred by the licences are appropriate, having regard to the nature of the AOC operations; and

(c) if the AOC sought would authorise the operation of a foreign registered aircraft on domestic commercial flights - CASA is also satisfied that the additional conditions in section 28A have been met.

(2) The financial position of the applicant is one of the matters that CASA may take into account in forming a view for the purposes of paragraph (1)(a).

(3)       In this section:

AOC operations means the operations covered by the application.

applicant's organisation means the organisation established, or proposed to be established, by the applicant to conduct or carry out the operations covered by the application.

key personnel means the people (however they are described) that hold, or carry out the duties of, the following positions in the applicant's organisation:

(a)       the chief executive officer;

(b)       the head of the flying operations part of the organisation;

(c)       the head of the aircraft maintenance part (if any) of the    organisation;

(d)       the head of the training and checking part (if any) of the         organisation.”

155. The Tribunal has found that the applicant failed to comply with various provisions of the Act, the CAR and the CAO that relate to safety before his AOC expired on 31 March 2000. Although s28(1)(a) of the Act also refers (in the alternative) to the matter of whether an applicant for an AOC is “capable of complying with” the provisions of the Act, the CAR and CAO that relate to safety, the Tribunal regards that alternative precondition as appropriate in the case of a person who is applying for the issue – rather than the reissue (as in the present case) – of an AOC and who does not yet have a record of compliance or non-compliance. In the present case, where the applicant held an AOC from 12 February 1996 to 31 March 2000 and applied on 1 March 2000 for the reissue of that AOC, the appropriate inquiry surely includes whether the applicant has previously complied with the safety provisions of the Act, the CAR and the CAO – not merely whether he is capable of so doing. If, however, it is appropriate – contrary to the Tribunal’s opinion – to consider (as an alternative precondition of the reissue of an AOC to the applicant) whether the applicant is capable of complying with the safety provisions of the Act, the CAR and the CAO, the Tribunal’s opinion would be that, having regard to the nature of the applicant’s non-compliance with those provisions (including his apparent lack of respect for, and inability to understand and comply with, those provisions), it cannot presently be satisfied that the applicant is capable of complying with those provisions, for the purposes of s 28(1) (a) of the Act.

156. In any event, s 28(1)(b) of the Act specifies various matters about which CASA – and, on review, the Tribunal – must also be satisfied before an AOC is issued under s 28. These are matters which relate to the “applicant’s organisation” – namely, Kookaburra Air. In the present case, the applicant provided no evidence or material to the Tribunal on the basis of which it might satisfy itself regarding the matters specified in s 28(1)(b) of the Act. Accordingly, on the material before the Tribunal it cannot be satisfied regarding any of those specified matters.

157. The Tribunal concludes, therefore, that an AOC is not required to be reissued to the applicant (trading as “Kookaburra Air”) pursuant to s 28 of the Act.

Should the approval of Kookaburra Air’s appointment of the applicant as a Chief Pilot be cancelled?

158.   Provisions regarding the approval, responsibilities, and cancellation or suspension of approval, of a Chief Pilot are in clauses 1, 2, 5 and 6 in Appendix 1 of CAO 82.0.  Those provisions are as follows:

“1        APPROVAL OF CHIEF PILOT BY CASA

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

1.2      The application must include the following details in relation to the person:

(a)       current licences, ratings and endorsements held;

(b) total flight time, total time as pilot in command and, where applicable, total instrument flight time and multi-engine aircraft experience;

(c)       a comprehensive outline of flying history, including experience in   commercial operations.

2        RESPONSIBILlTIES OF CHIEF PILOT

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

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

(a) ensuring that the operator's air operations are conducted in compliance with the Act, the Civil Aviation Regulations 1988, the Civil Aviation Regulations 1998 and the Civil Aviation Orders;

(b)       arranging flight crew rosters;

(c)       maintaining a record of licences, ratings, and route qualifications held                 by each flight crew member, including:

(i)        validity; and

(ii)       recency; and

(iii)      type endorsements and any applicable licence restrictions;

(d) maintaining a system to record flight crew duty and flight times to ensure compliance with duty and flight time limitations, in accordance with Part 48 of the Orders;

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

(f) monitoring operational standards, maintaining training records and

supervising the training and checking of flight crew of the operator;

(g) conducting proficiency tests in the execution of emergency procedures and issuing certificates of proficiency as required by section 20.11;

(h) training flight crew in the acceptance and handling of dangerous goods as required by the Civil Aviation Regulations 1988 or the Orders;

(i) maintaining a complete and up-to-date reference library of operational       documents as required by CASA for the class of operations conducted;

(j)        allocating appropriate aircraft.

…       

APPROVAL OF CHIEF PILOT BY CASA

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

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

(b) before being approved as a Chief Pilot, the person has:

(i) been assessed by an examiner appointed by CASA as suitable to carry out the responsibilities of a Chief Pilot; and

(ii) passed an oral examination conducted by such an examiner covering the regulatory requirements for the safe conduct of commercial operations; and

(iii) passed a flight planning, loading and performance examination

conducted by such an examiner based on the operator's most

complex aircraft.

5.2In addition to the requirements specified in clause 5.1, a person proposed for appointment as Chief Pilot may be required to fly with an examiner to demonstrate his or her suitability for appointment.

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

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

approval.

5.5An approval remains in force for such period as CASA specifies in the instrument of approval.  In the absence of a specified period, an approval remains in force subject only to the approved person maintaining a satisfactory level of performance.

5.6An approval relates only to the operator specified in the notice of approval.

6        CANCELLATION OR SUSPENSION OF APPROVAL

6.1In spite of clause 5.5, an approval may be cancelled or suspended at any time if, in the opinion of CASA, the performance of the Chief Pilot is no longer of an acceptable standard.

6.2      Where CASA cancels or suspends a person's appointment as a Chief Pilot

CASA must:

(a)       notify the person and the operator in writing of the cancellation or              suspension; and

(b) provide the person and the operator with reasons for the cancellation or suspension.”

The jurisdictional issue

159.   At the hearing the Tribunal raised the issue of jurisdiction and queried whether jurisdiction has been conferred upon it by an enactment to review a decision of CASA to cancel the approval of an operator’s appointment of a person as a Chief Pilot.

160.   The question whether the Tribunal has jurisdiction to review a decision of CASA to cancel or suspend the approval, or to refuse to grant approval, of an operator’s appointment of a person as a Chief Pilot has been considered by the Tribunal in a number of cases, and those cases have produced two conflicting lines of authority each of which is headed by a decision of the Tribunal constituted by a former President.  These two leading cases are Re Surf Air and Civil Aviation Authority (1991) 22 ALD 118, in which President O’Connor J held that the Tribunal had no such jurisdiction, and Re Seaview Lord Howe Pty Ltd and Civil Aviation Authority (1995) 38 ALD 422, in which President Mathews J held that the Tribunal does have jurisdiction in such a case.

161.   This issue was recently considered and determined by the Tribunal (constituted by Deputy President Hotop) in an interlocutory ruling in Re Repacholi Aviation Pty Ltd and Civil Aviation Safety Authority (No W2004/44) on 8 September 2004.  The Tribunal determined that it did have jurisdiction to review a decision of CASA to refuse to grant approval of the appointment by an operator of a person as a Chief Pilot, and it gave oral reasons for that determination.

162.   The Tribunal in the present case has likewise determined that it has jurisdiction to review CASA’s decision, dated 31 July 2000, to cancel the approval of Kookaburra Air’s appointment of the applicant as a Chief Pilot, and it adopts in substance the oral reasons of the Tribunal in Re Repacholi Aviation Pty Ltd  (above)  in support of that determination.  Those reasons, mutatis mutandis, are set out in paragraphs 163-174 below.

163. Jurisdiction is relevantly conferred on the Tribunal by s 31(2) of the Act and by reg 297A(2) of the CAR. The latter provision confers jurisdiction on the Tribunal to review various specified categories of decisions made by CASA under specified provisions in the CAR, none of which is applicable in this case. By s 31(2) of the Act, the Tribunal has jurisdiction to review a “reviewable decision”. The phrase “reviewable decision” is defined in s 31(1) of the Act to mean (relevantly):

“(a)     a refusal to grant or issue, or a cancellation, suspension or variation of, a certificate, permission, permit or licence granted or issued under this Act or the regulations; or

…”.

The question is whether a decision by CASA to cancel approval of an appointment of a person as a Chief Pilot constitutes, relevantly, a “cancellation … of, a … permission … granted … under this Act or the regulations”.

164. In the first place, the Tribunal accepts that a decision by CASA to cancel such an approval constitutes a “cancellation … of, a … permission”, within the meaning of para (a) of the definition of “reviewable decision”. The Tribunal does not accept CASA’s submission that each of the words “certificate”, “permission”, “permit” and “licence” in para (a) is a term of art referring only to a specific instrument granted or issued under the Act or the CAR, such as an AOC issued under s 27, or a permission granted under Part III, of the Act. The Tribunal notes that only two of those words – namely, “certificate” and “licence – are defined in s 3 of the Act and, in each case, the definition is inclusive rather than exhaustive. In the Tribunal’s opinion, the ordinary meaning of the word “permission” in para (a) of the definition of “reviewable decision” is wide enough to include an “approval” by CASA regarding the appointment of a Chief Pilot.

165.   The more problematic question is whether such an approval constitutes a  “permission…granted…under this Act or the regulations”.

166.   The approval, and refusal of approval, by CASA of an appointment of a person as a Chief Pilot are provided for in clauses 1 and 5 in Appendix 1 of CAO 82.0.

167. Section 98(4A) of the Act authorises CASA to issue Civil Aviation Orders with respect to any matter in relation to which regulations may be made for the purposes of, inter alia, s 28BA of the Act. Subsections (1) and (3)(b) of section 98 of the Act authorise the Governor-General to make regulations in relation to, inter alia, the conditions to be satisfied for the issue of AOCs.

168. Section 28BA(1) of the Act provides that an AOC has effect subject to, inter alia:

“(b)     any conditions specified in the regulations or Civil Aviation Orders.”  

Subsection (2A) provides that, if such a condition is breached, the AOC does not authorise any flight or operation to which the condition relates while the breach continues, and subs (3) authorises CASA, in those circumstances, to suspend or cancel the AOC.

169.    CAO 82.1 deals with conditions of AOCs authorising charter operations and aerial work operations.  Subsection 1.2 provides that each AOC is subject to the condition that the obligations set out in CAO 82.1 are complied with.  Subsection 2.2 sets out the following obligation:

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

It follows that, by s 28BA(1)(b) of the Act together with subs 1.2 of CAO 82.1, each AOC authorising charter operations and aerial work operations is subject to the condition that the relevant operator must establish a position of Chief Pilot and appoint a person to that position.

170.   Subsection 5.1 of CAO 82.0 provides that, where a Chief Pilot is required by Part 82 of the CAO to be appointed by an operator, it is a condition of the AOC that the operator will comply with Appendix 1 of CAO 82.0.  Clause 1.1 in Appendix 1 provides that a person must not be appointed as a Chief Pilot unless the person’s appointment has been approved in writing by CASA.  That clause, together with clause 5, are, as previously mentioned, the provisions of the CAO which provide for the approval, and refusal of approval, by CASA of an appointment of a person as a Chief Pilot.

171. Clearly, a decision by CASA to cancel approval of an appointment of a person as a Chief Pilot is a decision made under the CAO – specifically, under clauses 1 and 5 in Appendix 1 of CAO 82.0. The question is whether such a decision may also properly be described as a “cancellation … of, a … permission … granted … under this Act or the regulations”, within the meaning of paragraph (a) of the definition of “reviewable decision” in s 31(1) of the Act.

172. The word “under” in the phrase “under this Act or the regulations” in s 31(1) of the Act does not, in the Tribunal’s opinion, refer solely to a category of decision expressly referred to in the Act or the CAR; rather it is to be understood more broadly as also including a decision taken “in pursuance of” or “under the authority of” the Act or the CAR: see (in relation to the phrase “decision…made…under an enactment” in the Administrative Decisions (Judicial Review) Act 1977 (Cth)) Evans v Friemann (1981) 35 ALR 428 at 436; Australian National University v Burns (1982) 43 ALR 25 at 31. Understood in that sense, a decision by CASA to cancel approval of an appointment of a person as a Chief Pilot is not only a “cancellation…of, a…permission…granted…under” the CAO (specifically, clauses 1 and 5 in Appendix 1 of CAO 82.0), but also a “cancellation…of, a…permission…granted…under” – in the sense of, in pursuance of – the Act (specifically, s 98(4A) of the Act).

173. That broad interpretation accords, in the Tribunal’s opinion, with what must surely have been the intention of Parliament as reflected in the Act. There is no dispute that the relevant provisions regarding the appointment of a Chief Pilot as a condition of an AOC, and CASA’s power to grant, or refuse to grant, approval of appointment of a person as a Chief Pilot, could appropriately have been contained in the CAR (instead of in the CAO), in which event a decision by CASA to cancel approval of an appointment of a person as a Chief Pilot would clearly be a “reviewable decision” within the meaning of para (a) of the definition of that expression in s 31 (1) of the Act. When Parliament provided in s 98(4A) of the Act that those relevant provisions may be contained in Civil Aviation Orders made by CASA, instead of in regulations made by the Governor-General, Parliament cannot be taken to have intended that, in that event, a right of appeal to the Tribunal that would otherwise have existed would thereby cease to exist. If that were the case, CASA would be able, by adopting the expedient of making relevant Civil Aviation Orders under s 98(4A) of the Act, to deprive an operator of the right to seek a review by the Tribunal that would otherwise exist pursuant to s 31 of the Act - a result that Parliament surely did not intend: see Ian Harvey, “Administrative Appeals of Civil Aviation Authority Decisions” (1994) 1 A J Admin L 100 at 101.

174. Finally, it might be said – as CASA suggested in its submissions - that the omission to mention “the Civil Aviation Orders” in para (a) of the definition of “reviewable decision” in s 31 (1) of the Act - in which there is express reference to “this Act” and “the regulations” - is eloquent and is indicative of a legislative intent that the specified kinds of decisions, if made under the CAO, are not to be reviewable decisions. The Tribunal does not accept that proposition. Section 31 of the Act is a general provision conferring jurisdiction on the Tribunal to review various categories of decisions under the Act and the CAR. The omission to include an express reference to the CAO may be explained simply on the basis that Parliament did not intend, by means of s 31 of the Act, generally to confer jurisdiction on the Tribunal in respect of all the specified categories of decisions when made under the CAO.Regulation 297 A of the CAR, as previously noted, confers jurisdiction on the Tribunal to review various specified categories of decisions made by CASA under specified provisions in the CAR. The absence of a corresponding provision in the CAO is explicable on the basis that CASA is simply not authorised - in the Tribunal’s opinion, appropriately - either by the Act or by the CAR to insert such a provision in the CAO. In the Tribunal's opinion, the omission of an express reference, in the relevant legislative provisions conferring jurisdiction on the Tribunal, to the CAO is not indicative of a general legislative intent that any decision made under the CAO is not to be reviewable by the Tribunal. On the contrary, it is the Tribunal’s opinion that certain decisions of CASA made directly under the CAO - including, for present purposes, a decision to cancel approval of an appointment of a person as a Chief Pilot under clauses 1 and 5 in Appendix 1 of CAO 82.0 – were intended by Parliament to be caught by the definition of “reviewable decision” in s 31(1) of the Act and, hence, to be reviewable by the Tribunal pursuant to s 31 (2) of the Act.

The merits

175.   Clause 6.1 in Appendix 1 of CAO 82.0 provides that approval of an appointment of a person as a Chief Pilot may be cancelled at any time if, in CASA’s opinion, the performance of that person as Chief Pilot is “no longer of an acceptable standard”.  The reference to “performance” in clause 6.1 must, in the Tribunal’s opinion, be taken to be a reference to a Chief Pilot’s performance as regards the discharging of the responsibilities set out in clause 2.

176.   Having regard:

·     in particular to clause 2.1, and to the responsibilities of a Chief Pilot specified in paras (a) , (b), (d) and (f) of clause 2.2, in Appendix 1 of CAO 82.0;

· to the findings previously made by the Tribunal in this matter regarding the applicant’s breaches of the Act, the CAR and the CAO;

· to the Tribunal’s abovementioned finding, for the purposes of reg 269(1)(c) of the CAR, that the applicant (as holder of a CPL) failed in his duty with respect to matters affecting the safe navigation or operation of an aircraft; and

· to the Tribunal’s abovementioned finding, for the purposes of reg 269(1)(d) of the CAR, that the applicant is not a fit and proper person to have the responsibilities, and perform the functions and duties, of a holder of a CPL;

the Tribunal is necessarily also of the opinion, and finds, that the performance of the applicant as Chief Pilot of Kookaburra Air had clearly fallen below an “acceptable standard”, within the meaning of clause 6.1 in Appendix 1 of CAO 82.0, such that the cancellation of approval of his appointment by Kookaburra Air as a Chief Pilot was appropriate.

177. The Tribunal concludes, therefore, that the correct and preferable decision is that approval of Kookaburra Air’s appointment of the applicant as a Chief Pilot be cancelled.

Decision

178.   For the above reasons the Tribunal affirms the following reviewable decisions of CASA:

·     the decision, dated 27 June 2000, to cancel the applicant’s CPL;

·     the decision, dated 21 July 2000, to refuse to reissue an AOC to the applicant (trading as “Kookaburra Air”);

·     the decision, dated 31 July 2000, to cancel approval of Kookaburra Air’s appointment of the applicant as a Chief Pilot. 

I certify that the 178 preceding paragraphs are a true copy of the reasons for the decision herein of Associate Professor S D Hotop, Deputy President and Mr E Fice, Member

Signed:         ...........(sgd V Wong)....................................
  Associate

Dates of Hearing  15-19 December 2003
Date of final submissions         2 April 2004
Date of Decision  18 October 2004
Counsel for the Applicant         Mr J Kitto
Solicitor for the Applicant          Kitto & Kitto
Counsel for the Respondent     Mr I Harvey
Solicitor for the Respondent    Mr A Anastasi, Office of Legal Counsel, CASA