DADDOW and CIVIL AVIATION SAFETY AUTHORITY
[2010] AATA 805
•20 October 2010
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2010] AATA 805
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2009/3213
GENERAL ADMINISTRATIVE DIVISION ) Re LEONARD DADDOW Applicant
And
CIVIL AVIATION SAFETY AUTHORITY
Respondent
DECISION
Tribunal Deputy President P E Hack SC Date20 October 2010
PlaceBrisbane
Decision The decision under review is affirmed.
............Signed..................
Deputy President
CATCHWORDS
CIVIL AVIATION – cancellation of Flight Crew Licences comprising Flight Radiotelephone Operator Licence, Private Pilot (Aeroplane) Licence, Student Pilot Licence – applicant not a fit and proper person to have responsibilities and exercise and perform functions and duties of holder of Flight Crew Licences – decision under review affirmed
Civil Aviation Act 1988 (Cth), s 9A
Civil Aviation Regulations 1988 (Cth), regs 5.66(2), 42ZC(1), 269(1)
Re Taylor and Department of Transport (1978) 1 ALD 312
REASONS FOR DECISION
20 October 2010 Deputy President P E Hack SC Introduction
The applicant, Mr Leonard Daddow, seeks a review of a decision of the respondent, the Civil Aviation Safety Authority, made on 30 June 2009, to cancel his Flight Crew Licences comprising a Flight Radiotelephone Operator Licence, a Private Pilot (Aeroplane) Licence and a Student Pilot Licence.
Background
There was a considerable factual background to the decision which I will set out below. Except where I note otherwise it was not controversial.
Mr Daddow obtained his Student Pilot Licence in May 1986, and his Private Pilot (Aeroplane) Licence and Flight Radiotelephone Operator Licence in September of that year. Since that time he has flown some 950 hours as pilot in command.
Mr Daddow is the owner of Cessna P210N aircraft registered VH-NGD (NGD). It is a 6 seater single engine aeroplane which is pressurised and has a retractable undercarriage. In January 2007 Mr Daddow was involved in an incident on an island in Moreton Bay. On CASA’s case the propeller of NGD was damaged and required replacement after a heavy landing on the airstrip. On Mr Daddow’s account of events, the damage was caused when the wheel, when taxiing, dropped into a hole on the sand and grass strip. Given that CASA’s case was not evidenced in any way I proceed on the footing that Mr Daddow’s account is to be accepted.
The next incident of note occurred on 18 June 2007 when Mr Daddow was pilot in command of NGD on a flight from Coolangatta. He failed to comply with air traffic control instructions which were to track east of the coast over water northbound and maintain 500 feet. Contrary to those instructions he climbed to 1500 feet. The following month Mr Daddow, as pilot in command, flew NGD into controlled air space to the northwest of Brisbane without appropriate clearance.
On 14 December 2007 Mr Daddow, as pilot in command of NGD, flew to Rockhampton without obtaining the required air traffic control clearance, he descended from 12,500 feet without clearance and conducted the descent in instrument metrological conditions without appropriate endorsement to do so. Mr Daddow says of this occasion that he got caught in the clouds and descending to a gap in the clouds was the safer option.
A more serious incident occurred on 22 February 2008 when Mr Daddow attempted to land NGD at Maroochydore airport. That airport has two runways, runway 12 used only for general aviation and runway 36 used for general and commercial aviation. Mr Daddow attempted a landing down wind i.e. contrary to the regulatory requirement to land into the wind, on runway 12. He touched down well down the runway with the result that it was necessary for him to apply power and go around and undertake the landing again. In taking off, he struck trees on the perimeter of the airstrip, causing damage to NGD.
The accumulation of these incidents troubled CASA. On 5 March 2008, a delegate of CASA made a decision requiring Mr Daddow to undertake an examination to demonstrate that he continued to possess the aeronautical knowledge and skills appropriate for a Private Pilot (Aeroplane) Licence. A decision was made at the same time to suspend that licence. Mr Daddow was directed to undertake the examination on 31 March 2008.
It is relevant to note that the letter of 5 March 2008 from CASA to Mr Daddow notifying him of the examination and informing him of the suspension of his licence said this,
“Notwithstanding the suspension of your licences, in accordance with CAR 5.03(a) you may undertake flying training with an authorised flight instructor during this period.”
For a variety of reasons Mr Daddow was unable to undertake the examination required of him until 9 December 2008. In advance of the flight test Mr Daddow was given a flight planning exercise and theory knowledge test by CASA Flying Operator Inspector Mr David Burley. He had some difficulty with the flight planning exercise however his theory knowledge was assessed by Mr Burley as being poor and below the standard expected. The following deficiencies were noted[1] and recorded in CASA’s letter to Mr Daddow of 22 December 2008:
“(i) You did not know or understand the requirements for a pressurization design feature to fly your aircraft. This has been despite several and repeated discussions on ‘the legalities’, ‘sticky-strips’ etc and reference to the requirements of CAO 40.1.0 para 4.4(c). You made erroneous comments to the effect that you thought you were authorised to fly your aircraft B10,000ft.
(ii) The required departure procedure from Archerfield Aerodrome was not known. Even after prompting you did not seem to understand, or communicate the matter-at-hand clearly. When directed to the ERSA, and asked about the outbound tracking requirements, you either did not appear to fully appreciate or understand the requirement, or dismissed it as not important. You did not know, as indicated on your plan, of the requirement to depart a GAAP aerodrome, avoiding inbound GAAP approach points (as required by AIP ENR 1.1 para 30.3 d.).
(iii) You did not know correct requirements for VFR flight in Class E airspace. You also saw no problem with requesting a clearance if you did not know whether you needed one or not. This matter was an issue in a previous incident on 14 December 2007 detailed above at paragraph 5.
(iv) You did not know the requirements for straight-in approaches at non-towered aerodromes.
(v) You did not fully understand the Area forecast, or Terminal Forecast (TAF): you miscalculated local time from Zulu (even after help), times were misinterpreted, dates = times, cloud amounts = times, you did not know the meaning of 9999 (visibility greater than 10km). You did not know whether there were any NOTAMs, despite that they were on your printed sheet.
(vi) You did not know the requirements for planning for an alternate aerodrome when operating under the Visual Flight Rules (VFR).”
[1] Neither Mr Daddow nor Mr Daddow’s solicitor in his letter of 20 January 2009 challenged the assessment of Mr Burley.
These deficiencies resulted in Mr Burley concluding that the flight component of the examination should not proceed.
On 22 December 2008, following Mr Daddow’s failure in the examination, CASA gave Mr Daddow notice that it was considering the cancellation, suspension or variation of his Flight Crew Licences on the basis of the results of the examination. He was given the opportunity to show cause why that step ought not be taken. Mr Daddow’s solicitor, Mr Maitland, wrote to CASA on 20 January 2009 seeking to show cause and suggesting that Mr Daddow should complete some refresher training. There was a show cause conference held on 23 February 2009. It appears that in the course of that conference some mention was made of the fact that Mr Daddow’s Student Pilot Licence remained in force, despite the suspension of his Private Pilot (Aeroplane) Licence. Following the conference Mr Maitland again wrote to CASA on 25 February 2009 indicating that Mr Daddow had agreed to undertake remedial flight training with a nominated trainer. He also asked for confirmation in writing that the Student Pilot Licence remained in force. In subsequent correspondence CASA confirmed that it was, notwithstanding the suspension of the Private Pilot (Aeroplane) Licence.
Mr Daddow continued flying after the suspension of his Private Pilot (Aeroplane) Licence. According to his log book there were three occasions between March 2008 and September 2008 when he flew with “John”, who I take to be his friend and flying instructor, Mr John Battilana, as pilot in command. On two further occasions in December 2008 Mr Daddow flew as pilot in command with Mr Battilana as his co-pilot. Thereafter, and following the failure in his examination, Mr Daddow flew NGD as pilot in command on 19 separate occasions up to 27 April 2009. On two occasions Mr Battilana was aboard, on each of the other occasions Mr Daddow flew solo. By virtue of reg 5.66(2) of the Civil Aviation Regulations 1988 (Cth) (CAR) he was permitted to do so only if he had the permission of an authorised flight instructor and the flight was in accordance with that permission. Mr Daddow accepts that he did not have that permission on his solo flights but he says that he undertook those flights under a mistaken belief about the privileges of his Student Pilot Licence.
On one of those flights, that on 25 April 2009, Mr Daddow flew from Noosa Heads to Hervey Bay for the purpose of attending a function, and then returned. The total flying time was 1.5 hours. Mr Daddow was accompanied by two passengers, a female friend of his and the friend’s granddaughter. He was not authorised to carry passengers given that his Private Pilot (Aeroplane) Licence remained suspended.
The landing of NGD by Mr Daddow on his return to Noosa is the subject of some controversy. In correspondence dated 28 May 2009 CASA said this of that flight,
“7. On 25 April 2009 you flew Cessna 210P aeroplane registered VH-NGD without approval from an authorised flight instructor and landed on runway 11 at Noosa Airport with 2 female passengers on board.
8. Contrary to CAR 166(2)(f) you landed VH-NGD in a downwind direction, with the wind on runway 11 being at least 15 knots.
9. You touched down about 610 metres from the threshold of runway 11 and less than 280 metres from the end of runway 11, or 285 meters [sic] from the lake situated at the end of the runway, at a high speed.
10. You were required by CAR 138 to comply with requirements, instructions, procedures and limitations contained in the flight manual of VH-NGD.
11. By carrying passengers on board this flight when the privileges of your Private Pilot (Aeroplane) Licence were suspended you contravened CAR 249(1).
12. The performance charts in the flight manual for VH-NGD did not provide performance data for landings in more that [sic] 5 knots of downwind and thus prohibited you landing with a tail wind exceeding 5 knots.
13. By conducting this landing you contravened CAR 138(1).
14. In the course of landing the aircraft brakes locked and the aircraft skidded to a stop less than one metre from the airport boundary, over running the threshold of runway 29 (end of runway 11) by some 5 meters [sic].
15. You contravened CAR 166(7) by landing VH-NGD on part of this non-controlled aerodrome outside of the landing area.
16. You displayed a further lack of airmanship following the landing by applying high power and skid-turning the aircraft out of its sand entrapment flicking grass, sand and flotsam from its propeller tips, and taxiing to the parking lot.
17. In the light of this being a second breach, following the flight of 22 February 2008, of conducting a downwind landing you have demonstrated a lack of skills and knowledge consistent with conducting safe landings as pilot-in-command.”
Mr Maitland, on the instructions of Mr Daddow, responded to this notice in the following terms,
“In relation to the reported incident referred to in paragraphs 7-17 of the supplementary ‘show cause’ notice we are instructed that Mr Daddow looked at the windsock and considered the wind was a maximum of 5kt from the west and acceptable for a landing on runway 11.”
No issue was raised about the correctness of the other matters recited in those paragraphs. Issue was first taken in the course of cross-examination of Mr Daddow during the hearing.
Mr Daddow said that contrary to what had been contained in CASA’s letter of 28 May 2009 he had touched down approximately 500 metres from the threshold (not 610 metres), the aircraft brakes had not locked, the aircraft had come to a stop 10 metres from the boundary (not 1 metre), the aircraft had not overrun the threshold of runway 11 and he had not applied high power and skid turned the aircraft out of the sand entrapment flicking grass, sand and flotsam from its propeller tips during taxiing to its parking lot. Because CASA had not apprehended these matters to be in issue no steps had been taken to have available a witness to the events on whose account CASA had relied. It declined to apply to adjourn the matter to enable the witness to be called.
The accumulation of these matters led to the decision by CASA of 30 June 2009 to cancel all of Mr Daddow’s Flight Crew Licences. The application to review that decision was lodged on 10 July 2009.
The flight of 25 April 2009 led to Mr Daddow being prosecuted for a breach of reg 5.66(2) of the CAR for flying NGD as pilot in command without permission of an authorised flight instructor to do so. He was, as well, prosecuted for a breach of reg 42ZC(1) of the same Regulations for permitting maintenance to be carried out by a person not permitted to carry that maintenance. Mr Daddow pleaded guilty to the charges and on 21 April 2010 a Magistrate discharged Mr Daddow pursuant to s 19B of the Crimes Act 1914 (Cth) without proceeding to conviction.
The legislative framework
By virtue of s 9A of the Civil Aviation Act 1988 (Cth) CASA, in exercising its powers and performing its functions, must regard the safety of air navigation as the most important consideration. That obligation is necessarily imposed upon the Tribunal in undertaking its functions of reviewing decisions by CASA. The power exercised by CASA in the present case is that in reg 269(1) of the CAR. It provides that CASA may, by notice in writing, “vary, suspend or cancel the licence … where it is satisfied that one or more” of the grounds thereafter listed exist. Those grounds are,
“(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)that the holder of the licence, certificate or authority fails to satisfy, or to continue to satisfy, any requirement prescribed by, or specified under, these regulations in relation to the obtaining or holding of such a licence or certificate or an authority;
(c)that the holder of the licence, certificate or authority has failed in his or her duty with respect to any matter affecting the safe navigation or operation of an aircraft;
(d)that the holder of the licence, certificate or authority is not a fit and proper person to have the responsibilities and exercise and perform the functions and duties of a holder of such a licence or certificate or an authority; or
(e)that the holder of the licence, certificate or authority has contravened, a direction or instruction with respect to a matter affecting the safe navigation and operation of an aircraft, being a direction or instruction that is contained in Civil Aviation Orders.”
Here, CASA says, the grounds in each of paragraphs (a), (c) and (d) are made out.
Consideration
It is undoubtedly the case that ground (a) exists; Mr Daddow pleaded guilty to contravening the provisions of the CAR. Given the terms of s 269(1A) of the CAR the fact of the plea would, of itself, enliven the discretion. But, as it seems to me, the better way to consider the matter is to consider the “fit and proper person” ground. In that way the totality of the matters of which CASA complains may be considered.
CASA argues that those matters are such as would satisfy me that Mr Daddow was not a fit and proper person to have the responsibilities and exercise and perform the functions and duties of the holder of the various Flight Crew Licences. Mr Daddow, while accepting that he has some shortcomings, says that they do not demonstrate that he is not a fit and proper person, rather, he says, they demonstrate that he needs further training which can best be accomplished by leaving his Private Pilot (Aeroplane) Licence suspended and his Student Pilot Licence in force. That result would be achieved, it is said, were the decision set aside.
Mr Lithgow, counsel for Mr Daddow, urged me to consider the matter by reference to the matters that are demonstrated after CASA decided in late February/early March 2009 not to take further action against Mr Daddow i.e. to leave the suspension of the Private Pilot (Aeroplane) Licence in place and the Student Pilot Licence in force. The fact that CASA was content with that state of affairs, given what was then known of Mr Daddow’s shortcomings means, it was said that something more, and something adverse, needed to have emerged thereafter to warrant a departure from the decision to leave the Private Pilot (Aeroplane) Licence suspended and the Student Pilot Licence intact. The unauthorised flights do not provide that extra, it was said, because Mr Daddow made an honest mistake about his entitlement to fly.
I do not accept the argument for a variety of reasons.
First, it seems to me to be wrong in principle to consider the “fit and proper person” question on an incremental basis. I would have thought that question needed to be considered by reference to the totality of conduct. Moreover, if it be assumed, favourably to Mr Daddow, that he was honestly mistaken in his belief, then he was, at the very least, reckless in his approach to the privileges that attach to a Student Pilot Licence. Finally, the events of 25 April 2009 demonstrate that Mr Daddow has not learned from his experiences of 22 February 2008 and such training as followed it.
It is, of course, to be remembered that in considering the issue of a fit and proper person it is unwise to attempt to define the matters that may be legitimately enquired into and that each case must depend upon its own circumstances[2]. There will be theoretical and technical aspects of flying. And in the present context it is possible to say that a fit and proper pilot is one who has an appreciation of the statutory responsibilities and who discharges them[3]. In Re Taylor and Department of Transport[4] the Tribunal was considering reg 258 of the Air Navigation Regulations, the statutory precursor to reg 269 of the CAR and relevantly identical to it. The Tribunal said[5],
“In the context of reg 258(1)(d), the enquiry whether the applicant is a ‘fit and proper person’ is directly focused upon the fitness and the propriety of the applicant exercising the ‘responsibilities’ and performing the ‘functions’ and ‘duties’ of the holder of a licence – in this case a commercial pilot licence. It is not simply a question of competence to fly an aircraft which the Secretary must consider for this purpose.
In our view, what the regulation requires is a consideration of the applicant's conduct measured against the responsibilities, functions and duties of the holder of a commercial pilot licence as they emerge from the provisions of the Air Navigation Regulations. Whilst it would be inappropriate to endeavour to catalogue those responsibilities, functions and duties in any exhaustive fashion, it is clear that they include observing the interests of the safety of air navigation – not only the interests of pilots, passengers and the owners of aircraft, but also the interests of the public at large.”
[2] Hughes and Vale Pty Ltd v New South Wales (No 2) (1955) 93 CLR 127 at 157.
[3] Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 349.
[4] (1978) 1 ALD 312.
[5] At page 321.
That passage has been applied in many subsequent decisions of the Tribunal[6]. In my view it is appropriate to apply it in the present case.
[6] See e.g. Re Griffiths and Civil Aviation Authority (1994) 34 ALD 554
It is apparent from the results of the December 2008 examination that Mr Daddow has a poor grasp of the theoretical aspects of flying; the catalogue of failings listed by Mr Burley is troublesome. That lack of knowledge perhaps explains the earlier incidents of flying without clearance and failing to comply with air traffic control instructions.
Beyond that, it is evident that Mr Daddow’s practical application is also deficient. On the account of the events of 25 April 2009 that was unchallenged by Mr Daddow until the hearing, he put himself and two passengers at grave risk by landing long, a failing that had been earlier demonstrated. It was a dangerous landing even on the account now given by Mr Daddow. It is not an answer to say that Mr Daddow now realises that NGD was too powerful an aircraft for him to be flying; I would have thought that a fit and proper person would have understood and appreciated that before becoming involved in a dangerous landing rather than only after two such incidents.
In the absence of any recent assessment of Mr Daddow’s technical skills I can only conclude that I am not satisfied that he possesses those skills at a level appropriate for a Student Pilot Licence, let alone a Private Pilot (Aeroplane) Licence. Indeed, there is considerable demonstration that Mr Daddow falls below the appropriate skill level.
But my concerns about Mr Daddow’s theoretical and technical skills are compounded by my concerns about Mr Daddow’s approach to the rights and obligations that attach to the holding of Flight Crew Licences. On Mr Daddow’s account of events he believed that, as the holder of a Student Pilot Licence, he was entitled to fly solo. The basis of this belief was that that was the situation that prevailed in 1986 when Mr Daddow first obtained his Student Pilot Licence. It did not occur to Mr Daddow, apparently, to enquire of anyone, including of Mr Battilana, or of Mr Munn who he consulted in March 2009 about further training, whether the position remained the same after more than 20 years.
Mr Daddow received, and acknowledged having read, a letter from CASA that told him that he might undertake flying training with an authorised flying instructor whilst his Private Pilot (Aeroplane) Licence was suspended. That letter, at best, ought to have alerted him to the likelihood that the rules regarding Student Pilot Licence had changed. Mr Daddow’s log book demonstrates, favourably to him, that following the suspension, he undertook further training with Mr Battilana in the cockpit with him, initially as pilot in command and then as co-pilot. It was, on the most favourable view to Mr Daddow, reckless for him not to have made a simple enquiry of Mr Battilana about the entitlements of the holder of a Student Pilot Licence and to assume that the situation from more than 20 years ago prevailed before deciding to fly solo.
These matters leave me well satisfied that Mr Daddow is not a fit and proper person to have the responsibilities and exercise and perform the functions and duties of a holder of Flight Crew Licences. I would then affirm the decision under review.
I certify that the 34 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President P E Hack SC
Signed: ............Signed...........................................................
AssociateDate of Hearing 8 October 2010
Date of Decision 20 October 2010
Counsel for the Applicant Mr Lithgow
Solicitor for the Applicant Maitland Lawyers
Solicitor for the Respondent CASA Legal Services Group
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