Edwards and Civil Aviation Safety Authority
[2017] AATA 1068
•21 June 2017
Edwards and Civil Aviation Safety Authority [2017] AATA 1068 (21 June 2017)
Division:GENERAL DIVISION
File Numbers: 2016/1428
2016/1454
2016/1455
Re:Peter Edwards
APPLICANT
AndCivil Aviation Safety Authority
RESPONDENT
DECISION
Tribunal:The Hon. Dennis Cowdroy OAM QC, Deputy President
Date:21 June 2017
Place:Sydney
The Tribunal finds that the decisions under review of 14 March 2016 should be varied pursuant to s 43(1)(b) of the Administrative Appeals Tribunal Act 1975 (Cth) as follows:
(a)The applicant’s Grade 2 Flight Instructor Rating is suspended for a period of 6 months and until he has completed an instructor proficiency check (matter 2016/1455);
(b)The applicant’s private Pilot Licence – Aeroplane Category is suspended for a period of 6 months and until he has successfully completed a course In in Human Factors and Safety Systems (matter 2016/1428); and
(c)The applicant’s Commercial Pilot Licence – Aeroplane Category is suspended for a period of 6 months, contingent upon the applicant successfully completing courses in Human Factors and Safety Systems and to vary Edwards’ CPL and PPL by the imposition of a condition (matter 2016/1454). Such condition is as follows:
The holder is not to undertake any sales demonstration flights or advertising on behalf of Cirrus Aircraft Corporation or any other commercial entity other than under an Air Operator’s Certificate and the holder is to notify CASA prior to commencement of any such activities.
.............................[sgd]...........................................
The Hon. Dennis Cowdroy OAM QC, Deputy President
CATCHWORDS
CIVIL AVIATION - suspension of licence - private pilot licence - commercial pilot licence - suspension of grade 2 flight instructor rating - whether failure by applicant in duty regarding safe operation of aircraft - whether applicant is a fit and proper person to hold a private and commercial pilot licence - conduct concerning crash of aircraft - whether applicant’s pilot log book contained anomalies - whether applicant conducted unauthorised commercial operations - decisions varied
LEGISLATION
Civil Aviation Act 1988 (Cth), ss 27, 28
CASES
Australian Broadcasting Tribunal v Bond (1990) 94 ALR 11
Law Society of New South Wales v Foreman (No 2) (1994) 34 NSWLR 408
Law Society of New South Wales v Walsh [1997] NSWCA 185Quadrio and Civil Aviation Safety Authority [2011] AATA 709 (12 October 2011)
SECONDARY MATERIALS
Civil Aviation Advisory Publication, January 2007
Civil Aviation Regulations 1988 (Cth), regs 233, 269
Civil Aviation Regulations 1988 (Cth) as in force on 1 May 2014, reg 206Civil Aviation Regulations 1988 (Cth) as in force on 21 May 2013, regs 5.51, 5.52, 282
REASONS FOR DECISION
The Hon. Dennis Cowdroy OAM QC, Deputy President
21 June 2017
By Application for Review, the applicant (“Edwards”) seeks review of three decisions (“the decisions”) made by the Civil Aviation Safety Authority (“the respondent”) on 14 March 2016 made pursuant to sub-reg 269(3) of the Civil Aviation Regulations 1988 (“CAR”). By such decision the respondent determined to:
(i)suspend Edwards’ Grade 2 Flight Instructor Rating (“FIR”) for a minimum period of 12 months and until he has completed an instructor proficiency check (matter 2015/1455);
(ii)suspend his Private Pilot Licence – Aeroplane Category (“PPL”) for a minimum period of 12 months and until he has successfully completed a course in Human Factors and Safety Systems (matter 2015/1428); and
(iii)suspend his Commercial Pilot Licence – Aeroplane Category (“CPL”) for a minimum of 12 months, contingent upon the applicant successfully completing courses in Human Factors and Safety Systems and to vary Edwards’ CPL and PPL by the imposition of a condition. Such condition is as follows:
The holder is not to undertake any sales demonstration flights or advertising on behalf of Cirrus Aircraft Corporation or any other commercial entity other than under an Air Operator’s Certificate and the holder is to notify CASA prior to commencement of any such activities.
The decisions were made following the issue of a Show Cause Notice (“SCN”) dated 6 November 2014, a Supplementary Show Cause Notice (“SSCN”) dated 22 June 2015, and the consequent receipt of written responses from the legal representatives of Edwards, which were provided on 4 December 2014 and 1 July 2015, as well as the information provided at a Show Cause Conference held at the CASA Sydney Region office on 11 March 2015. The decision to impose the suspensions have arisen from the conduct of a flight by Edwards on 10 May 2014 as is detailed hereunder, upon the fact that Edward’s pilot log book contained anomalies and, further, that Edwards had conducted unauthorised commercial operations. The suspensions were made in each case pursuant to sub-regs 269(1)(c) and (d) of the CAR on the basis that Edwards failed in his duty concerning the safe operation of the Cirrus aircraft and, alternatively, was “not a fit and proper person to have the responsibilities and to exercise and perform the functions and duties of the holder of such a licence”.
CRASH OF AIRCRAFT
On 10 May 2014 Edwards was asked by Graham Horne, an Australian distributor of Cirrus aircraft based at Ballina, to take a prospective purchaser, Mr Joseph Lorincz (“Lorincz”) on a demonstration flight of a new Cirrus SR22 GTS Gen 5 aircraft (“the aircraft”). Lorincz had expressed a concern that the aircraft had a propensity to stall under certain conditions.
The aircraft was registered in the United States and was registered number N802DK. The aircraft was new and was fitted with a Cirrus Airframe Parachute System (“CAPS”), to which reference will be made hereunder. The flight was to commence at the Regal Air hangar at Bankstown Airport at approximately 11:30AM on that day, and at that time both the prospective purchaser and his colleague, George Catchpoole (“Catchpoole”), attended at the hangar where they were introduced to Edwards. For convenience the purchaser and his colleague will be referred to as “the passengers”. Both were qualified pilots.
The versions of the facts concerning the flight differ between Edwards and the passengers, as to the time of commencement of the flight, whether any pre-flight briefings were given by Edwards as pilot, whether the take-off was conducted by Edwards or by Lorincz and who actually flew the aircraft.
Edwards testified that he taxied the aircraft to a run up bay where he explained a series of safety pre-flight checks to the passengers. He maintains that 31 minutes and 54 seconds was spent from the moment the battery on the aircraft was turned on for the flight prior to take-off during which such checks were explained. Edwards maintained that he was at the controls and in command when the aircraft took off. Edwards stated that Lorincz took control and flew the aircraft performing manoeuvres as instructed by Edwards. At a critical point, Edwards said to his passengers words to the effect “watch this” before he undertook a steep bank to the left and applied 50% flap. The aircraft commenced to lose altitude and then after a couple of seconds the nose of the aircraft moved from left to right in what Edwards described as a yaw. Edwards stated that there was an uncommanded right rudder input which caused the aircraft in effect to dive down to the right and proceed into an uncontrolled vertical spin.
Lorincz gave a very different version. He said that he was surprised at the lack of pre-flight information provided by Edwards as pilot in command. Lorincz also said that he (Lorincz) was in command as the aircraft took off and commenced its flight. He stated that he was in command doing the initial turns but then Edwards took the controls without warning and said “watch this” there after manoeuvres occurred which cause the aircraft to go into its spin. Edwards stated that he did not make any uncontrolled right rudder input which caused the plane to commence a spin. When it became apparent that the plane was spinning out of control he applied left rudder and said words the effect” I’ve got it, I’ve got it” but then he felt right rudder being applied by Edwards. In the post-flight investigations, Lorincz told CASA that when the aircraft departed Bankstown airport, he was flying the aircraft
Catchpoole testified that he had a very clear recollection. He said: “I saw Mr Lorincz take the aircraft off. I saw Mr Lorincz fly the aircraft. I saw Mr Lorincz conduct a steep turn. I saw Mr Lorincz conduct a straight ahead stall. I saw Mr Edwards take control of the aircraft without saying “my aeroplane”, and utter the words “watch this”. I saw all these things very clearly.”
Catchpoole told CASA that Edwards explained some features of the aircraft as the aircraft was taxiing to the run-up bay. However, no formal safety briefing was provided concerning egress and parachute deployment and no protocol was given by Mr Edwards concerning aircraft control. Catchpoole told CASA that Edwards did not ask for his weight nor do balance calculations.
The reasons which are provided hereunder, the Tribunal is satisfied that the flight commenced at approximately 1:30PM and that Lorincz, sitting in the left side pilot’s seat, flew the aircraft from Bankstown towards a training area in a north-westerly direction. Due to smoke from back burning fires in the training area, the aircraft change direction towards Katoomba in the Blue Mountains at a height of about 6000 feet above mean sea level.
Because of Lorincz’ concern that the aircraft had a propensity to stall spin under certain conditions, certain manoeuvres were performed. Again the versions between Edwards and the passengers differ as to the events which follow.
The preponderance of evidence establishes that Lorincz had control of the aircraft as pilot when manoeuvres were performed to demonstrate the electronic stability of the aircraft. Such manoeuvres included a 30° angle of bank turn. Edwards informed Lorincz that, when a 45° angle of bank was exceeded, the electronic stability system increased pressure against the control stick to return the aircraft to a 30° angle of bank, however that could be overridden by the pilot applying greater force to the control stick. Edwards then suggested that the passenger in the front seat perform a 60° turn to the left. In response, Lorincz enquired whether more power was necessary. Edwards responded with words to the effect that it was unnecessary, and the power remained at approximately 24 inches Hg manifold pressure. Such turn was successfully undertaken.
Catchpoole estimated that the bank angle to be about 60° which he knew, from his prior training, to be an aerobatic manoeuvre.
Shortly thereafter appears that Edwards asked Lorincz to perform a wings level power on stall. Lorincz reduced the power to idle, held the nose of the aircraft up to allow the airspeed to reduce and that the stall warning appeared on the primary flight display. Edwards directed Lorincz to hold such settings until the buffet stall was felt. The buffet stall was experienced and the nose of the aircraft dropped. Lorincz recovered that the aircraft from the stall, and the aircraft appeared to recover readily.
The preponderance of evidence establishes that Edwards then took control of the aircraft without explanation and said words to the effect “watch this!” (Edwards does not dispute that he said such words). Edwards then set the flaps at 50% and rolled the aircraft into a left turn at about a 25° angle of bank, raised the nose of the aircraft sharply in a steep left climbing turn at the same time reduced power to idle. As a consequence, the right wing dropped vertically. The aircraft became inverted and began to spin vertically. The evidence establishes that at this point the aircraft was out of control and was in a terminal spiral spin.
Edwards was heard by the passengers to exclaim words to the effect “I’m sorry, I’m sorry”. During testimony, Lorincz gave the following account of the commencement of the spin:
MR HARVEY: Sorry, stop there. What was the circumstance in which you came to say to Mr Edwards and in terms of timing what was the proximity of that comment to the "Watch this" comment of Mr Edwards?---I recall that upon the loss of 35 control of the aircraft we developed into a spin and I remember counting one, two, three spins at which point Mr Edwards yelled out, "Fuck, I'm sorry". I immediately upon realising that he had lost control of the aircraft I immediately put in full left rudder and - - -
And, sorry, and stopping there. And why did you do that?---Because the aircraft was in a clockwise spin, so I put full left rudder in. I felt the aircraft immediately start to slow and I yelled out, "I've got it, I've got it", and then immediately at that point I then felt the opposite rudder come against me that Peter had then put in right rudder and an application of throttle and off the 45 aircraft went again in a clockwise spin or clockwise rotation.
And in terms of facilitating that clockwise rotation you say that you did or did not assist that with any control input?---I did not, no.
DEPUTY PRESIDENT: Well, when you said that you felt the right rudder, that was presumably being activated by Mr Edwards?---Correct, yes.
Then what happened after that? You said you felt the right rudder then something happened?---And then the aircraft continued then to spin in a clockwise rotation. At that point I was looking up at the parachute handle thinking do I pull this or not because I didn't know what to do. And I was 10 staring at it thinking should I pull this or not and then the next minute Mr Edwards pulled the handle and the parachute was deployed.
MR HARVEY: Can I also ask whether the time after Mr Edwards had said, "Watch this", did he point to any instrument directly in front of you on the 15 electronic light situation display?---Absolutely not, no.
He didn't point out to you the degree of bank and that the descent rate was at that point 1,500 feet per minute?---No.
You have a clear recollection that that did not happen?---Absolutely, yes, definitely.
Shortly thereafter, after several rotations the aircraft rotation slowed because Edwards activated the CAPS parachute which was fitted to the aircraft. The aircraft slowed quickly, and Edwards said “I’ve got it, I’ve got it”. It appeared to hang fully nose down but after the parachute was deployed the tail dropped thereby placing the aircraft into a wings level attitude. With the parachute deployed, the aircraft was estimated to be 1000 feet above the ground level. It then descended, without engine power, and was wholly supported by its parachute, narrowly missing high transmission lines before coming to a crash landing in the garden of a residence in the Blue Mountains. Neither Edwards nor his passengers sustained any physical injury. The aircraft was destroyed but there was no damage to any dwelling, nor loss of life, nor injury to any third party.
SUBSEQUENT EVENTS
Both Edwards and his passengers were interviewed by the New South Wales police and statements were provided. As a result of the accident Edwards was provided with a Notice of Proposed Action dated 6 November 2014 and Edwards attended a hearing described as a Show Cause Conference. During such hearing Edwards provided his recollection of the events leading up to the commencement of the demonstration flight and of the flight. Irrespective of the disputed version of events leading to the critical manoeuvre which resulted in the loss of control of the aircraft, Edwards acknowledged that he was in control at that time, and that he “should have modified” what he did, to use Edwards’ language.
There is no dispute that, at that critical juncture, Edwards was in control of the aircraft and that his selection of 50% flap, the roll of the aircraft into a left turn at about 25° angle of bank while reducing the power to idle and the raising of the nose of the aircraft was performed by him. In these circumstances it is unnecessary for the Tribunal to deal with many of the factual disputes which preceded this vital manoeuvre which caused the aircraft to be placed in a catastrophic attitude.
EVIDENCE OF FLIGHT
The Tribunal has had the benefit of both oral testimony and by the display of two digital reproductions of the flight. Such reproductions have been compiled from the Garmin G1000 on-board data recorder. The data retrieved has been used to create animations of the entire flight. For the respondent, the Garmin data was used in flight simulation software known as ‘Xplane 10’, whereas the applicant incorporated such data with Google Earth.
Each of the reproductions graphically illustrates the events of the flight commencing with the initial movement to the run up bay at Bankstown airport. Those reproductions confirm, for the most part, the matters recalled by both the pilot and the passengers concerning, in particular, the movement of the aircraft at the critical juncture. They demonstrate, for example, the initial turn to the left, the levelling of the aircraft thereafter, another turn to the left then the rising of the nose of the aircraft and its sudden dip to the right as of right wing lowered and the aircraft then commenced its spiral towards the ground.
Edwards testified before the Tribunal that he was certain that Lorincz, who was sitting in the left front seat of the aircraft, must have applied the right or the rudder of the aircraft at the critical juncture and that this was the cause of the nose rising and of the sudden and unexpected manoeuvre of the aircraft. Such proposition was denied by Lorincz, and had not been advanced by Edwards at the Show Cause Conference. Nor was such proposition advanced when Edwards provided his statement to the police following the accident. Accordingly the Tribunal concludes that such a theory should be dismissed.
Edwards’ claimed that Lorincz could not have flown the aircraft at take-off stage because the take-off run was straight along the centreline and because the Cirrus uses a side stick rather than a yoke. In answer to the suggestion that Lorincz actually undertook the take-off manoeuvre, Edwards stated that such a manoeuvre “cannot be done by somebody who has never touched a Cirrus before”.
David George Adkins, currently engaged as a Safety Systems Inspector who has been involved with safety in aviation for almost 20 years, is familiar with the Cirrus SR22 aircraft, and has had 17 hours experience in command of this type of aircraft provided evidence that side sticks are linked on both sides and that the runway alignment should be controlled by the rudder during the take-off roll. Such rudder is controlled by pedals on the floor, not the side stick.
The Tribunal heard evidence from each of the passengers. Catchpoole’s testimony was wholly consistent with that of Lorincz. Much of that pre-flight evidence conflicted with the evidence of Edwards. As both passengers were qualified pilots, their evidence and their answers to questions asked in cross-examination concerning the demonstration flight satisfy the Tribunal that they are entirely reliable as witnesses. In respect of the differences concerning the pre-flight events, whilst Edwards believes he provided extensive safety briefings, the passengers expressed surprise at the lack of preparation for the flight, and lack of pre-flight information. Certainly, it appears that no weight checks were made and if any briefings were provided they were, at best, casual. The Tribunal is satisfied from the statements provided by the passengers that whilst Edwards described the qualities of the aircraft, there was no detailed explanation of the safety systems.
Mr Adkins has used electronic assistance to examine the data relating to the flight. The recorded flight data from the G1000 system installed in the aircraft was examined within Microsoft Excel and such data was subsequently imported into Google Earth Pro, which generated a 3D flight path over the terrain. The key aspects of the flight sequence were then annotated on the flight path and data from the aircraft was used to generate a weight and balance analysis of the aircraft. As a result of his investigations, Mr Adkins made the following observations concerning the stall sequence:
When Mr Edwards chose to perform this demonstration, there was a likelihood that the aircraft would either return to normal flight without the use of advanced flying skills or that the aircraft would enter a spin or spiral dive, noting that spinning and aerobatic manoeuvres are prohibited in the AFM (Airplane Flight Manual). Mr Edwards at the time of the accident did not possess any formal aerobatics qualifications, which would provide training in the recovery from a fully developed spin.
Mr Adkins reached following conclusion:
Based on my review of the G1000 aircraft data there is no identifiable basis to attribute the cause of the terminal stall to any actions by the left seat passenger, Mr Lorincz. To the contrary, I consider that the aircraft data demonstrates that the aircraft was deliberately placed into an unusual and aerobatic attitude which resulted in a stall and the subsequent deployment of the CAPs system. I am unaware of any on-board aircraft data which supports Mr Edwards claim that the stall was caused by Mr Lorincz making an uncommon and right rudder input. Irrespective of such a claim, the actions of Mr Edwards in place in the aircraft in an unusual attitude were in my view causative of the subsequent stall and consistent with a general lack of planning and airmanship by Mr Edwards in the conduct of the flight.
Nicolas George Coulson, the Test Pilot employed by CASA provided details of his experience and of the accident sequence after his review of the simulations created by the respondent. He gave evidence in a statement, inter alia, as follows:
The video showing the Garmin G1000 Primary Flight Display (PFD) indicates that as the aircraft entered the turn to the left its speed was around 87 knots indicated airspeed (KIAS) and then reduced at a reasonably rapid rate to a minimum of around 63 KIAS. Rough interpolation between the numbers presented at Figure 5 – 7 of the AFM [Airplane Flight Manual] shows that, with 20° AOB [angle of bank] and at a heavyweight, the aircraft should stall at around 70 KIAS. As this speed was passed and the minimum speed was reached the nose of the aircraft dropped and it began a roll to the right. Initial roll-off rate was slow but it then increased – the time taken to roll from 20° left AOB to 45° right AOB was around seven seconds. As the AOB passed through 45° AOB to the right the indicated airspeed had increased to above 80 KIAS and, as reported by the manufacturer the aircraft should have been fully controllable with normal use of flight controls.
He continued:
The motions of the aircraft, up until the 45° right AOB point, were, in my opinion, completely in accordance with known SR22 stalling behaviour and a recovery to control flight should have been possible. Progression of the sequence beyond that point was greatly dependent on the flight control inputs made by the pilot(s) and there is some uncertainty regarding what those inputs were. It is, perhaps, understandable that the unexpected departure of the aircraft caught the occupants by surprise and, being unused to dynamic manoeuvring, their reactions were slow or incorrect.
Mr Adkins was asked to comment upon the claim by Edwards that the roll and yaw to the right was caused by Lorincz applying right rudder as he aircraft stalled. He said:
While this is possible I think the aircraft’s departure action was much more likely to have been due to its inherent stalling behaviour as detailed above. If a rudder input had been made then I would expect some movement to be observable at the Skid/Slip Indicator of the PFD [Primary Flight Display]. Close examination of this indicator only shows noticeable sideslip as the aircraft is rolling through 30° right AOB. This is entirely consistent with what should have been seen during an unchecked, rolling stall progression. I also believe in application of right rudder to be improbable because of the standard stall recovery procedures all pilots have drummed into them during their training. While the aircraft certification requirement is that the aeroplane be recoverable from a stall using normal flying control inputs… pilots are usually taught to counter any wing-drop all rolling tenancy with the use of opposite rudder. Thus, in this incident, if either of the pilots had reacted instinctively using their rudder pedals I would have predicted an application of left rudder as the aircraft rolled unexpectedly to the right.
Mr Adkins provided his summary:
My opinion is that the right rolling motion experienced after the aerodynamic stall from a 20° AOB left turn was most likely the result of the normal stalling the behaviour of the aircraft. Recovery to controlled right, within the first seven seconds of the post stall motion, should have been possible through application of the flying controls in their normal sense.
During the course of the hearing the Tribunal directed the experts who were called by each party to confer in order to determine whether conclusions could be drawn from the electronic and other evidence which had been submitted to the Tribunal. In attendance were Brian Horton (Director of the Flight Operations Unit, School of Aviation, University of New South Wales), David Adkins, (Safety Systems Inspector at CASA) and Nick Coulson (CASA Test Pilot). They concluded jointly in respect of the final movements of the aircraft before loss of control was experienced:
During the left turn, which precipitated the departure, the airspeed was seen to reduce, at a deceleration rate greater than three to five knot per second, to approximately 62 KIAS. This was well less than the stalling speed published in the Airplane Flight Manual (AFM) for a 30 degree banked turn at the approximate weight of the aircraft at the time.
During the roll [through] wings level, and which then continued to the right rotating departure, no significant movement of the Slip/Skid Indicator (the ‘Skid Ball’) was seen until the angle of bank (AOB) had passed through approximately 40 degrees to the right.
These factors supported the theory that the aircraft stalled in the left turn and that the right rolling motion was a normal characteristic of its turning stall behaviour. The lack of movement of the skid ball indicated that the application of significant rudder inputs during this stall was unlikely.
The motions and flight parameters of the aircraft following the right rolling departure were also examined. The significant increase in airspeed during the subsequent descent was noted and the probability that the aircraft had entered some sort of spiral dive, as opposed to a fully developed spin, was agreed. BH advised that the post departure hesitation. Or reversal, of the turning motion, as depicted in the X-Plane video, had not been present in the Google Earth version.
Having seen both the Google Earth video and compared it with the X-Plane video, the experts noted that there were minute gaps in time between the two compilations. They concluded that these resulted from the use of different software programs which use different algorithms when analysing the data and producing the visual representations. However, the following notation was made:
A couple of gaps, of a second or two each, were noted in the underlying G1000 data and were taken as a possible cause of the discrepancy between the two presentations in that the different software programs used different algorithms in analysing the data and producing their visual representations. DA advised he would re-examine the data smoothing method used by X-Plane in covering the gaps.
None of the experts made any observations after viewing the Google Earth video that contradicted the observation made from the X-plane video that during the roll to wings level, which continued to the right rotating departure, no significant movement of the Slip/Skid Indicator was seen until the angle of bank (AOB) had passed through approximately 40 degrees to the right.
Karen Patricia Scrimes, an officer of CASA engaged in the Safety Assurance Branch at the Sydney Region office provided evidence concerning the cause of the accident. Ms Grimes met with Edwards, Lorincz and Catchpoole. Ms Scrimes found that there were inconsistencies in the applicant’s version of events in relation to the provision of a pre-flight briefing, whether weight and balance calculations were carried out, whether any information was provided on the operation of the CAPS system.
Ms Scrimes concluded, giving weight to the evidence of the passengers, that there were significant omissions from a flying operations perspective “of expected standard flying practices” she considered that such emissions “indicate a lack of airmanship from the Applicant”.
AIRCRAFT FLIGHT: SUMMARY OF FINDINGS
In view of the above evidence, the Tribunal concludes that when the aircraft went out of control, the pilot in command was Edwards; that a manoeuvre had been performed which was unsafe; that Edwards did not have the training or competence to retrieve the aircraft from the dangerous attitude in which he placed it; that the aircraft control could have been recovered at that point through proper training and experience. Such findings are relevant because one of the grounds upon which the decision was made by the respondent was a fact that Edwards conducted the flight in a dangerous manner.
The Tribunal also concludes that the respondent was justified in finding that Edwards has attributed blame to others for the shortcoming which was apparent in his flying skills and had attempted, as the respondent observed, to minimise the seriousness of his shortcomings. The Tribunal finds that the respondent had ample evidence to support its conclusions concerning the factual matters leading to the loss of the aircraft.
LOG BOOK ANOMALIES
The respondent observed that the pilot logbook maintained by Edwards contained several anomalies. The pilot book was produced under a notice issued on 27 January 2015. The logbook revealed 17 anomalies between 21 November 2005 and 6 September 2014. All references to the CAR in the next two sections relating to the log book are in relation to the CAR as in force on 21 May 2013
The first anomaly refers to a flight conducted on 21 November 2005 when Edwards recorded a total of 54.4 hours as harlot in command of aircraft registered VH – KDT, being a BE30 Kingair 350 aircraft during a flight from Desmoines, Iowa, USA and arriving at Bankstown. The other pilot listed was Francis Bonner. Bonner has advised the respondent that he was a pilot in command. Even had that been correct, Edwards was not authorised to conduct a flight as pilot in command. If he did conduct the flight as pilot in command, he contravened reg 282(1) of the CAR.
The majority of the remaining entries record that Edwards conducted instrument flights when he did not hold a valid instrument rating to conduct such flights, contrary to reg 282(1) of the CAR. Such flights occurred on 3 March 2013, 19 June 2013, 23 November 2013, 21 January 2014 (two flights), 19 February 2014 (two flights) 17 April 2014, 19 April 2014, 21 May 2014 (two flights) 22 May 2014, 24 May 2014 and 6 September 2014.
On 25 October 2014 Edwards underwent an instrument proficiency test for the award of a Multi-Engine Command Instrument Rating (MECIR) with a testing examiner. A discrepancy in the flight time of 1.7 hours compared to 2.2 hours was recorded. A similar error was discovered for an entry on 13 October 2012 for the same kind of test.
Edwards had no satisfactory explanation for the miss-stated entries. He attempted to explain the discrepancies by stating that none of his supervisors had drawn his attention to the errors and that others had signed that the logbook as “true and correct”. Edwards submitted that the claims of CASA were “furphies”, thereby meaning that they were only rumours or did not exist. Further, in respect of two entries which were challenged relating to errors in the duration of the flights, in each case the discrepancy related to an understatement of the hours flown, rather than an overstatement. Accordingly it was submitted, in effect, that this was to his credit.
FINDING: ERRONEOUS LOGBOOK ENTRIES
The Notice of Decision issued to Edwards refers the irreconcilable entries and concludes that the logbook entries demonstrate that flights were conducted when Edwards did not hold the requisite authorisation to conduct such flights. It is plain that the entries referred to were erroneous. They did not accurately record the flights conducted by Edwards. Pursuant to reg 5.51 of Part 5, General Division 2 of the CAR, the obligation existed to maintain Personal logbooks for recording the matters required by reg 5.52, pursuant to reg 5.51(1)(b). Regulation 5.52(1) provides relevantly:
The holder of a flight crew licence, a special pilot licence… must record in his or her personal logbook:
…
(b)any information about each flight undertaken by the holder that CASA directs be recorded in the logbook…
The information provided by Edwards in his logbook relating to the challenged entries was deliberately incorrect. No real explanation has been provided for the irregularities. Accordingly this ground of complaint is established.
UNAUTHORISED COMMERCIAL FLIGHTS
Another ground relied upon as the basis for the decision relates to flights which constituted unauthorised commercial operations. All references to the CAR in the next section relating to unauthorised commercial flights are in relation to the CAR as in force on 1 May 2014. In respect of this ground, the logbook records that Edwards conducted sales demonstrations as instructional flying. However pursuant to reg 206(1)(a)(vi) of the CAR , flying training (other than conversion training) was prescribed as an aerial work purpose and therefore required that it be conducted under an Air Operator’s Certificate (“AOC”). Edwards did not hold such a certificate.
In response, Edwards claimed that flights were conducted for “flying training (other than conversion training)” which is not prescribed aerial work and therefore not for a commercial purpose. Such submission was rejected CASA on the basis that whilst the flight of 10 May 2014 was primarily intended as a sales demonstration flight, Edwards provided some flying instruction to Lorincz. Accordingly it could not be classified as conversion training under reg 206(1)(a)(vi) of the CAR since the aircraft was not specifically type or class rated. Accordingly, in permitting Lorincz to fly the aircraft constituted aerial work for the purposes under CAR 206(1)(a) and therefore could only be performed lawfully under an AOC.
Section 27, contained in Division 2 of the Civil Aviation Act 1988 (Cth) (“CAA”) makes provision for the issue of an AOC. Significantly, s 27(2) provides that, except as authorised by an AOC, and aircraft (inter alia) “shall not fly into or out of Australian territory” and (b) “an aircraft shall not operate in Australian territory”; further, the provisions of s 27 provide that the operation of s 27(2) applies “only to the flying or operation of an aircraft for such purposes as are prescribed”. Section 28(1) thereof provides the requirements which must be satisfied to enable a person to be issued with an AOC, and include issues relating, for example, to the safe conduct of operations, s 28(1)(b)(i); that the organisation has a chain of command appropriate to ensure that the AOC operations can be carried out safely, s 28(1)(b)(ii). Accordingly the issue of an AOC is only made following satisfaction of the stringent requirements.
Pursuant to reg 206 of Division 1, Part 14 of the CAR , certain operations are defined as commercial purposes. They include flight training, see reg 206(1)(vi); and “any other purpose that is substantially similar to any of those specified in subparagraphs (i) to (vii) (inclusive);” see reg 206 (1)(ix). Further, a definition of “conversion training” is provided in reg 206(2) as follows:
conversion training means flying training for the purpose of qualifying for the issue of an aircraft endorsement. [original emphasis]
CASA has relied upon other events which it maintains clearly demonstrates that Edwards was conducting training. One such matter relates to a website of Cirrus, being the maintenance business operated by Edwards through his company Regal Air Pty Ltd. Such website clearly stated that Cirrus training was being provided by that organisation when in fact no AOC was held for that purpose. Edwards acknowledged during the Tribunal that such website was in error, and that he had removed it from the Internet.
Further, a large sign on the exterior wall of the Regal Air office also displayed words to the effect that Cirrus training was provided the sign clearly states “Cirrus Training Centre when in fact no AOC was held. Again, Edwards acknowledged that this was a mistake and that had been removed.
FINDING: AOC REQUIREMENT
The misleading website advertisement and the misleading sign to the effect that training was provided for Cirrus aircraft was clearly intentional. Edwards, because of his vast experience in the aviation industry, must have known that to provide training, he or his organisation was required to have an AOC. These defects have now been remedied.
CASA did not rely specifically upon the misleading advertisements upon which to found its application for suspension, but rather the fact that the flight on 10 May 2014 was for training purposes.
The Tribunal has considered all the evidence on this issue. The Tribunal is not satisfied that the flight should be categorised as a flight for conversion training purposes or for other training as suggested by Edwards. Rather, the flight was for commercial purposes, within the meaning of reg 206(1)(ix) of the CAR. It was a flight intended to convince Lorincz that the aircraft was suitable for his use. As such it was in the nature of” advertising”, being a purpose described in reg 206(1)(v). Such a term, when used in the context of the regulation does not suggest it should be confined only to advertising in the nature of skywriting or flying a banner. The flight was undertaken to induce Lorincz to purchase the aircraft. Indirectly, if such sale were procured, Edwards would benefit as he was the service or maintenance provider for Cirrus. The term “advertising” is not limited, and in the Tribunal’s consideration it extends to the very activity conducted by Edwards.
EDWARDS’ EXPERIENCE
Edwards was born on 16 March 1952. He holds academic qualifications, namely a degree in science from the University of Sydney and a Diploma of Education. He has been involved in the operation of a stationery business and printing business which is now in liquidation. In November 2013 he established Cirrus Sydney Pty Ltd, now known as Sydney Aircraft Management Pty Ltd which currently deals in second-hand aircraft. He is also the principle of Regal Air Pty Ltd, a family-owned maintenance facility and a trustee company. Such company carries out general aircraft maintenance and is an authorised Cirrus maintenance centre. Edwards holds a Cirrus Standardised Pilot Instructor Certificate.
Edwards has held a private pilot licence since 1 July 1974. He obtained a commercial pilot licence on 23 August 1979 and holds a Multi-Engine Command Instrument rating and a Grade 1 Instructor rating. He has logged 3200 hours. He holds a certificate to fly a Citation jet and a DC 3 aircraft.
EVALUATION OF EDWARDS’ FLYING SKILLS AND EXPERIENCE
The Tribunal received evidence from Brian Kenneth Horton (as stated previously, the Director of Flight Operations and Chief Executive Officer of the Flying Operations Unit at the School of Aviation, University of New South Wales). Mr Horton gave evidence during the hearing of the competence of Edwards who he had known for 10 years, as follows:
My impression was that he was, for his level of experience, an average pilot in the manipulative sense, but a very mature and considered aviation citizen who took his flying seriously, conducted it in a safe way, a responsible way, and I had no concerns at any stage about – about his level of professionalism.
He continued:
In all respects, I’m satisfied that he is a competent and responsible pilot and flying instructor, and provider of – or provider of services to the aviation industry in that he provides maintenance to us.
Edwards relied upon a statement of Brian John Candler. Mr Candler met Edwards in 2015 when he undertook a Cirrus Advanced Transition Training Course with Regal Air at Bankstown airport. Mr Candler states that he found Edwards to be careful, meticulous and thorough in performing the required pre-flight checks and briefings and states that Edwards briefing included material which demonstrated that Edwards was aware the limitations of the Cirrus aircraft.
Lyn Ann Gray, Chief Flying Instructor, a Chief Pilot and an Authorised Testing Officer who is authorised by CASA to conduct tests of flying skill for pilots undergoing review or re-evaluation or continuation of qualifications, provided testimony. Ms Gray, who has flown approximately 12,800 hours on various types of aircraft and has instructed for more than 8000 hours, testified as to the skills and experience of Edwards. Ms Gray stated that she had known Edwards for many years and in the past 12 months had conducted a proficiency check renewal flight with Edwards “which was passed in exemplary fashion. I noticed that Mr Edwards is thorough and careful in his use of checklists, his requirement that all flying operations are conducted according to conservative techniques appropriate for management of a high-performance aircraft, particularly were the pilot to be unfamiliar with management of aircraft in this category”. Ms Gray also referred to discussions which she had had with Edwards concerning the proper management of aircraft at the critical stage where inattention or an effort to over-bank the aircraft can have an adverse outcome. She stated:
This is a significant problem for high-performance aircraft such as the Cirrus, the Bonanza and other such aircraft when in the hands of a pilot with limited experience.
SUMMARY OF FINDINGS
The flight on 10 May 2014 and the involvement of Edwards in undertaking manoeuvres which caused the aircraft crash is relied upon by the respondent as demonstrating a lack of proficiency in flying the aircraft. Alternatively, it may be implied that the incident resulted from a carefree attitude in undertaking the manoeuvres when they were inherently dangerous. Further, the respondent relies in its Notice of Decision to the fact that Edwards has attempted to blame Mr Lorincz for placing the aircraft in its unrecoverable position, and has failed to accept any responsibility or blame for the accident. The respondent also relies upon a failure of Edwards to conduct the requisite pre-flight checks in breach of reg 233 of CAR, Division 3 Part 14.
The respondent also relies upon the erroneous entries in the log books and the undertaking of flights without an AOC as grounds for its decision to suspend Edwards’ licences.
The Tribunal has heard evidence extending over several days in this Application for Review. It is aware that the suspension is may have a deleterious financial impact upon the operation of Edwards in his business, as Edwards has referred to in a statement.
In determining the appropriate action to be taken against Edwards’ licences, this Tribunal must determine whether Edwards is a fit and proper person to hold them. In Quadrio and Civil Aviation Safety Authority [2011] AATA 709 (12 October 2011) the Tribunal made the following observation: –
67It 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; each case must depend upon its own circumstances: see Hughes and Vale Pty Ltd v New South Wales (No 2). But 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 one who discharges them: Australian Broadcasting Tribunal v Bond. In Re Taylor and Department of Transport the Tribunal was considering reg 258 of the Air Navigation Regulations, the statutory precursor to reg 269 of the Civil Aviation Regulations and relevantly identical to it. The Tribunal said,
“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.”
The maintenance of the safety of air operations and travel is of primary importance. In this instance the lives of three persons were put in grave risk. That risk resulted, on the preponderance of evidence, because Edwards performed a manoeuvre which was beyond his competence and for which there is no evidence of appropriate training. During the hearing there was much debate concerning the definition of aerobatics, or acrobatic flight, namely “… Manoeuvres intentionally performed by an aircraft involving an abrupt change in its attitude, an abnormal attitude, or an abnormal variation in speed”: see Civil Aviation Advisory Publication, January 2007 (CAAP 155-1(0)).
The Tribunal does not consider however that Edwards intentionally conducted aerobatics: it accepts that the sudden manoeuvre led to consequences which took Edwards entirely by surprise. The fact is he was not capable of recovering the aircraft by conventional means when, on the expert evidence there was approximately seven seconds for him to react and to attempt to recover control. It appears that the control was being regained only because of action taken by Lorincz in applying left rudder when it was countermanded by Edwards and resulted in the onset of the spiral. The Tribunal considers, that more probable than not, detailed pre-flight checks as required by reg 233 of the CAR were not performed as required. The Tribunal, however, accepts that such failure may have resulted from the fact that Edwards was explaining the features of the aircraft prior to take-off, and was thereby distracted from satisfying the safety check requirement. It should also be observed that there is no evidence that any weight checks were undertaken prior to the flight. Mr Edwards, in this regard, stated that he considered that the weight of the passenger in the rear seat would have made no difference to the operation of the aircraft and did not contribute to the loss of control of the aircraft.
The failure to maintain the logbook accurately is a serious matter. A true record of all flights being undertaken is essential for auditing and for qualifications. The erroneous entries have not been satisfactorily explained.
The failure to hold an AOC is problematic. CASA relied, for this ground, upon the fact that Edwards undertook a flight for conversion training purposes. The circumstances of the flight are insufficient to constitute a flight so categorised. There is no suggestion that “training” of any kind was proposed for the flight. The Tribunal considers that it was a flight for commercial purposes which would have required an AOC certificate. However, CASA did not conduct its case on this basis and no submissions were received from either party on this issue. Accordingly, the Tribunal does not make any finding that an AOC certificate was required for the flight.
DISCIPLINARY SANCTION
The purpose of a suspension of the privilege of holding a licence is not punitive. Rather, such action is taken as a protective measure, both to protect the public and to protect those engaged in operations. By analogy to those who practise as qualified lawyers, where a departure from the high standard required of those engaged in that profession occurs, it is the function of the Law Society to mark the seriousness of the practitioners conduct: see Law Society of New South Wales v Foreman (No 2) (1994) 34 NSWLR 408 at 441. Action is required by the relevant licensing authority to protect the public from further transgression: see Law Society of New South Wales v Walsh [1997] NSWCA 185.
In considering the extent of any disciplinary action in relation to an applicant’s licences, all the factors must be considered in determining whether Edwards is a “fit and proper person” to hold the licences which are under review. The definition of “fit and proper person” has been considered and explained by the High Court of Australia in Australian Broadcasting Tribunal v Bond (1990) 94 ALR 11 at [56] where Toohey and Gaudron JJ said (inter alia):
However, depending on the nature of the activities, the question may be whether improper conduct has occurred, whether it is likely to occur, whether it can be assumed that it will not occur, or whether the general community will have confidence that it will not occur. The list is not exhaustive but it does indicate that, in certain contexts, (because it provides indication of likely future conduct) or reputation (because it provides indication of public perception as to likely future conduct) may be sufficient to ground a finding that a person is not fit and proper to undertake the activities in question.
Edwards has denied responsibility for the accident, and steadfastly maintained that the accident was caused by the alleged uncommanded right rudder input. The refusal to acknowledge the evidence which establishes the cause of the accident, and which effectively eliminates the theory advanced by Edwards, is disconcerting. The Tribunal is not satisfied that Edwards is intending to be deliberately untruthful in such denial. Rather, the denials have arisen from a reconstruction which he believes reflects what occurred. However the overwhelming evidence establishes that he must bear ultimate responsibility for the loss of control of the aircraft on 10 May 2014.
But there is another factor which is disturbing, namely the failure to accept that the logbook entries were erroneous. Such failure, and the failure to recognise the requirement for an AOC certificate and the publication of the misleading website concerning training and of the falls sign displaying the words “Cirrus Training Centre”, display a disdain for the regulations and for the actions of the regulatory authority, CASA.
However the question arises as to what measures are required to ensure that Edwards will comply with the requirements in the future. Three years have elapsed since the accident. Edwards has been flying incident free during this period and throughout his career extending for almost 40 years of flying the accident on 10 May 2014 was the first and only occasion that he has come under notice. The cause of the accident was an impetuous decision. However, the erroneous entries in the logbooks display a casual disregard for the safety regulations.
Taking these factors into consideration, and the references provided which were not before the original decision maker, the Tribunal agrees that a suspension is warranted of all licences to bring home to Edwards the importance of the need for scrupulous observance of the regulations, but that the suspension should be reduced by period of 12 months to 6 months. Otherwise the conditions imposed should remain. The maintenance of the safety of the aviation industry is paramount. The licence holder’s duty attaching to the privilege of holding a licence carries with it concomitant obligation to ensure compliance with the requisite standards and that the licence holder is prepared to take responsibility for his or her actions.
DECISION
The Tribunal finds that the decisions under review of 14 March 2016 should be varied pursuant to s 43(1)(b) of the Administrative Appeals Tribunal Act 1975 (Cth) as follows:
(d)The applicant’s Grade 2 Flight Instructor Rating is suspended for a period of 6 months and until he has completed an instructor proficiency check (matter 2016/1455);
(e)The applicant’s private Pilot Licence – Aeroplane Category is suspended for a period of 6 months and until he has successfully completed a course In in Human Factors and Safety Systems (matter 2016/1428); and
(f)The applicant’s Commercial Pilot Licence – Aeroplane Category is suspended for a period of 6 months, contingent upon the applicant successfully completing courses in Human Factors and Safety Systems and to vary Edwards’ CPL and PPL by the imposition of a condition (matter 2016/1454). Such condition is as follows:
The holder is not to undertake any sales demonstration flights or advertising on behalf of Cirrus Aircraft Corporation or any other commercial entity other than under an Air Operator’s Certificate and the holder is to notify CASA prior to commencement of any such activities.
I certify that the preceding 74 (seventy-four) paragraphs are a true copy of the reasons for the decision herein of The Hon. Dennis Cowdroy OAM QC, Deputy President
..............................[sgd]..........................................
Associate
Dated: 21 June 2017
Dates of hearing: 30 and 31 January 2017, 1, 2 and 12 May 2017 Solicitors for the Applicant: Mr S Ferrier, Ferrier & Associates Counsel for the Respondent: Mr I Harvey Solicitors for the Respondent: Mr A Carter
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