Gorman and Civil Aviation Safety Authority
[2005] AATA 1036
•19 October 2005
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2005] AATA 1036
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2005/602
) No N2005/728
) No N2005/1252
GENERAL ADMINISTRATIVE DIVISION ) Re Henry Gorman Applicant
And
Civil Aviation Safety Authority
Respondent
DECISION
Tribunal Professor GD Walker, Deputy President Date19 October 2005
PlaceSydney
Decision The decisions under review are affirmed.
..............................................
Professor GD Walker
Deputy President
CATCHWORDS
CIVIL AVIATION SAFETY AUTHORITY – cancellation of chief pilot approval – cancellation of air operator’s certificate – applicant involved in aviation seaplane accident – whether the actions of the applicant as pilot in command of the aircraft were careless or reckless having regard to the weather conditions at the time of the accident – whether the actions of the applicant were not of an acceptable standard to hold a chief pilots approval – whether the actions of the applicant were such that his air operator’s certificate should be cancelled – examination of the circumstances surrounding the accident and the previous breaches alleged against the applicant and his company – examination of the Civil Aviation legislation requirements – held that the take-off was not careless or reckless within the meaning of the CAA – held that his combined breaches make him liable for cancellation of his chief pilot’s authority and cancellation of his AOC – the decisions under review are affirmed.
Civil Aviation Act 1988 ss 9A, 20A, 27, 28, 28BA, 28BAA, 28BD, 28BE, 28BF, 29(1A), 30
Civil Aviation Regulations s 138(1)
Civil Aviation Orders s 82.0, 82.0.5, Appendix 1
Re Coral Sea Airlines Pty Ltd and Civil Aviation Safety Authority [1999] AATA 329
Re Ellery and Civil Aviation Safety Authority [1999] AATA 744
REASONS FOR DECISION
19 October 2005 Professor GD Walker, Deputy President Summary
1. The applicant, Henry Gorman, is the chief pilot, owner and operator of an aviation seaplane business, Airfoto Pty Limited trading as Palm Beach Seaplanes, conducted out of Rose Bay, Sydney. Airfoto Pty Ltd is the holder of Air Operator’s Certificate No S558079-05 and Mr Gorman is the holder of an approval of appointment as chief pilot (Aviation Reference No 186056). On 20 January 2005, Mr Gorman was the pilot in command of a Cessna 185 floatplane engaged in carrying three passengers. While taking off in winds of approximately 25-28 knots, the seaplane rolled to the left and the nose and left wingtip struck the water, causing the seaplane to tip over and settle inverted in the water. Neither the applicant nor passengers were injured in the accident.
2. The respondent, the Civil Aviation Safety Authority (CASA), decided to cancel Mr Gorman’s chief pilot’s approval on the grounds that the applicant placed the passengers and general public at risk by authorising and conducting the flight in unsuitable weather conditions that resulted in the loss of control of the aircraft (AAT File No N2005/728) and cancelled the Air Operator’s Certificate (AOC) held by Airfoto on the grounds that as the applicant was considered personally unfit to hold an AOC, then the company controlled by the applicant, as a matter of logic, was also unfit to hold an AOC (AAT File No N2005/602). CASA subsequently refused to renew Airfoto’s AOC when it expired on 31 August 2005 (AAT File No N2005/1252). Those are the decisions to be reviewed by the tribunal.
Background
3. The applicant, Mr Gorman was born on 17 June 1962 and is aged 43. He is a qualified commercial pilot and holds a floatplane endorsement. He has 20 years’ flying experience, with approximately 6,000 flight hours and has performed 7,000 water landings. Mr Gorman is the chief pilot for, and owner of, the seaplane business Airfoto Pty Ltd (“Airfoto”), trading as Palm Beach Seaplanes. AOC No S558079-05 was issued to Airfoto on 13 August 2004, authorising charter and aerial work operations in Cessna 185 single engine floatplanes (T p37). Mr Gorman was granted approval as chief pilot of Airfoto on 19 August 2004 by instrument No SBAO/238/2004 (ARN 186056) (T p39).
4. On 20 January 2005, the applicant was the chief pilot of a Cessna 185 seaplane, registration VH-SBH, owned and operated by Airfoto, with three passengers on board. In attempting to take off at approximately 5.30 pm, in a northerly direction from the south-eastern side of Rose Bay, the applicant lifted the water rudders and took off straight into the wind. When the seaplane was airborne at approximately 10-15 feet, a strong gust of wind, estimated at approximately 25-28 knots, hit the seaplane on the right side, causing the seaplane to roll to the left, the left wing to stall and the left wingtip and nose to hit the water. The seaplane then tipped over and settled inverted in the water. Neither the applicant nor his passengers were injured as a result of the accident, but the seaplane suffered substantial damage and was subsequently written off by the company’s insurers (T pp464-470).
5. On 28 January 2005, the acting general manager of general aviation operations as delegate for CASA, notified Mr Gorman that he was required, in the interests of safety of air navigation, to undertake an examination to demonstrate that he continued to have the aeronautical knowledge and skills appropriate to his private and commercial pilot licences (T p413). He was also informed that in the interests of air safety it had been decided to suspend his private and commercial licenses in accordance with s 265(1) of the Civil Aviation Regulations 1988 (“CAR”). The applicant was informed that the decision had been made on the grounds that the delegate considered Mr Gorman had acted in a careless or reckless manner in attempting to take off in winds estimated between 20-28 knots on 20 January 2005 in light of the fact that the Cessna Pilot Operating Handbook (POH) and the Airfoto Pty Ltd company operations manual both show the maximum demonstrated crosswind for a C185 seaplane to be 13 knots (T p414). The delegate also advised him that “I also have serious concern as to your fitness to conduct floatplane operations safely due to your lack of knowledge and skills” (T p414).
6. On 9 February 2005, the acting area manager, Sydney Basin, as delegate of the respondent, notified Mr Gorman that he was considering cancelling his approval as chief pilot of Airfoto on the basis of the accident that occurred on 20 January 2005 and in light of previous relevant enforcement action taken against the applicant namely, the cancellation of his approval to conduct conversion training on ‘float alighting gear’ following an action where the applicant, as pilot in command, flew below 500 feet over boats on the Hawkesbury River on 17 March 2001; the formal counselling of the applicant on 14 May 2002 in connection with non-compliance by Airfoto between November 2000 and December 2002 of sections of the Civil Aviation legislation, being s 28BD (AOC holder to comply with all requirements of the legislation), s 28BE (AOC activities to be conducted with a reasonable degree of care and diligence) and s 28BF (AOC holder to maintain an appropriate organisation with suitable qualified personnel and a sound and effective management strategy); the issue of a notice of decision to refuse to issue an AOC on 28 November 2002; the fact that Airfoto did not hold an annual general meeting between November 2002 and August 2004; and the company applied for an AOC on 27 February 2003 and it was not issued until August 2004 (T pp419-421).
7. The letter also informed Mr Gorman that the incidents and breaches (T pp423-434) suggested that the company’s operations were not being conducted in compliance with the Civil Aviation Act 1988 (“CAA”), the Civil Aviation Regulations(“CAR”) or the Civil Aviation Orders (“CAO”); that his actions suggested a lack of professionalism and that he had not performed the duties of a chief pilot to an acceptable standard; his actions had placed passengers and the general public at risk; and the incident on 20 January 2005 and other matters outlined suggested a lack of commitment to safety and that his holding the privileges of chief pilot was an unacceptable risk to aviation safety. Mr Gorman was given 28 days to show cause why the decision should not be made (T p422).
8. On 9 February 2005, Mr Gorman also received notification from a delegate of CASA that it was considering suspending or cancelling AOC S558079-05 held by Airfoto Pty Ltd on the basis of the accident on 20 January 2005, previous relevant enforcement action (being the same as identified in the letter to Mr Gorman about his chief pilot licence), previous history of non-compliance (being the same as identified to Mr Gorman personally), and that the seaplane was operated contrary to the company’s operation manual and aircraft pilot-operating handbook. The delegate advised the applicant that his actions suggested that the company had not complied with the CAA, CAR or CAO; that the company had not taken reasonable steps to ensure that its activities were carried out with a reasonable degree of care and diligence; and that the company had failed to maintain an appropriate management strategy with suitably qualified personnel (T pp438-459). He was also given 14 days to show cause why the AOC should not be suspended or cancelled (T p441).
9. On 28 February 2005, the acting manager, airline operations of CASA informed the applicant that he was lifting the suspensions on his private and commercial pilot licenses, in order that he could undertake the examination to demonstrate he continued to have the aeronautical knowledge and appropriate skills to hold these licenses (T p460).
10. On 7 March 2005, the applicant underwent an examination of his aeronautical knowledge and skills and in particular as they applied to seaplane operations, with a Flying Operations Inspector (“FOI”) of the respondent. The applicant successfully completed that examination and on the recommendation of the FOI, a notice of termination of the suspension of the applicant’s two pilot licenses was issued on 11 March 2005 (Exhibit R4).
11. On 8 March 2005, the respondent allowed the applicant an extension of time to answer the three ‘show cause’ notices issued against him (T p461). By letter dated 15 March 2005, Mr Gorman responded to the ‘show cause’ notices (T p462). In his submission, the applicant conceded that he made a poor judgment on 20 January 2005 and that he would enter into an enforceable voluntary undertaking to enhance the safety of operations during times of excessive wind and storms. With regard to the previous notices and findings, he stated that he did not agree with CASA’s findings and that it was not correct nor fair to suggest “that I operated the aircraft in a careless or reckless manner or that I lack a commitment to a strong safety culture” (T p463). The applicant also set out the safety measures in place by the company and courses he had personally undertaken and asked that no decision be made to cancel his chief pilot’s approval or air operator’s certificate.
12. On 29 March 2005, Mr Gorman attended a ‘show cause’ conference with three representatives of the respondent (T p464). Mr Gorman informed the representatives that while the weather on the day of the accident was blustery with some storm activity, he considered that the conditions were not unsafe for flying and that he had witnessed two other seaplanes take off without incident just before his taking off.
13. On 16 May 2005, a delegate of the respondent notified the applicant that, having considered the facts and circumstances of the case and the submissions made by the applicant, a decision had been made to cancel Airfoto Pty Ltd’s AOC No S558079-05 pursuant to s 28BA(3) of the CAA (T p4). The letter also advised the applicant that pursuant to s31A of the CAA the decision was automatically stayed pending the lodging of an appeal with the Administrative Appeals Tribunal and for further such time as a decision of the AAT on the application comes into operation (T p9). On 16 May 2005, the respondent also notified the applicant that it had decided to cancel his chief pilot approval No 186056 (T p30). On 16 May 2005, Mr Gorman lodged an application with the tribunal for a review of those decisions.
14. At the hearing of this matter, the applicant was represented by Peter Lithgow of counsel, instructed by John Maitland, solicitor, Grundy Maitland & Co, lawyers of Melbourne, and the respondent was represented by Adam Anastasi, legal officer of CASA. The documents before the tribunal comprised the documents produced pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (“the T Documents”), consisting of three volumes, taken into evidence collectively as Exhibit R1, as well as evidence submitted by both parties at the hearing. Oral evidence was given in person for the applicant by Mr Gorman and Stephen Krug, and for the respondent by Mike Nolan and Lee Anthony Webb.
Relevant Law and Policy
15. Section 9A of the Civil Aviation Act 1988 (CAA) provides:
(1)In exercising its powers and performing its functions, CASA must regard the safety of air navigation as the most important consideration.
(2)Subject to subsection (1), CASA must exercise its powers and perform its functions in a manner that ensures that, as far as is practicable, the environment is protected from:
(a) the effects of the operation and use of aircraft; and
(b) the effects associated with the operation and use of aircraft.
16. The provisions of the Civil Aviation Orders relate to the approval of a chief pilot. Section 82.0 clause 5 of the CAO provides “Where a Chief Pilot is required by this Part to be appointed by an operator, it is a condition of the operator’s certificate that the operator will comply with the requirements of Appendix 1 of this section”. Section 82.0 Appendix 1 of the CAO sets out the responsibilities of the Chief Pilot but, before he or she may carry them out, the Chief Pilot must be approved in writing by CASA (Appendix 1 clause 1.1). The responsibilities of a Chief Pilot must include the following unless CASA has given written dispensation:
2 RESPONSIBILITIES OF CHIEF PILOT
2.1 The 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.
2.2 The 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 Part48 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.
3 DELEGATION BY CHIEF PILOT
3.1 A Chief Pilot, in exercising any responsibility, may delegate duties to other members of the operator’s staff, but may not delegate training and checking duties without the written approval of CASA.
4 QUALIFICATIONS OF CHIEF PILOT
4.1 A Chief Pilot must, unless CASA otherwise approves in writing, hold at least the minimum qualifications set out in Table A.
4.2 Where the operator engages in operations under the instrument flight rules, the Chief Pilot must hold an instrument rating appropriate to the category and class of operations conducted by the operator.
4.3 Unless otherwise approved in writing by CASA, a Chief Pilot must hold a licence with the appropriate endorsements and ratings to permit him or her to act as pilot in command of all operations authorised by the operator’s certificate.
5 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.
5.2 In 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.
5.3 CASA 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.
5.4 An approval may be given subject to conditions specified in the instrument of approval.
5.5 An 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.
5.6 An approval relates only to the operator specified in the notice of approval.
6 CANCELLATION OR SUSPENSION OF APPROVAL
6.1 In 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.
17. Section 20A of the CAA provides:
Reckless operation of aircraft
(1) A person must not operate an aircraft being reckless as to whether the manner of operation could endanger the life of another person.
(2) A person must not operate an aircraft being reckless as to whether the manner of operation could endanger the person or property of another person.
18. The grant of an Air Operator’s Certificate falls within the provisions of the Civil Aviation Act 1988. Section 27 provides that an AOC authorises the flying or operation of an aircraft, other than the operation of a foreign registered aircraft on regulated domestic flights, by authorising the flying or operation of aircraft included in a class of aircraft described in the AOC. Section 28 provides:
28. CASA must issue AOC if satisfied about certain matters
(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
…
28BA General conditions
(1) An AOC has effect subject to the following conditions:
(a) the condition that sections 28BD, 28BE, 28BF, 28BG, 28BH and 28BI are complied with;
(aa) the condition subject to which the AOC has effect because of section 28BAA;
(b) any conditions specified in the regulations or Civil Aviation Orders;
(c) any conditions imposed by CASA under section 28BB.(2) If a condition of an AOC referred to in paragraph (1)(a) or (aa) is breached, the AOC continues, despite the breach, to authorise flights or operations to which the condition relates.
(2A) If a condition of an AOC referred to in paragraph (1)(b) or (1)(c) is breached, the AOC does not authorise any flight or operation to which the condition relates while the breach continues.
(3) If a condition of an AOC is breached, CASA may, by written notice given to its holder, suspend or cancel:
(a) the AOC; or
(b) any specified authorisation contained in the AOC;
whether or not the breach is continuing.
(4) Before making a decision under subsection (3), CASA must:
(a) give the holder of the AOC a notice setting out the reasons why CASA is considering making the decision; and
(b) allow the holder of the AOC to show cause, within such reasonable time as CASA specifies in the notice, why CASA should not make the decision.
(5) If CASA makes a decision under subsection (3), the notice of its decision must include a summary of section 31A. However, a failure to include such a summary does not affect the validity of the notice.
28BAA Certain conditions for grant of AOC also have effect as ongoing conditions on the AOC
An AOC has effect subject to the condition that CASA remains satisfied as mentioned in paragraphs 28(1)(a) and (b) in relation to the operations that are covered by the AOC.
28BD Compliance with civil aviation law
The holder of an AOC must comply with all requirements of this Act, the regulations and the Civil Aviation Orders that apply to the holder.
28BE Duty to exercise care and diligence
(1)The holder of an AOC must at all times take all reasonable steps to ensure that every activity covered by the AOC, and everything done in connection with such an activity, is done with a reasonable degree of care and diligence.
(2) If the holder is a body having legal personality, each of its directors must also take the steps specified in subsection (1).
(3) It is evidence of a failure by a body and its directors to comply with this section if an act covered by this section is done without a reasonable degree of care and diligence mainly because of:
(a) inadequate corporate management, control or supervision of the conduct of any of the body's directors, servants or agents; or
(b) failure to provide adequate systems for communicating relevant information to relevant people in the body.
(4) No action lies, for damages or compensation, in respect of a contravention of this section.
(5) This section does not affect any duty imposed by, or under, any other law of the Commonwealth, or of a State or Territory, or under the common law.
28BF Organisation, personnel etc.
(1) The holder of an AOC must at all times maintain an appropriate organisation, with a sufficient number of appropriately qualified personnel and a sound and effective management structure, having regard to the nature of the operations covered by the AOC.
(2) The holder must establish and maintain any supervisory positions in the organisation, or in any training and checking organisation established as part of it, that CASA directs, having regard to the nature of the operations covered by the AOC.
19. Regulation 138(1) of the Civil Aviation Regulations 1988 provides:
138 Pilot to comply with requirements etc of aircraft’s flight manual etc
(1) If a flight manual has been issued for an Australian aircraft, the pilot in command of the aircraft must comply with a requirement, instruction, procedure or limitation concerning the operation of the aircraft that is set out in the manual.
Penalty: 50 penalty units.
20. Section 30 of the CAA provides:
Weather etc. to be a defence
(1) In any proceedings for an offence against this Act or the regulations, it is a defence if the act or omission charged is established to have been due to extreme weather conditions or other unavoidable cause.
(2) Any defence established under subsection (1) need only be established on the balance of probabilities.
Issue
21. The first issue for the tribunal is whether Mr Gorman’s approval as chief pilot for Airfoto should be cancelled or whether his suspension should be lifted and he should be permitted to resume his position as chief pilot for Airfoto, taking into account his actions on 20 February 2005 and the favourable assessment made by a flying operations inspector on 7 March 2005. The second issue relates to whether the air operator’s certificate held by Airfoto Pty Ltd should be cancelled.
The Rose Bay accident 20 January 2005
22. The takeoff accident at Rose Bay on 20 January 2005, with the pilot and three passengers aboard, was the principal reason for the administrative action taken by the respondent against the applicant. In his evidence at the hearing, Mr Gorman said the day of the accident was overcast with a blustery north easterly wind. A thunderstorm was developing in Sydney’s west but was still too far away to have much effect on conditions at Rose Bay. He did not think conditions were unsafe for flying, having just landed on the eastern side of Rose Bay on a flight from Palm Beach. Two other seaplanes, a DHC‑2 Beaver and a Cessna 185, had taken off successfully shortly before in a northerly direction towards Strickland House. As he left the dock at the controls of the Cessna A185F VH‑SBH, the wind was “brisk” and there was a choppy sea with whitecaps and waves of about a foot to 18 inches high. He chose not to use the same takeoff track as the other two aircraft, but instead taxied over towards the eastern side of Rose Bay where the water was calmer, so as to lessen the impact forces on the airframe during take off and increase passenger comfort. He knew, however, that by so doing he ran the risk of encountering turbulent air - it was recognised in seaplane operations that in strong winds an aircraft would face rough water and smooth air, or smooth water and turbulent air. His company’s own operations manual warned that “dumping” will be encountered in Rose Bay when there are winds exceeding 20 knots from the northeast (T p491).
23. He had planned to use a curved takeoff run into the wind and had no visual reference point to aim for, nor had he preselected a point at which the takeoff would be aborted if it were not proceeding as planned. Abort decision points are not used with floatplanes, he said.
24. He also thought that the more easterly track would help him to parallel the wakes of vessels on the harbour and the surface chop. Windshear was usual when there was a wind from the north, northeast or southwest and he was aware that turbulence was possible, but the sea state gave no indication of it. On the other hand, shear tends to be visible on water only after it strikes. But he had never felt violent shear in that area before.
25. Mr Gorman has not been entirely consistent in his accounts of his departure point and takeoff run. On a map that he marked with the positions of the three aeroplanes and their respective takeoff directions (T p494), he showed the two earlier flights departing from just in front of the seaplane jetty in a direction about five degrees east of grid north, with his own takeoff track shown as about five degrees west of north. At the hearing, however, he marked his starting point as rather more to the west and tracking five or 10 degrees east of north. The latter version was more favourable to his claim that he had not taken off with an excessive crosswind.
26. The applicant denies that he attempted to take off in a crosswind of between 19 and 24 knots (the maximum demonstrated crosswind component for the Cessna 185 being 13 knots), saying that it would be physically impossible to do so because with its water rudders retracted for takeoff the aeroplane would automatically weathercock into the wind.
27. He began the takeoff run holding full right aileron and noticed that the aircraft was slow to accelerate, but not to any “untoward” extent. The aircraft became airborne at about 45 to 50 knots, but just after it had left the water, at a height of five to 10 feet he experienced an unforeseen windshear that caused the aeroplane to roll sharply to the left. He quickly corrected the roll, with initial success, but a further immediate windshear caused it to roll further to the left and he lost control. He said, with some hesitation, that the interval between the first and the second lifts of the right wing was about five seconds. He did not remember hearing the stall warning horn sounding.
28. In his affidavit (Exhibit A5) Mr Gorman specifically denied the respondent’s allegation that he had continued the takeoff even though there were indications before liftoff that a loss of control was imminent.
29. He also said the takeoff was conducted into wind, not in a crosswind. The wind in the area from which he started was only about 15 knots, with only a “whiff” of crosswind, of about three knots.
30. On the second day of the hearing, under cross-examination, Mr Gorman’s account changed materially. While initially saying that the Cessna first began to slip and yaw to the left when it was five to ten feet above the water, he then conceded that the skid to the left had begun before liftoff. He said he corrected the slip and yaw before the aircraft became airborne and that to abort the takeoff at that stage would have resulted in loss of control. When this difference between his two accounts was pointed out to him, Mr Gorman repeated a complaint he had previously made that, while he had submitted a written report on the accident at the respondent’s request, the respondent had not interviewed him face to face until the show cause hearing on 29 March 2005. That did not, of course, explain the discrepancy.
31. That inconsistency was highly material, because all the evidence except Mr Gorman’s indicated that if he had encountered a sharp yaw and slip to the left while still on the water, the proper course was to abort the takeoff by cutting the throttle and turning the aircraft into the wind. Mr Gorman conceded that the book How To Fly Floats, by J J Frey, published by the Edo Float Corporation, and which Mr Gorman’s company recommended to its pilots, gave precisely that advice. He countered, however, that it is a “basic” work that he recommended for training purposes, apparently implying that more experienced pilots could disregard it at their discretion.
32. Mr Gorman admitted that with the wisdom of hindsight he would not attempt to take off in those conditions again, but pointed out that he had adopted new measures, such as a ban on takeoffs in actual winds exceeding 30 knots, in order to prevent a recurrence. When it was pointed out to him that an earlier accident involving his company at Palm Beach should have made him more cautious, he said that eddies were a factor in that case, and that he had fact learned from the experience.
33. He denied that he had taken off in bad conditions in order to be away from Rose Bay before an approaching thunderstorm arrived or that he had taken a chance because he did not wish to disappoint his passengers. He denied that he had any other particular reason for wishing to return to his base at Palm Beach, saying, somewhat unconvincingly, that he did not know where he had been intending to spend the night.
34. The applicant called as a witness Mr Stephen Krug, a highly experienced chief pilot and seaplane operator of 20 years’ standing with over 14,000 hours flight experience and more than 19,000 water takeoffs and landings to his credit. Mr Krug confined his oral and written evidence (Exhibit A6) to the Rose Bay accident of 20 January 2005.
35. Mr Krug is the chief pilot and owner of Sea Wing Airways and has known and observed the applicant for some four years. He believes the applicant maintains very good standards and is always keen to provide the safest possible outcome. He takes a close interest in the weather and has many times suggested cancelling a flight because of adverse conditions. He does not sacrifice safety to commercial considerations, a fact that is reflected in his apparently modest means and lifestyle.
36. Mr Krug was not present at Rose Bay at the time of the accident, but was at Narrabeen Beach, about 15 kilometres north of Sydney, and recalled that the wind there was lively and from the northeast. There appeared to be storm activity developing to the west of Sydney, and in those conditions gusts can frequently increase from 25 to 30 knots.
37. Mr Krug had studied a map on which Mr Gorman had marked his takeoff path (presumably T p 494) and noted that the applicant reported that the aircraft took longer than he expected to reach takeoff speed. That was probably caused by windshear created by the effect of the wind passing over the terrain to the east and which could have caused a localised reduction of his air speed at a critical time just on lift off.
38. In his statutory declaration (Exhibit A6), Mr Krug stated that
In my opinion, …; after the aircraft lifted off the water a lively gust ‘picked up’ the right wing of the Cessna, which was flying at relatively low airspeed; and caused the lack of control reported by the pilot.
In cross-examination, however, Mr Krug said that a crosswind would not lift the upwind wing but would simply cause the aeroplane to weathercock, thereby reducing the lift on the right hand side. Once the aeroplane was airborne, the only effect of a crosswind is to create drift, which would not affect its attitude. He was quite definite that the crosswind could not have caused the right wing to lift. That inconsistency between the witness’s written statement and his oral evidence was never resolved. I therefore prefer on this point the evidence of Mr Nolan, who said that a sudden crosswind gust at low altitude just after liftoff could have caused the tipping movement by causing the right wing to generate more lift and possibly making the left wing stall. Having 20 degrees of flap down would also tend to shield the wing on the downwind side at the same time as the up wind wing was generating more lift.
39. Mr Krug disagreed with the ATSB report’s conclusion that the pilot took off in a crosswind exceeding the limits specified in the Pilot’s Operating Handbook for that aircraft. No seaplane pilot he was aware of, Mr Krug said, is able to commence a water takeoff in a crosswind of more than 13 to 15 knots. By virtue of seaplane design, the aircraft would always weathercock in such conditions when the water rudders were raised for takeoff. There is not one totally correct or incorrect way of taking off or landing a seaplane, he said. In this instance the applicant had weighed the options available and elected to take the more comfortable one. The other two seaplanes that had departed shortly before he did had opted for relatively open water, which would have presented greater stresses on the aircraft because of the chop but would have presented less disturbed air and therefore reduced the possibility of windshear.
40. The applicant had chosen to use the smoother water on the eastern side of the bay, a choice which, in Mr Krug’s view, was preferable in the circumstances because it would reduce the impact forces of the airframe and increase passenger comfort. His decision to take off was not unreasonable and it just happened that his aircraft encountered an unusual and unpredicted gust phenomenon at a critical stage just after liftoff that caused a temporary loss of lateral control at a height from which it was impossible to recover before impact. He acknowledged that the 2001 Palm Beach accident was partly caused by windshear, but said that the applicant had gained heightened awareness from that occurrence and a reminder of the need for vigilance. His decision henceforth not to operate in winds over 30 knots would preclude the risk of windshear, but it was never possible to remove all risk in seaplane operations. Mr Krug did not think that the loss of acceleration in the takeoff was something that should necessarily cause a pilot to abort unless it was very marked.
41. Mr Krug conceded that the presence of windshear downwind from the terrain east of the bay was not unforeseen, but opined that Mr Gorman would have measured the pros and cons at the time. That was why he started his takeoff run where he did, though it entailed a trade-off between smoother water and “confused” air.
42. In evaluating Mr Krug’s evidence it is also important to note that until he was under cross-examination he had not been aware that the Cessna had begun to yaw and skid to the left before it became airborne. That would necessarily have influenced his view of the wisdom of pressing on with the takeoff rather than aborting it. He said that the leftward lurch did not suggest a right crosswind component, but his explanation on that point was rather confused, and that is another reason why I prefer Mr Nolan’s analysis of the events.
43. Mr Mike Nolan is a flying operations inspector based at the CASA Bankstown Field Office. He has 5,660 hours of flight time as a pilot, including 180 hours in variety of floatplanes and floating hull seaplanes. His duties include conducting ground and air surveillance of operators and operations involving floatplanes engaged in charter and regular public transport flights since 1990. He is required to make assessments and recommendations in relation to applicants for chief pilot appointments and applications for air operator certificates. He investigates accidents, incidents and complaints involving air operations. On the day after the Rose Bay accident, he spoke to the applicant and advised him to write an account of what had happened, emphasising that he should take the time to make sure that he was reporting exactly what had occurred. He also spoke to the applicant by telephone on 24 January 2005 about the report that the applicant had prepared (T pp394‑395).
44. Knowing that the applicant had been flying under a cross-hire arrangement with Sydney Harbour Seaplanes Pty Limited, he spoke to that company’s chief pilot, Mr Gary Fenelon, on 25 January 2005 about the actual conditions in Rose Bay at the time of his own takeoff some 10 minutes before the applicant. Mr Fenelon said that there were waves about 1.5 feet high in Rose Bay and that “conditions for takeoff for a Cessna 185 were atrocious, even for a takeoff into wind” (Exhibit R6).
45. Mr Fenelon’s DHC‑2 Beaver and the Cessna 185 flown by Mike Breen had avoided any crosswind by taking off directly into the wind from a position just in front of the floatplane base wharf. They had accepted the rougher water in exchange for an absence of crosswind and a shorter takeoff run. Even so, Mr Fenelon had found it difficult to decide whether or not to fly in those conditions, although the Beaver is a heavier and more powerful machine than the Cessna 185. Neither party called Mr Fenelon or Mr Breen to give evidence.
46. Mr Nolan quoted a Bureau of Meteorology report (T p409) for Sydney Harbour on 20 January 2005 which stated that at 5.25 pm the wind speed was 24 km/h (13 knots) and the maximum gust was 39 km/h (21 knots). At 5.46 pm, wind speed was given as 42 km/h (23 knots) gusting up to 54 km/h (29 knots). It also showed that the thunderstorm front came through the harbour area at 5.13 pm, before Mr Gorman’s departure, but Mr Nolan thought the storm itself was too far away to have affected the takeoff. The problem was mainly a strong, gusty north-easterly and the rough water, conditions that the applicant himself had described as “nasty”.
47. Mr Nolan said the applicant had made errors of judgment on the day by:
(a)attempting a takeoff at all, and
(b)pressing on when it was apparent even before liftoff that he was losing control.
Mr Gorman’s references to slipping and yawing to the left, with the right wing continuing to lift, all described symptoms of a crosswind beyond the aircraft’s maximum demonstrated crosswind and therefore the pilot’s ability to control it. Before taking off, a pilot decides on the point where he would abort if conditions dictate, and the applicant should have aborted the takeoff while the aircraft was still on the water by closing the throttle at the first sign of the right wing being lifted by the crosswind and of the resulting yaw and slip caused by the downwind (left) float digging into the water. Mr Gorman, on the other hand, had said that abort decision points were not used in floatplane operations.
48. The applicant’s action of continuing with the takeoff resulted in the loss of control that led to loss of the aircraft, Mr Nolan said. At the completion of a flight test with the applicant on 7 March 2005, Mr Nolan had asked the applicant about the accident, and specifically why he had taken off. Mr Gorman had replied,
I did not want to disappoint the passengers (Exhibit R6).
(In his oral evidence Mr Gorman said “I was intent on getting the job done”.)
49. He had started the takeoff run in protected water where there would be no weathercock tendency but had accelerated into the turbulent area where the crosswind had struck. The weathercock tendency had been countered by the left float digging into the water and yawing the aircraft to the left. Mr Nolan conceded that he had never asked the applicant specifically whether the left float had dug in, but said the conclusion was based on the available evidence and on his experience. It was the most likely explanation for why the Cessna did not weathercock but had instead swung in the opposite direction. And although Mr Gorman had not specifically mentioned that the left float had dug in, it was significant that initially neither did he mention that the aircraft was already airborne at the time of the accident.
50. Aborting the takeoff would not have been more dangerous than pressing on, Mr Nolan said, and in fact that was the course of action recommended in the applicant’s own training literature and other floatplane handling guides. He had taken risks that were not unforeseen, as was apparent from Mr Fenelon’s account. By taking risks out of a desire not to disappoint the passengers, he had allowed commercial pressures to prevail over safety. The fact that the Beaver and the other Cessna 185 had just taken off successfully might have encouraged him to depart, but their takeoffs had been directly into the wind. The actual degree to which windshear, turbulent airflow and crosswind contributed to the loss of control could not be positively determined, and it was very likely that all three phenomena were present at the time in a mix of what a reasonable person would describe as severe weather conditions. The end result was that a highly experienced pilot in a serviceable aircraft lost control and the aircraft crashed as a result of the severity of the conditions. It was not just one of those things that can happen in aviation, because during the takeoff run there were indications that should have prompted him to abort.
51. Following the flight test on 7 March 2005, Mr Nolan concluded that Mr Gorman had the requisite knowledge and skills to fly the aircraft and recommended that the suspension of his private and commercial pilot’s licences be lifted . That highlighted the fact that the accident was caused, not by lack of skill, but by poor judgment and decision-making by the applicant as a pilot, chief pilot and operator. He had a good record as a pilot and chief pilot for other seaplane operators, and could continue to play a part in the industry in that capacity. In working for another operator, he would not have the responsibility for making tough decisions of the kind that he faced on 20 January 2005.
52. Mr Anastasi submitted that Mr Gorman’s evidence on this issue, as on the others, was unreliable, as was apparent from his tendency to give evasive answers rather than directly answering questions. Indeed, he did frequently answer straightforward questions with long, discursive and unresponsive replies. He also claimed he could not recall a number of matters of which one would expect him to have a clear recollection and gave differing accounts of material facts. I conclude that Mr Nolan’s appraisal of the Rose Bay accident is to be preferred to Mr Gorman’s account or to Mr Krug’s assessment, which although I think was intended to be truthful, did suffer from the inconsistencies mentioned above.
Palm Beach accident 23 December 2001
53. At 5.10 pm on 23 December 2001, the Cessna C185F floatplane VH‑SLC took off from Pittwater, near Palm Beach, with five passengers on board. The aircraft was operated by Airfoto Pty Limited, trading as Palm Beach Seaplanes, and the pilot was Lee Webb. After climbing to about 200 feet, the Cessna rapidly lost altitude, bounced twice on the water and came to rest inverted on a beach. It was extensively damaged and the passengers were taken to hospital, although only one was detained overnight. The pilot, Lee Webb, suffered a blow to the head and has no recollection of events between the time he flared the aeroplane and when he found himself standing on the beach.
54. The accident report (T pp139‑149) listed a number of factors that contributed to the accident.
55. The first was that the pilot did not use the full takeoff distance specified in the company Authorised Landing Area register in relation to Palm Beach, in contravention of CAR 215(9). The ALA instruction was that the takeoff run should begin from a particular red marker (actually a port side marine navigation marker), but Mr Webb started his takeoff from a point 200 metres short of it. He said that he was never instructed by Mr Gorman to commence takeoffs from the marker and that every time he was in the aircraft with Mr Gorman when it was taking off from Palm Beach, it was never taxied back to the red marker. He said that on at least one occasion during his check flights at Palm Beach, Mr Gorman had told him not to bother to taxy to the red marker for takeoff as they were at a light weight.
56. Although Mr Gorman would have been aware of that allegation before the proceedings, it was not specifically put to him and he therefore did not specifically deny it. He did, however, take the general position that Mr Webb was a disgruntled former employee whose critical view of the applicant’s operations was not supported by other pilots he had employed and that his evidence should not be believed.
57. Secondly, the report stated that the pilot had not made appropriate use of power and flaps during takeoff, having reduced power to a manifold pressure of 25 in/Hg and 2,500 rpm. Full boost with this engine equates to about 29 in/Hg at sea level, and 2,700 rpm. The pilot was questioned about his action of reducing power in initial climbout while still holding 20 degrees of flap and replied that in his training the applicant had instructed him to use reduced power after takeoff, at about 50 feet usually, and in the initial climb, and recommended 25 in/Hg and 2,500 rpm. Mr Webb also said he had been told that on the first takeoff of the day, if he was alone in the aircraft, he was to reduce power to 24 in/Hg and 2,400 rpm for initial climb.
58. The Pilot’s Operating Handbook and the Company Operations Manual both mandated full power for takeoff and initial climbout, with 25 in/HG and 2,500 rpm (with no flap) being recommended only for en route cruise climb. Mr Webb said he had been told to use the reduced power settings to increase engine life and for noise abatement purposes. At the hearing Mr Gorman said that reducing power to 25 in/Hg at 50 feet was a standard procedure unless there was an obstacle to be cleared. When it was pointed out to him that the manufacturer recommended full boost for initial climbout, he replied that his instruction to his pilots was to use cruise climb only when it was safe to do so.
59. A further matter of concern arising out of the Palm Beach accident, although not apparently a factor in the accident itself, was that the applicant did not carry out engine runup checks (including magneto checks) before each flight as required by the regulations. Mr Webb said that on the day of the accident he performed the runup checks in the morning and in the middle of the day and that it was common practice in the company for pilots not to perform the required pre-takeoff checks before every flight. He often saw the applicant take off without such checks and had been told by him that the checks cause excessive propeller wear because of the effect of salt water spray. He had said they were not required every time, and when you do them, make them quick. For example, Mr Webb recalled one occasion in mid December 2001 when he had flown the aircraft in the morning for one flight. The applicant flew it after him, until about 2.00 pm. Mr Webb was to fly it later in the afternoon on a charter flight, but when he performed the pre-flight checks he found that one magneto had failed. That raised the possibility that through failing to perform the runup checks on a previous flight or flights, the applicant had actually flown the aeroplane on one magneto.
60. While Mr Webb was being cross-examined on this point, Mr Gorman interjected that it was acceptable to perform the first check of the day at the prescribed revolutions (in this case 2000 rpm) but the later ones at 1000 rpm. Counsel put that proposition to Mr Webb, who replied that he had never been taught that. He also rejected the suggestion that in private pilot licence training pilots were now instructed to that effect. The applicant produced no evidence to support the proposition that full runup checks are not required before each flight. Any compromising of the requirement to perform those checks before every takeoff would be a radical departure from many decades of standard practice with piston engines and I would require clear documentary evidence to show that such a change had been made. From that aspect of the evidence I can only conclude that the applicant did indeed follow, and recommend to his pilots, the practice of not performing pre‑takeoff checks in all cases.
61. Next, Mr Webb gave evidence that before the accident flight he did not provide the required passenger safety briefing because the applicant had told him that when the passengers had been carried earlier in the day and they recalled the briefing, it was not necessary to repeat it. The applicant had told him to tell CASA that he had performed the full briefing before the flight, and initially he did, as a result of being “pressured” by the applicant. The applicant had also wanted him to lie about performing the runup checks before the takeoff. He stated that immediately after the applicant received his show cause notice, he said to Mr Webb words to the effect that,
I am not threatening you, but unless you are prepared to help me I can make life difficult for you in regards to future employment. It will only take a couple of phone calls.
Earlier he had told Mr Webb to lie because CASA was out to get him.
62. Mr Gorman denied saying that there was no need for a second briefing on the return flight if the passengers remember the initial one, adding that he did not know Mr Webb had not given the safety briefing on the flight in question until two months later. He had not told Mr Webb to lie to CASA, but if everything had been done correctly he would want him to say so. It was only later that he realised that Mr Webb was not telling the truth.
63. The respondent also alleged that the passengers had not been weighed and no weight and balance sheet (load sheet) was prepared for the flight. Mr Webb said that he had not completed a load sheet for the accident flight or for any other flight with the applicant’s company, and that the applicant, although chief pilot, had never asked him for a load sheet for any completed flight. That was a breach of the company operations manual and of CAR 215(9). Three days after the accident, the applicant had told Mr Webb to complete load sheets for the accident flight and the period of two weeks before it, covering the area that CASA might be expected to check. He had also asked Mr Webb to lie to CASA by saying that he had completed a load sheet before the accident flight. Mr Gorman conceded that he had probably told CASA that he only weighed passengers if he thought the aircraft might exceed its maximum takeoff weight and that he frequently did not complete load sheets. He explained that he and his pilots knew from experience what the takeoff weight was and so they filled that in after the event. When asked at the hearing whether Mr Webb had prepared a load sheet for the accident flight, Mr Gorman replied that he did not recall. He also said he did not recall whether he had asked Mr Webb to prepare load sheets for all flights for the preceding two weeks.
64. A further concern that emerged in connection with the Palm Beach accident was whether the applicant had administered to Mr Webb the six monthly check of pilot flying skills required by the applicant’s operations manual before he began his employment with the applicant’s company.
65. On 21 September 2001, shortly before he began to work at the applicant’s company, the applicant had taken him for a flight “to see what you remember” about floatplane handling. That flight had lasted a total of one hour and there were two shorter flights of 0.4 hours and 0.2 hours on 24 September and 27 September. At no time was Mr Webb told that the flights were part of his regular required checks and the flights did not include any upper air work, stalls, steep turns, go arounds or missed approaches. There was no oral discussion of company flight planning or weight and balance requirements. The CASA investigation concluded that the logged flight times would have been insufficient to cover all the items that Mr Gorman said had been checked. At the hearing Mr Gorman stated that he had performed all the checks as required, although he was rather ambivalent on the subject of stalls. He said he did require Mr Webb to demonstrate stall recovery, but added that one does not deliberately stall floatplanes because they are unstable. For the rest, he said Mr Webb was simply lying.
Low flying 17 March 2001
66. On 17 March 2001, the Cessna VH‑SLC piloted by the applicant performed low level manoeuvres below 500 feet (at least as low as 100 feet) over the Hawkesbury River (T pp96‑97). The manoeuvres included a 360 degree turn at 250 feet above terrain, and then passing over boating traffic at that altitude (T p96). Mr Gorman conceded that before that flight, he had been counselled by CASA for other low flying (below 500 feet) breaches, but said that on the day in question he was performing flying training or a check flight for Martin Stiles (T p95).
67. CAR 157 prohibits flying an aeroplane over any populous area at a height lower than 1,000 feet, or over any other area at a height less than 500 feet. The regulations provide a number of exemptions from that restriction, which relevantly include:
·flying training over a designated training area
·a baulked approach procedure or practice under the supervision of a flight instructor or check pilot
·flight in the course of actual takeoff or landing at an aerodrome.
68. CAR 166(1)(g) also provides that a pilot must not alter heading from the takeoff heading at a height less than 500 feet above terrain unless it is necessary because of the terrain.
69. The applicant gave evidence that he had taken off from Cottage Point, about four or five kilometres from where the aircraft was observed over the river. On that basis CAR 166 could have no possible application to the flight, because once clear of terrain at Cottage Point he would have been well above 500 feet by the time he was four or five kilometres away.
70. The incident did not take place in an authorised training area. At the hearing Mr Gorman said he was testing Martin Stiles for a baulked approach, but as he was not an instructor or check pilot he could not come within that exemption either.
71. He then said that the incident was exempt because he was on an approach to land. When it was pointed out to him that his own earlier explanation (T p95) made it clear that he had no intention of landing, he replied that he could not recall, that it was a subjective thing and that witness statements had to be treated with care. In this case, unfortunately for Mr Gorman, the witness was a CASA flight operations inspector who had happened to be out boating with his son. The witness said the manoeuvres he observed were not consistent with forced landing practice (forced landing practice usually entails a baulked approach). The aircraft appeared to be under full power and he heard no change in engine tone throughout the episode. He described the manoeuvres as “reckless and dangerous” (T pp96, 97).
Aborted takeoffs 13 November 2000 and 26 January 2001
72. On 13 November 2000, a pilot employed by the applicant, Gultekin Kizilgul, aborted two takeoff runs in VH‑SLC on a passenger carrying operation near Palm Beach, the first because the aircraft refused to rise onto the step and the second because it was unable to gain sufficient altitude (T p42). It emerged that when calculating the takeoff weight, the pilot had used a basic empty weight that did not take into account other items on board the aircraft, such as seven life jackets, a fire extinguisher and an anchor, in circumstances where the aircraft was only two kg below its maximum takeoff weight (T p57). A correct calculation would therefore have shown that it was overweight.
73. The applicant thereupon amended the company operations manual to provide a different basis for takeoff weight calculation and assured CASA that
I am confident that with these limitations in place there will be no reoccurrence (sic) of the take-off incident which occurred on the 11 November 2000 (T p60).
Yet only a matter of weeks later, on 26 January 2001, Mr Kizilgul aborted a takeoff in VH‑SLC after it became airborne on a passenger flight, resulting in the aircraft becoming marooned on a sand bed in Rose Bay. The aircraft was over its maximum takeoff weight, as the pilot did not take into account 15 kg of baggage. Moreover, one of the floats had 30 to 40 litres of water in it because the downpipe used to pump water out of the float had become dislodged (T p74). The pilot said that he had pumped the floats before the flight in question (T p85) but the respondent contended that an experienced pilot conducting a proper pre-flight inspection would have detected the missing downpipe and the water in the float.
74. At a show cause conference the applicant had conceded that an experienced float operator might detect the fault, but said that he had people pumping the floats who were not experienced, and that even with experience the defect might have been missed (T p192). At the hearing Mr Gorman pointed out that he had himself reported the incident and suspended the pilot. Of course, he had little option other than to report it, as a seaplane stranded on a sand bank in Rose Bay was hardly likely to escape official detection.
75. He had subsequently re-engineered the floats so as to prevent a recurrence of the fault. Nevertheless, the respondent contended, the later incident, coming so soon after the earlier aborted takeoffs, showed that Mr Gorman had made a poor response to the weight problem initially revealed by the earlier investigation. He also persisted in not requiring pilots to prepare to load sheets for every flight, despite a requirement in the operations manual, with which the applicant was bound to comply pursuant to CAR 215(9).
Maintenance breaches
76. It was not disputed that apart from one entry on 2 February 2001, relating to aircraft performance, no defects were recorded on any maintenance release for VH‑SLC from 28 May 1999 until 29 February 2002 (T p 497‑511). The respondent contended that the lack of recorded defects in the maintenance releases over a two year period, when compared to the maintenance recorded in the aircraft log books, indicated that the applicant had a practice of not recording defects on the maintenance release as required by the regulations.
77. Mr Webb stated (Exhibit R7) that from the time he began flying with the applicant’s company, the applicant had told him not to record maintenance problems on the maintenance release. He appeared to rely on his memory instead. Mr Webb saw that as a problem and adopted the practice of keeping a “snag sheet” with the maintenance release, showing the problems that had developed and that were not recorded on the maintenance release. On the occasion noted above in which Mr Webb found that one magneto had failed, the aircraft had been repaired at Bankstown but nothing was recorded on the release.
78. As that incident showed, many of the defects that were not properly recorded were serious. They included defects with the stabiliser trim (T pp372, 512), a faulty ignition lead (T pp373, 507, 522), a loose horizontal stabiliser rear attachment (4 June 2000), and an inoperative avionics master switch (T pp373, 503, 532). In addition, Mr Gorman had flown the Cessna despite the defective stabiliser trim and the inoperative avionics master switch, in breach of CAR 133(1)(d). Those flights were not with passengers, however, but were undertaken for the purpose of moving the aircraft to Bankstown for repair.
79. At the hearing Mr Gorman did not deny that the defects had not been endorsed on the maintenance release, and said that he was not without fault, but added there was a grey area as to when defects should be recorded on the release. As regards the defective stabiliser trim, he said he could not recall whether or not he had thought it was a defect, an implausible response concerning a potentially dangerous fault. If there is indeed a “grey” area in relation to the defects that must be entered on the maintenance release (and Mr Gorman did not explain how such a grey area would arise), it could not have existed in that instance.
80. Mr Webb testified that the applicant required him to perform maintenance on the aircraft when not under the supervision of a licensed aircraft maintenance engineer (LAME). The aircraft had a chronic problem with its fuel drains, which were vulnerable to rust damage and tended to stick. New drains would become unserviceable within a matter of weeks. Moisture in the fuel tanks can condense into water and cause engine failure, so fuel samples are normally taken every day and after refuelling to ensure that the fuel is not contaminated by water.
81. Mr Webb stated that throughout his employment with Palm Beach Seaplanes, he could recall only one occasion when both wing fuel tank drains were actually serviceable and it was possible to obtain fuel samples from both tanks. If one of the drains actually did work sufficiently for a sample to be taken, there was a strong chance of its locking in place and continuing to drain of its own accord. Mr Gorman required Mr Webb to replace the drains himself and showed him how to do it.
82. Mr Webb also saw the applicant changing drains himself on several occasions, and spare drains were kept at the Palm Beach base, strongly suggesting that they would be replaced there rather than at Bankstown where a LAME could supervise.
83. On one occasion he saw Mr Gorman replace a drain without lockwiring it, although the previous drain before its removal had been lockwired. On one occasion Mr Webb was made to replace a leaky (but partly functioning) drain with a fuel drain that was unserviceable (but not leaking) before a flight, to ensure that fuel would not leak from the aircraft in flight.
84. In cross-examination Mr Lithgow put to the witness that he “would be mad to fly without doing a water test”. Mr Webb agreed, but said that he was told to do so. Mr Gorman denied that he had shown Mr Webb how to replace a fuel drain at Palm Beach and said that in all cases the drain had been lockwired by a LAME. Spare drains were kept in the aircraft and “some parts” also at the Palm Beach base.
85. Mr Webb also related that he had told Mr Gorman that he had discovered that certain flying wires, the cross-braces between the floats, were loose. Mr Gorman had told him to deal with it.
86. In telling him to deal with it, Mr Gorman had made it clear that he did not intend to arrange for an engineer to repair the problem. Mr Webb said he was essentially forced to borrow the tools from the workshop of the boat hire shop next door to the floatplane base and tighten the wires himself. In a written response dated 30 September 2002, Mr Gorman conceded that tightening the cross braces or other flying wires was not listed in CAR Schedule 8 as permissible pilot maintenance, but countered that it was not specifically excluded by Schedule 7 either. He took the position that tightening the cross braces was equivalent to Schedule 8 items 3 [servicing of landing gear wheel bearings], 4 [replacement of defective safety wiring or split pins, but not including wiring or pins in control systems] and 20 [removal or replacement of glider tow hooks]. He conceded at the hearing, however, that he did not really think that tightening the cross braces was analogous to replacing defective safety wiring or split pins. The respondent contended that the applicant’s written response indicated that he did allow or instruct Mr Webb to adjust the braces, which is not permissible pilot maintenance under Schedule 8, and therefore was unauthorised maintenance.
87. Mr Webb also described difficulties he had experienced with the Cessna’s water rudders that made it difficult, especially in strong winds, to turn the aircraft downwind to taxy back to a position where it was possible to takeoff. On one occasion he telephoned Mr Gorman and told him that because of the problem with the water rudders he was aborting the flight until better weather prevailed. The applicant had told him to wait where he was until he arrived at Rose Bay to talk to him. On arrival at Rose Bay the applicant inspected the water rudders, declared that there was nothing wrong with them and “forced” Mr Webb to taxy away from the jetty and return to Palm Beach despite his own misgivings. When he arrived at Palm Beach it took him three attempts to dock the aircraft, and then was able to do it only with additional help from staff from the boat hire company at Palm Beach. He conceded that some of his difficulties with the water rudders could have been related to his skill level, but pointed out that on the next scheduled 100 hourly inspection, he insisted that the water rudder system be thoroughly checked. The engineers found that a plastic pulley had been destroyed and that the cabling of the rudder system was gradually abrading on the pulley’s mounts.
88. Mr Gorman denied that he had pressured Mr Webb to fly or that there was anything wrong with the rudders. He said that he taxied the aeroplane out onto the bay and they did some turns to check the rudders, which worked satisfactorily. He asked Mr Webb if he was “okay to fly”, and offered to allow him to drive Mr Gorman’s car back to Palm Beach. Mr Webb had declined the offer and said he wanted to fly. He returned to Palm Beach, where there were people on the dock to help him moor the aircraft. He also denied that he had ever forced any pilot to fly.
89. Mr Webb also described on how the day of the Palm Beach accident, the v‑brace, a strengthening device fitted behind the windscreen in some floatplanes, snapped when he was landing at Rose Bay. Several welds on the brace indicated that it had broken and been repaired previously. A previous pilot from Palm Beach Seaplanes had told him that this was normal and that a pilot was expected to continue operating the aircraft under those conditions. Mr Webb said he was essentially forced to look for some duct tape to join the two halves of the v‑brace. He then loaded his passengers and took off again. He told the company office at Palm Beach about the damage, but a person named Shayne in the office told him to fix it himself. Fixing it, Mr Webb said was just expected:
If you didn’t want to fix it and continue flying, then you were essentially out of a job (T p255).
90. Mr Lithgow pointed out that with his response to the 2002 show cause letter Mr Gorman had attached a number of supportive (unsworn) letters attesting to Mr Gorman’s high standards of airmanship and rejecting Mr Webb’s allegations, including that he had required pilots to do unauthorised maintenance (T p313). One was from Martin Stiles (T p300), a casual pilot with Palm Beach Seaplanes, another was from Brett Cockle (T p302), a former casual pilot with the applicant and another was from Shayne Ashdown (T p305). Mr Ashdown had worked for the applicant as an aircraft scheduler and dockhand, as well as in telephone sales. By the time he wrote the letter he was a commercial pilot, with a floatplane endorsement. He said he was on duty at Palm Beach on the day of the accident, which correlates with Mr Webb’s account. His letter stated that he had never found the fuel drains to be unserviceable, that he had not been instructed by Mr Gorman to reduce power on takeoff or fly overweight, and that Mr Gorman did not fly in marginal weather or try to intimidate pilots in any way.
91. He did not, however, mention the v‑brace, the question of unauthorised maintenance, the omission of engine runups, the failure to complete load sheets and a number of other allegations by Mr Webb and CASA. Ms Karen Harris, the marketing manager for Palm Beach Seaplanes also wrote that she was not aware of any flights in adverse or dangerous conditions, nor had she ever heard Lee Webb voice any concerns about flying in dangerous conditions (T p306).
92. The applicant did not call any of the authors of those letters to give evidence, (though he did call Mr Krug, who also wrote one of the attached letters). None of the pilots was a full-time pilot for the applicant. Mr Webb was the only one at the time and the part-time pilots flew mainly at weekends. He did not have much contact with them.
93. After the accident, Mr Webb said, Mr Gorman had made the threatening statement about making life difficult for Mr Webb in future employment unless he told CASA what Mr Gorman wanted him to say. He also telephoned Mr Webb’s mother at the family business and at home. He felt he was being threatened and initially cooperated with Mr Gorman, mainly by omitting material matters from his written statements and his replies to interview questions. As a conclusion, he said that
I have never been so scared to fly as when I worked for PBSB. I feel that I was forced to fly in conditions that certainly I felt were dangerous. I made this clear on several occasions, but was ignored. I was expected to continue flying despite the conditions. All that Henry Gorman said to me about this issue was ‘it is good experience (T p256).
94. Mr Gorman denied that he had told Mr Webb to lie to CASA, but said he had indeed lied. He resigned from the company after the accident and as far as Mr Gorman knew he had not flown since.
95. Mr Webb confirmed that he had not flown since that accident. He had obviously invested a great deal of time, money and effort into gaining his flying qualifications and his Bachelor of Aviation degree, and I asked him why he had thrown it all aside. He replied that it was because of his experience as a pilot, and also his experience with CASA, which had not been pleasurable, and he had himself committed some errors of judgment.
96. He continued that as a pilot he had been forced to fly in weather in which he was not competent. Pilots had to operate in a variety of bad conditions, to fly VFR in IFR weather, overloaded, overtime and beyond the aeroplane’s 100 hourly check. General aviation, he said, had no regard for safety and the problem was more acute at PBSP because there was more at stake. The company had only one aeroplane and the applicant was dedicated to the business. It was for that reason that he put Mr Webb under pressure to operate outside his competency.
97. On many factual matters in this case there was a direct conflict between the evidence of Mr Gorman and that of Mr Webb that could not be resolved by recourse to corroborating evidence on either side. On those points I generally prefer the evidence of Mr Webb. He seemed an intelligent young man with an orderly mind and he answered questions clearly and directly, not shying away from admitting his own mistakes and shortcomings and without seeking to rationalise them away. Mr Gorman maintained, however, that Mr Webb had lied from beginning to end. Some witnesses before the tribunal do such things, but I see nothing to indicate that Mr Webb is one of them. He appeared to have no personal stake in the proceedings other than, he said, to ensure that no other pilot had to go through what he went through.
98. At the same time, I think the events associated with his time as a pilot for the applicant hold an emotional charge for Mr Webb that could lead to exaggeration or oversimplification. Some of the matters he alleged, such as being required to fly when overloaded, or VFR in IFR weather, were not accompanied by specific detail. Although I do not necessarily reject those claims, especially given the applicant’s previous overloading episodes, I therefore regard them as insufficiently particularised to be of much significance and I have given no weight to them.
99. Mr Gorman is a highly experienced pilot who, until the Rose Bay accident in 2005, had never had an accident as a pilot. He is dedicated to the aviation industry and has an excellent reputation as a pilot. As a chief pilot while working for another company, he resigned on an issue of safety. The company shortly afterwards suffered a tragic accident at Cowan Creek. On the other hand, he frequently answered straightforward questions with lengthy and discursive speeches, showed a disturbing tendency to try to stretch the facts to fit the law and to introduce irrelevant rationalisations for his legal violations. He gave materially different versions of important facts on different occasions, such as in relation to whether his aircraft had been airborne at the time of the Rose Bay accident and whether it had begun to yaw and skid to the left before becoming airborne. He professed an inability to recall material details of which one would expect him to have a reasonably clear recollection. He claimed to find ambiguities and grey areas in aviation directives and practices that others might think quite categorical. I think he was prepared to take liberties with the truth just as he had been prepared to take liberties with aviation safety regulations.
Application of the Law and Findings of Fact
100. The issue for the tribunal to determine is whether, on the evidence and material before it, the applicant’s chief pilot approval and the air operator’s certificate held by Airfoto should be cancelled. In its statement of facts and contentions (Exhibit R2), the respondent contended that:
48. Mr Gorman chose a take-off which subjected the aircraft to crosswind in excess of the maximum stated in the Cessna Pilot Operating Handbook (POH) and the Airfoto operations manual. Mr Gorman continued the take-off even though there were indications prior to lift-off that a loss of control was imminent.
…
53. The applicant has a poor compliance history and accident record. That history demonstrates that the applicant will place his commercial interests before the safety of passengers and pilots employed by him. That history has demonstrated that the applicant will not have defects rectified when necessary, has improperly trained pilots, which have caused accident or incidents.
101. In relation to the Rose Bay accident on 20 January 2005, I find on the preponderance of probabilities that the applicant attempted a takeoff in conditions where there was a crosswind component exceeding the maximum laid down in the POH and the applicant’s operations manual. Although the takeoff began at a point where there was minimal crosswind, the aircraft accelerated into an area where there was, and was likely to be, an excessive crosswind, thereby contributing to the accident. The takeoff was also in disregard of a warning in the operations manual about the likelihood of “dumping” in that area and in weather conditions of that kind. Those actions constituted breaches of CAR 215(9) and CAR 138(1).
102. I do not, however, think that the takeoff was careless or reckless within the meaning of s 20A of the Civil Aviation Act. Section 29(1A) makes a contravention of s 20A(1) a criminal offence. Section 5.4 of the Criminal Code defines recklessness in relation to a circumstance as requiring that the person be “aware of a substantial risk that the circumstance exists or will exist”, and “having regard to the circumstances known to him or her, it is unjustifiable to take that risk”. That corresponds with the common law definition of recklessness as the conscious disregard of a known risk. The word “careless” when juxtaposed with “reckless” also suggests a significant degree of subjective culpability.
103. The applicant made some bad decisions, possibly because he placed commercial or other considerations above safety, but he was not unmindful of the risks and probably thought he was able to avoid them. But his breaches of the regulations also put him in breach of the AOC conditions laid down in sections 28BD and 28BE, thereby making himself liable to cancellation of his AOC or refusal of a new one pursuant to s 28BA(3) and s 28.
104. Those violations of his AOC conditions also constituted breaches of his responsibilities as chief pilot within CAR s 82.0, Appendix 1, clause 2.2(a). Consequently they also made him liable to cancellation of his chief pilot approval by virtue of s 61 of Appendix 1.
105. Cancellation of an AOC or of chief pilot approval is not automatic, however. CASA (and consequently this tribunal) has a discretion in the matter. In the present case I would not necessarily conclude that the Rose Bay accident in itself would disqualify the applicant from any possible exercise of the discretion in his favour. He has adopted specific procedures to prevent any recurrence of this accident or any similar mishap. CASA contends, not unreasonably, that the applicant took an unacceptable risk on that day and cannot go on saying that nothing like that will ever happen in the future each time he has a mishap. Nevertheless, I am satisfied that he is conscious of the seriousness of his error and its potentially tragic outcome and will not put himself in a position where that could happen again.
106. The respondent, however, seeks to reinforce its case by relying on the other incidents and breaches described above. The applicant rejects that approach, arguing that all the earlier matters were taken into consideration when CASA reissued an AOC to the applicant in August 2004 and that consequently that they are of little relevance.
107. As Deputy President Forgie has said, however, prior incidents involving a person may, when taken with more recent incidents, reveal a pattern of action, or inaction, that is relevant in determining whether an AOC should be cancelled or a chief pilot approval cancelled (Re Ellery and Civil Aviation Safety Authority [1999] AATA 744 at paragraph 253; see also Re Coral Sea Airlines Pty Ltd and Civil Aviation Safety Authority [1999] AATA 329 at paragraph 189, Deputy President Gerber).
108. The earlier transgressions fall into several groups. The first relates to the Palm Beach accident on 23 December 2001. I find in relation to that accident that the pilot, acting on behalf of the applicant, failed to administer the required pre-flight briefing to passengers, failed to prepare a load sheet and failed to make use of the full takeoff run prescribed in the authorised landing area conditions. His so doing placed the applicant in breach of CAR 215(9). The pilot also failed to carry out the pre-takeoff engine control checks (including magneto checks) and failed to make appropriate use of power and flaps on takeoff. Those failings constituted breaches of CAR 138(1) and CAR 215(9).
109. The applicant also failed to carry out the required six-monthly pilot check before allowing Lee Webb to act as pilot in command on passenger flights. That also was a breach of CAR 215(9).
110. In relation to the low flying incident over the Hawkesbury River on 17 March 2001, I find that the applicant was in breach of CAR 157 and CAR 166(1)(g).
111. As regards the aborted takeoff at Rose Bay on 26 January 2001, I find that the applicant failed to comply with the prescribed pre-flight procedures, thereby contravening CAR 138(1) and s 28BE of the Act. As chief pilot he also failed in his responsibilities under CAO s 82.0, Appendix 1, clause 2.2(f) concerning “monitoring operational standards”.
112. The applicant’s numerous failures to report aircraft defects on the maintenance release constituted breaches of CAR 50. The undertaking of unauthorised repairs, by him or at his direction, outside the classes of permitted pilot repairs in Schedule 8, violated CAR 42ZC(1) and (4). The two instances of flying an aircraft with significant defects contravened CAR 133(1)(d). Those maintenance breaches violated his AOC conditions by virtue of s 28BD or s 28BE or both.
113. Section 9(1) of the Act makes it clear that CASA’s primary function is to conduct the safety regulation of civil air operations in Australian Territory, and the merits review process puts the tribunal in the same position in relation to deciding this application.
114. The applicant submits that the reissue of the applicant’s AOC in August 2004 effectively granted the applicant absolution in relation to earlier transgressions and that nothing before the Rose Bay accident of January 2005 should carry any significant weight. The respondent, on the other hand, interprets the situation as being one in which CASA decided to give the applicant one more chance, only to see him involved in a serious and potentially fatal accident only a matter of weeks later. The Rose Bay accident had to viewed against the background of a long history of safety-related contraventions. Mr Nolan in his evidence had expressed the view that Mr Gorman could continue to play a part in the floatplane industry, perhaps as chief pilot under some other AOC holder, but he should not be in the position of having to make the tough decisions which experience showed he could not be relied on to resolve in a way favourable to air safety. I think that is particularly true where the stresses of a single aircraft operation are involved.
115. I agree with the respondent’s submissions that I do not think that the discretion should be exercised in favour of issuing a new AOC to the applicant company or reversing the cancellation of its previous AOC.
116. The breaches of Mr Gorman’s obligations as chief pilot noted above also make him liable to cancellation of his chief pilot approval and I do not think it appropriate to exercise the discretion in his favour. In any event it necessarily follows from the AOC cancellation that Mr Gorman cannot be approved or re-approved as chief pilot of the company Airfoto, as the chief pilot classification is specific to a particular AOC holder. I do not mean to suggest, however, that Mr Gorman could not or should not be approved as a chief pilot for some other floatplane organisation. As Mr Nolan pointed out, he has served creditably in that role with other operators and might do so again, as he would not be in the position of having to make the most difficult operational decisions himself. Accordingly, in my view, if Mr Gorman were to apply for chief pilot approval with another AOC holder, the application should be considered on its own merits in the circumstances as they exist at the time but with due regard to his prior record.
117. The decisions under review should be affirmed.
I certify that the 117 preceding paragraphs are a true copy of the reasons for the decision herein of Professor GD Walker, Deputy President
Signed: .....................................................................................
AssociateDate/s of Hearing 26, 27, 28 and 29 September 2005
Date of Decision 19 October 2005
Counsel for the Applicant Mr P Lithgow
Solicitor for the Applicant Mr J Maitland, Grundy Maitland & Co Lawyers
Solicitor for the Respondent Mr A Anastasi, Legal Officer, CASA
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