Hanley and Civil Aviation Safety Authority
[2012] AATA 820
•21 November 2012
[2012] AATA 820
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2012/0781
Re
FERGUS HANLEY
APPLICANT
And
CIVIL AVIATION SAFETY AUTHORITY
RESPONDENT
DECISION
Tribunal Ms G Ettinger, Senior Member
Date 21 November 2012 Place Sydney The Tribunal affirms the decision under review.
.........[sgd]............................................
Ms G Ettinger, Senior Member
CATCHWORDS
CIVIL AVIATION – pilots – cancellation of licences to pilot helicopters and instructor ratings – revocation of Instrument of Approval as Chief Flying Instructor – unplanned demonstration of autorotation – whether helicopter was operated when unairworthy – conflict of evidence regarding how the helicopter was moved back to the hangar between the pilot and the owner/passenger/student – fit and proper person – decision under review affirmed
LEGISLATION
Civil Aviation Act 1988 ss 9A, 20AA
Civil Aviation Regulations 1988 regs 5.58, 47, 215, 269
Transport Safety Investigation Act 2003 ss 18, 19
CASES
Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321
Briginshaw v Briginshaw (1938) 60 CLR 336
Re Griffiths and Civil Aviation Authority (1994) 34 ALD 554
Re Taylor and Department of Transport (1978) 1 ALD 312
Shi v Migration Agents Registration Authority (2008) 235 CLR 286REASONS FOR DECISION
Ms G Ettinger, Senior Member
21 November 2012
SUMMARY
Mr Fergus Hanley is a helicopter pilot with up to 6,000 hours flying time. His counsel, Ms D Price, described him as passionate about flying, and emphasised that flying and teaching students to fly was his only means of income.
On 29 October 2011, Mr Hanley was in command of the Bell 206 helicopter registration mark VH-AYP, (the helicopter), with a student pilot, Michael Hope, who was also the owner of the aircraft, when he conducted an unplanned and spontaneous demonstration of a simulated autorotation. The helicopter made a heavy landing during which it was extensively damaged. There was conflicting evidence before the Tribunal regarding the events following the heavy landing, and as to how the helicopter was moved from where it landed at Maitland Airport, to the hangar there.
On 21 February 2012, the Civil Aviation Safety Authority (CASA) cancelled Mr Hanley’s Private Pilot (Helicopter) Licence; Commercial Pilot (Helicopter) Licence; Airline Transport Pilot (Helicopter) Licence; and Flight Instructor (Helicopter) Ratings Grades 1 and 2 pursuant to regulation 269 of the Civil Aviation Regulations 1988 (CAR). It also revoked his Instrument of Approval as Chief Flying Instructor of Apple Helicopters Pty Ltd (Apple Helicopters) pursuant to regulation 5.58(5) of the CAR. I note that the latter Instrument of Approval as Chief Flying Instructor of Apple Helicopters is no longer relevant because Mr Hanley’s employment with Apple Helicopters was terminated on 24 February 2012. The termination had the effect of causing the approval to cease to have effect.
Mr Hanley has applied to this Tribunal for review of the decision of CASA. The difficulties encountered in deciding the matter have been compounded by the fact that Mr Hanley and Mr Hope were the only persons who were involved, and who witnessed the heavy landing, and have knowledge regarding how the helicopter was returned to the hangar. Mr Hope, who initially corroborated Mr Hanley’s evidence regarding what occurred after the heavy landing, and the manner in which the helicopter was moved following the accident, subsequently changed his evidence about it.
I was satisfied from the evidence that the decision under review should be affirmed. My reasons follow.
ISSUES IN DISPUTE
The Tribunal must decide:
·whether, the Applicant has failed in his duty as the holder of pilot licences and instructor ratings in respect of a matter or matters affecting the safe operation of an aircraft within the meaning of regulation 269(1)(c) of the CAR;
·whether the Applicant is a fit and proper person to be the holder of his various pilot licences and instructor ratings (regulation 269(1)(d)); and
·whether the correct or preferable decision is to affirm, vary or set aside the decision of CASA of 21 February 2012.
LEGISLATIVE ENVIRONMENT
The relevant legislation in this matter is the Civil Aviation Act 1988 (the Act), in particular section 20AA(4), and the Civil Aviation Regulations 1988 (CAR), in particular regulations 269(1)(c) and (d) and 47(1).
Regulations 269(1)(c) and (d) of the CAR authorise CASA, and accordingly the Tribunal to cancel, vary or suspend a pilot licence if the holder of that licence has failed in his or her duty with respect to any matter affecting the safe operation of an aircraft, or is 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.
Section 20AA of the Act makes it an offence to commence a flight if a helicopter has sustained damage that may endanger the safety of the aircraft or any person or property.
Pursuant to regulation 47(1) of the CAR it is an offence if, following major damage to a helicopter, the pilot has failed to immediately terminate the flight, and endorse the maintenance release to the effect that the helicopter is unairworthy.
Section 18(1) and 19 of the Transport Safety Investigation Act 2003 are breached if a person is found to have exceeded the period prescribed for reporting an accident to the Australian Transport Safety Bureau (ATSB). Section 18(1) prescribes the time for making the report as soon as reasonably practicable, and pursuant to section 19, a written report must be made within 72 hours.
Ms D Price, of counsel, represented Mr Hanley and Mr B Shields, of counsel, represented CASA.
I am mindful that Ms Price made submissions on behalf of Mr Hanley about the standard of proof to be applied, and the application of what is spoken about as the Briginshaw standard: Briginshaw v Briginshaw (1938) 60 CLR 336. I have noted those submissions, mindful that what some consider a Briginshaw standard, said to be higher than the usual balance of probabilities, is applied where a person’s livelihood is in question in determining a matter before a court or tribunal. I am mindful that in this jurisdiction, the Tribunal is bound by the Administrative Appeals Tribunal Act 1975, and must be satisfied on the evidence that the correct or preferable decision is to affirm, vary or set aside the decision of the Respondent: section 43 and Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60. That is the standard to be applied. I am also mindful that the Tribunal, standing in the shoes of the decisionmaker, CASA, is obliged in exercising its powers and performing its functions to regard the safety of air navigation as the most important consideration: section 9A of the Act.
BACKGROUND
Mr Hanley, who is 49 years of age and was previously a carpenter, stated that he has been a commercial helicopter pilot since 1995. He has held a number of helicopter licences which I have mentioned in the paragraphs above. They were cancelled by CASA on 21 February 2012 following an accident in a helicopter as described above, which occurred on 29 October 2011. Mr Hanley provided a statement, dated 7 March 2012, for the stay hearing held on 8 March 2012. Senior Member Fice of this Tribunal granted a stay of the CASA decision, and the same statement was admitted into evidence at the substantive hearing as Exhibit A1. Mr Hanley did not prepare a further statement, but he elaborated on the matters contained in the statement at the hearing before me. Although Mr Shields, of counsel, who represented CASA, sought to criticise that, I am satisfied that that is acceptable and not unusual.
It was not in dispute that Mr Hanley was employed by Apple Helicopters, between December 2010 and February 2012. He was appointed as the Chief Flying Instructor on 25 August 2011.
The evidence before me was that Mr Hanley assisted Mr Michael Hope, Managing Director and Secretary of HOPE Estate Events Pty Ltd, a vigneron and a pharmacist, to choose the Bell 206 (VH-AYP) helicopter, which Mr Hope’s company purchased in Townsville in October 2011. Mr Hanley and Mr Hope, who had travelled to Townsville on a commercial flight to take delivery of the helicopter on 12 October 2011, flew the helicopter back to Maitland. Mr Hope stated that between 12 October and 29 October 2011, he recorded 16 flights totalling 24.3 hours flight time in the Bell helicopter in his log book.
Mr Hope stated that on 29 October 2011, the Applicant flew on three training flights with him. The last flight was at approximately 4:30 pm and lasted 1.3 hours. Mr Hope said that during the final training flight of the day, Mr Hanley made a spontaneous decision (without having first given a lesson on the ground to Mr Hope), to give a demonstration of an emergency autorotation landing. Mr Hope said that it was on the return journey from Cessnock, and that they were approaching Maitland Airport at about 1200 – 1500 feet when Mr Hanley decided to carry out the autorotation. He stated that: The helicopter hit the ground with great force and came to a shuddering halt near the edge of the runway.
It was agreed, and I accept that the manoeuvre resulted in what was described as a heavy landing with ensuing serious damage to the helicopter. Mr Hanley described the autorotation as follows in his statement (Exhibit A1):
[7] … I conducted a demonstration of an emergency autorotation landing. The throttle had rolled on to initiate a power recovery. When passing through 300 to 250 feet approximately above ground level (AGL), a gentle flare was commenced. At between 10 to 20 feet AGL and at the completion of the flare, the cyclic was pushed forward to level the helicopter. As the helicopter began to sink, the collective lever was raised to cushion the landing. The low RPM horn and light were activated. I realised that the throttle was not fully open. I instinctively rolled on the throttle to the fully open position. The helicopter yawed through 30 degrees approximately to the right as ground contact was made, causing a heavy landing to occur on the landing gear on the left side. The helicopter “bunny hopped” sidewards and forwards. I kept the cyclic pushed forwards and tried to maintain heading with pedals and was simultaneously raising collective to alleviate the impact damage. … The Helicopter sustained damage following the heavy landing during the final stages of the autorotation.
[8] … I didn’t double check to confirm that I had rolled the throttle to the fully open position when passing through my pre-landing checks. I talked about these actions to Hope, but did not complete them. I also mis-judged the glide on this aircraft because my mind was more focussed on the lesser tail rotor authority as being a potential problem when I would raise the collective to cushion the landing.
The damage sustained by the helicopter included damage which was visible to the naked eye, and other damage which, according to Mr Christopher Rapp, a CASA Airworthiness Inspector, could only be discerned once the helicopter had been further inspected and dismantled for repair (Exhibit R12, paragraphs 14 to 16).
Mr Hanley’s evidence regarding the damage he at first discerned was that the tail boom was slightly twisted down and cracked on one side. The rear left skid mount was damaged where it connected to the box section. I noticed fragments of metal up around the transmission bay in around the strike plate and the isolation mount. (Exhibit A1, paragraph 18).
That seems to have been an understatement when Mr Hanley’s oral evidence, and director of Heliwork Qld Pty Ltd (Heliwork), Mr McClymont’s statement, are considered. Mr Hanley agreed in cross-examination that following the heavy landing, he had observed damage to the undercarriage of the aircraft and through to the skids, damage at the point where the skids joined the fuselage, a kink in the tail boom, and a tear in the skin of the aircraft, all of which he agreed constituted major damage.
Mr McClymont, who repaired the helicopter, made a statement dated 13 December 2011 which was Exhibit A7 before the Tribunal. He stated that when the helicopter arrived in his workshop by road on 2 November 2011, it was immediately obvious to me that the aircraft had suffered major damage, with the tail boom on the helicopter creased to the extent that the outer skin had been torn. He stated that the following week he discussed with the insurance assessor whether the aircraft was repairable, reaching the conclusion that it was.
It is clear from the statement of Mr McClymont, who informed the Tribunal that he has been a licensed aircraft maintenance engineer for approximately 25 years, that the damage to the helicopter was major damage.
WHETHER MR HANLEY HAS FAILED IN HIS DUTY WITH RESPECT TO MATTERS AFFECTING THE SAFE NAVIGATION OR OPERATION OF AN AIRCRAFT
In coming to a decision in this matter, I am required to consider the application of regulation 269(1)(c) of the CAR. That entails consideration of whether Mr Hanley, the holder of the authorisation, has failed in his duty with respect to any matter affecting the safe navigation or operation of an aircraft. Regulation 269(1)(c) of the CAR authorises CASA, and accordingly the Tribunal to cancel, vary or suspend a pilot licence if the holder of that licence has failed in his or her duty with respect to any matter affecting the safe operation of an aircraft. The matter arises, of course, in the context of the helicopter accident of 29 October 2011.
In order to decide whether Mr Hanley failed in his duties, I considered the matters under the headings listed below, in particular because issues of credit were very pertinent to the decision making, and arise under each:
·what occurred during the helicopter flight on 29 October 2011 when Mr Hanley attempted to demonstrate an autorotation to his student, Mr Hope;
·what occurred following the accident, and how the helicopter was returned to the hangar;
·who wanted the accident kept quiet;
·reporting of the accident to the relevant authorities.
What occurred during the attempt by Mr Hanley to demonstrate an autorotation
I have already stated in the paragraphs above, that on 29 October 2011, towards the end of a lesson he was providing to Mr Hope, Mr Hanley offered to demonstrate an emergency autorotation landing. I am satisfied that it was a spontaneous decision, and that, notwithstanding Mr Hanley’s evidence that he had previously mentioned autorotations to his student, Mr Hope had not received any prior briefing or instruction in the classroom on this procedure, as he should have.
Mr Hope said that it was on the return journey from Cessnock, and that they were approaching Maitland Airport at about 1200 – 1500 feet when Mr Hanley decided to carry out the autorotation. He stated that: The helicopter hit the ground with great force and came to a shuddering halt near the edge of the runway.
I also noted Mr Hanley’s description of the landing in reply to questioning from Mr Shields:
… I never said that I didn’t complete the pre-landing checks. I just said that I thought I mustn’t – I didn’t double-check to confirm I had rolled the throttle to fully open. My belief was that I had but I also had a doubt in my mind that I mustn’t have had because – and the reason I state that was quite clearly because if the RPM – if the rotor RPM light and the horn are activated it simply means that the engine has obviously not been restored to its fully open position. So my assumption, therefore, was based on that the throttle mustn’t have been fully opened. I didn’t say that I didn’t fully open it. My assumption was that I did fully open it but obviously if the rotor RPM light and the horn activated, it meant that then the throttle mustn’t have been fully open. I didn’t mean that I didn’t do the action but I thought perhaps I didn’t do the action.
I noted that Mr Hanley’s replies in cross-examination were at odds with paragraphs 7 and 8 of his written statement, Exhibit A1, in which he admitted not having carried out the pre-landing checks adequately.
There was no question that the autorotation resulted in what was described as a heavy landing with ensuing serious damage to the helicopter. There was damage to the undercarriage of the aircraft and through to the skids, damage at the point where the skids joined the fuselage, a kink in the tail boom, and a tear in the skin of the aircraft, all of which constituted major damage. I was concerned that Mr Hanley attempted to minimise that damage in an email to Mr L Yates of CASA dated 3 November 2011 (Exhibit R3), where he wrote: Initially it didn’t seem like there was any major damage to the aircraft. I noted from the evidence that much of the major damage was immediately visible on external inspection.
I am mindful also that tendered, as part of Exhibit A7, was a letter by Mr McClymont dated 17 July 2012, noting that he had carried out repairs to the helicopter, and stating:
After the initial test flight it was discovered that the engine Power Turbine Governor (P.T.G.) had a defect of excessive RPM droop.
…
In my opinion the defected P.T.G. would have impacted on engine RPM control while carrying out auto rotation requirements during flight training and may have contributed to the aircraft hard landing incident.
Mr McClymont indicated that the unit had been replaced.
Notwithstanding Mr Hanley’s quasi-denial of the fact, I am satisfied from the evidence Mr Hanley has given orally, and paragraph 7 of his statement (Exhibit A1), that the accident occurred due to his error, that is in not correctly completing all of the pre-landing checks. I was however concerned that he had given varying versions of that, including the extract cited above.
What occurred after the heavy landing, and how the helicopter was returned to the hangar
One of the crucial decisions in this matter is to assess from the evidence and determine what occurred after the heavy landing on 29 October 2011, and how the helicopter was returned to the hangar. It is a difficult task because only Mr Hanley and his student, Mr Hope, were present.
Mr Hanley gave detailed evidence of what occurred after the heavy landing. He stated that after the heavy landing, both he and Mr Hope sat in the helicopter for approximately two minutes. He said that he shut down the engine, after which both he and Mr Hope got out, and inspected the damage. He said that he made it clear to Mr Hope that the damage was serious. He recalled saying: That’s it, she’s stuffed. We can’t do anymore flying today. Mr Hanley said that he and Mr Hope discussed how the helicopter would be moved.
Mr Hanley said that Mr Hope then became very agitated, mad as a meataxe, and used abusive language because Mr Hanley had interrupted his plans, which included gaining his licence as soon as possible. Mr Hanley said he knew Mr Hope wanted to have the licence in place because he was intending to fly the helicopter to an island with his family for their Christmas holidays.
Mr Hanley said that because Mr Hope was becoming increasingly agitated, he suggested Mr Hope go home, and that he, (Hanley), would deal with getting the helicopter into the hangar. Mr Hanley said that after Mr Hope left, he walked the three minutes back to the hangar. He said that he drove the quad bike, a four wheel drive vehicle with a tow bar used for moving larger helicopters, which was in the hangar, to the helicopter. He gave detailed evidence as to how he secured the helicopter to the towing equipment. He said that once he had left the hangar with the quad bike, dual handling wheels, tow bar, straps and rope it took him another three minutes or so to return to the helicopter, and then it took no more than two minutes to attach the rear wheels and set them up, three minutes by the time he had hooked up the front of the helicopter to the apparatus, so approximately 15 minutes in all. Mr Hanley said that on the way back to the hangar, he had to stop and tighten the straps as the helicopter was moving around, and he was worried it would come off the plate.
Mr Hanley said that the scratch marks visible in the photograph (Exhibit A2) were caused by the lower wire strike blade making contact with the plate when it became loose and moved. Mr Hanley agreed, when questioned, that the method of towing the helicopter back to the hangar was not a manufacturer-approved method, and that the equipment he described was not approved for the Bell helicopter.
Mr Hanley also described how the scratches on the plate as indicated in the photograph, had occurred. He said in his evidence in chief in reference to Exhibit A2 when asked by his counsel where he aligned the lower wire strike blade:
… you will notice there is like what looks like a label or a sticker, and it’s got what looked like scratch marks on there. I engaged the lower wire strike plate with that because it wasn’t intentional that that’s where it would end up, but that’s where it ended up because, as the arm came up, because the wire strike comes down on an angle, it just naturally sat against that point ... of the apparatus.
Mr Hanley did not agree with Mr Shields, when questioned, and it was suggested to him that the scratch marks were black, whereas the helicopter was blue. I note that Exhibit R5 is a colour photograph of the towing apparatus which shows scratch marks, but that there is no indication they are blue.
When asked about the scratch marks, Mr Rapp, who is a CASA Airworthiness Inspector, stated that if the helicopter had been towed in the manner Mr Hanley alleged, he would not have expected the scratches to be located in the centre of the plate (Exhibit R5), and if they had occurred at all, they would more likely to have been to one side.
The Applicant tendered various photographs of the towing equipment (Exhibit A2), wheels (Exhibit A3), a photograph of the helicopter (Exhibit A4), and a photograph of the helicopter in the workshop showing the damage (Exhibit A6).
Mr Hanley gave the same version of events regarding the towing of the helicopter to CASA personnel as to the Tribunal when he met with them on 14 and 23 November 2011.
Mr Hanley agreed when cross-examined that he did not give a full description to Mr Shaun Bennetts, a CASA Investigator, regarding how he towed the helicopter back to the hangar. He said he did not do so because Mr Bennetts had not asked him how he did it.
At the Tribunal he denied that he had fabricated the evidence regarding how the helicopter had been returned to the hangar.
Mr Hanley’s evidence regarding what occurred after the heavy landing and how the helicopter was moved, was initially corroborated by Mr Hope. There is no written statement to verify that. However Mr Hope agreed that he initially said to Mr Hanley that he would corroborate his, that is, Hanley’s, version of events, and indeed did so.
Mr Hope gave evidence that Mr Bennetts telephoned him approximately a week after the heavy landing regarding what had happened. He said that he was busy with arranging a Dolly Parton concert at his vineyard, and did not initially meet with Mr Bennetts.
He recounted a later conversation with Mr Bennetts as follows:
… We did an autorotation in…. and then we went bang, bang, bang, bang on the runway, on the bitumen and we ended up about 90 degrees facing the hangar. Now, he then asked what happened next and I misled him [Bennetts]. I basically – trying to protect Fergus and also not wanting – again with my mindset at that time. I had Dolly Parton concert coming up in a couple of weeks, I got a – at home I got a … 15 year old son who requires full-time care. Between work and my time at home, I don’t have a lot of time. So I misled him and I basically – see, I didn’t want to know about it and I told Fergus I didn’t want to know about it. So I basically said – not basically, sorry. I told him once we had landed, we shut down and saw the damage and I got in my car and drove home. So in that conversation I had with Mr Bennetts, I did not tell him what happened after the heavy landing and he said, “Okay, that’s it.” So I did not make a formal statement to him. I refused to make one – well, not refused – yes, refused. I didn’t make a statement to him, I didn’t meet with him in person. I had that conversation on the phone and I was basically trying to nip it in but that I didn’t want to have any involvement with it.
…
Yes. I – look, I regret doing it. It was regrettable, now. At the time – look, I had a good friendship with Fergus. He was the mentor, he was my instructor, very, very affable, nice Irish guy, close to our family. … It was – part of it was not wanting to drop him in it. It was basically covering up for his actions subsequent. And also, because of the stress I was under with the concert coming up in a couple of weeks, I had just had a huge blue with … Council getting the concert approved … The last thing I wanted to do was – I didn’t have the head space to devote hours to sitting down with a CASA investigator so I basically wanted to try and wash my hands of it. I regret it but I did.
Mr Hope said that he then had a conversation with Mr Lindsay Snell, Chief Pilot and Managing Director of Austcopters Pty Ltd, on 4 December 2011 backstage at the Elton John concert at his vineyard. He said that Mr Snell was the pilot who flew Elton John in for both shows. Mr Hope recounted the following conversation he had about his helicopter with Mr Snell:
… I was just standing there having a bit of a yack and I said, “Mate, not that I can fly it for a while. It’s in getting fixed, had a heavy landing.” And then he said, “Was that the one at Maitland?” I said, “Jeez, how did you know about that?” He said, “It’s a small industry,” blah, blah, blah. I said, “Yes, mate, it’s a bit of a bugger, it” – I then said, “Mate, I don’t know what to do now. This is what happened.” I sort of told him the incident. I said, “Mate, I have got” – it got taxied – I went through the whole incident. Well, I don’t need to tell you that conversation for the third time I gather but the whole – this is what happened, I had a heavy landing, Fergus taxied it back to the hangar. But I said, “Mate, I didn’t tell CASA that. I said I didn’t want to know about it, I fobbed them off, I told the investigator up until the heavy landing,” I said, and after that I just told him we shut it down and went home. I said, “It’s not right, I don’t feel right about that.” I said, “Mate, I don’t know, I don’t know – I don’t know if I should go back to CASA. I don’t know what to do and I have, you know – I feel bad that I did that. It’s not right.” And he said, “Well, look, did you make a statement to CASA, a written statement?” I said no I didn’t. He said, “Well, why don’t you make a written statement to CASA?” I said, “Yes, I think that’s what I need to do.” I said I will think about that and I think he – and then his comment was – he said, “Look, you will – philosophy – my philosophy in life, you will never go wrong telling the truth.” And I said, “Yes, I think you’re right.” So basically, by then it had been worrying me that I – – –
Mr Hope said that on 5 December 2011, Mr Bennetts telephoned him again, and then on 8 December 2011, arrived unannounced at his cellar door. He said that Mr Bennetts took a statement from him in which he (Hope), withdrew his corroboration of Mr Hanley’s version of events regarding 29 October 2011. The statement is Exhibit R7, and at T20/142.
Both at the hearing and in his statement, Mr Hope stated that after the heavy landing he remained seated in the helicopter with the motor on, while Mr Hanley got out and inspected the damage. Mr Hope stated that he recalled asking Mr Hanley whether he should get out and walk back to the hangar, and that he was reassured by Mr Hanley that he should remain seated. Mr Hope said that shortly afterwards, Mr Hanley lifted off and taxied the 100 – 200 metres back to the hangar where the helicopter was put down on the concrete pad outside the hangar. He stated that he and Mr Hanley attached the wheels to the skids, and wheeled the helicopter into the hangar.
At the hearing, I asked Mr Hope:
Just on that point, you say you stayed in the helicopter and the motor was running. Was there a reason for staying in and not wanting to go out and have a look what was wrong?‑‑‑
MR HOPE: Because, yes, because the engine was still running and you need someone to stay on the controls because the risk is if you hop out and the controls move the helicopter can take off, move or do something, so you always – when the engine is running someone always sits on the controls.
SM ETTINGER: So did Mr Hanley ask you to stay in there and watch the controls?
MR HOPE: Yes. He handed control back to me to mind the controls and then he hopped out and had a look.
…
SM ETTINGER: I’m asking when you decided on the basis of having had a heavy landing where you landed with great force in a violent manner and you decided at that time that it was still safe to stay in that helicopter as it taxied back to the hangar?
Mr HOPE: I asked my instructor, “would you like me to get out,” and he said, “no mate, you will be right.” So I relied on Mr Hanley telling me it would be okay to stay in the helicopter.
Mr Hope said that when he told Mr Hanley of his disclosure to Mr Bennetts, they had the following conversation:
He said, “Mate, why didn’t you tell him that we towed it back?” And my line – I said to him, “I’m not going to lie for you.” I wasn’t going to extend to lying to the investigator to say we actually towed it back because we did not.
Before coming to a conclusion about the evidence regarding how the helicopter was moved back to the hangar after the heavy landing, I noted the oral evidence and statements given by Mr L Snell (Exhibit R9), and CASA officers, D Allwood, Flying Operations Inspector (FOI), (Exhibit R10), S Bennetts (Exhibit R11 and T21), and C Rapp (Exhibits R12 and R13).
Mr Snell stated that he knew the Applicant through his role as an Authorised Testing Officer (ATO) for CASA, and the fact he had tested Mr Hanley for his Grade One instructor rating renewal in 2008. Mr Snell corroborated Mr Hope’s evidence that they had a conversation about flying, and about Mr Hope’s helicopter which took place while the Elton John concert was underway at Mr Hope’s vineyard on 4 December 2011. He also stated that when Mr Hope recounted to him that Mr Hanley had flown the helicopter from where it had made the heavy landing back to the hangar, he had told Mr Hope that flying a helicopter that had sustained serious damage was a dangerous thing to do and contrary to the aviation regulations. Mr Snell said that once Mr Hope had understood from him what risk he had undergone flying in a seriously damaged helicopter, Mr Hope said words to the effect: After hearing what you have said, I’m not happy how he [Applicant] handled the situation and it looks like he’s going to cost me a lot of money. Mr Snell also stated that Mr Hope disclosed to him that a CASA investigator had contacted him a few weeks earlier, and that he had not revealed that the helicopter had been flown back to the hangar after the accident because Mr Hanley had told him not to tell anyone about the accident. Mr Snell stated that Mr Hope then said: Based on what you’ve told me, I think I need to set the record straight and tell CASA exactly what happened.
Mr Snell stated that he telephoned FOI Allwood the following day, 5 December 2011, to advise him about the discussion he had had with Mr Hope, adding that Mr Snell told him he already knew about the accident. Mr Snell stated: I felt compelled to make this disclosure to FOI Allwood due to my obligations as an ATO and my strongly held view that the applicant represented a risk to others in the way he conducts himself. I note from the statement and his oral evidence that Mr Snell formed his opinion, in part because of the fact that Mr Hanley had not initially passed his Grade One instructor rating renewal in 2008.
FOI Allwood, who also gave oral evidence, stated that he knew Mr Hanley from having previously tested him. He said that he had not had any discussions or dealings with Mr Hanley in regard to the 29 October 2011 accident. He stated that he became aware of the accident by way of an anonymous telephone tip-off on 2 November 2011, which included information that Mr Hanley had flown back to the hangar following the incident. FOI Allwood stated that on 3 November 2011, he therefore visited Heliwork where the helicopter was being repaired. FOI Allwood also stated that on 5 December 2011 he received a telephone call from Mr Snell with regard to the accident in which Mr Snell recounted his conversation with Mr Hope on 4 December 2011. FOI Allwood repeated what Mr Snell had relayed from Mr Hope, which was that Mr Hanley had flown the damaged helicopter back to the hangar, and also that Mr Hope revealed he had not told the truth to Mr Bennetts because he had been asked by Mr Hanley to keep the matter quiet. FOI Allwood stated that he then contacted Mr Bennetts about the conversation he had had with Mr Snell.
Exhibit R11 comprised a letter from CASA to the Australian Federation of Air Pilots, which was representing Mr Hanley, and handwritten notes of Mr Bennetts. The T-documents included his investigation report dated 12 December 2011 (T21/150). In his investigation report, Mr Bennetts commented on Mr Hanley having maintained his version of events occurring after the heavy landing, and having spoken with Mr Hope after the industry intelligence was received. He noted Mr Hope then made a written statement retracting what he had first said, which had been a corroboration of Mr Hanley’s version of events. In his statement Mr Hope then asserted that he was on board the helicopter when Mr Hanley flew it back to the hangar following the accident. Mr Bennetts also commented on Mr Hanley not having reported the accident in a timely way as required.
Mr Bennetts said that he had made several attempts to contact Mr Hope and left messages for him between 5 and 9 December 2011. He confirmed that he eventually just turned up at Mr Hope’s premises and met with him on 8 December 2011. As part of his investigation he also interviewed Mr Hanley and visited Maitland Airport where he saw the skid marks from the heavy landing.
I noted that Mr Bennetts’ Investigation Report dated 12 December 2011 (T21/150) recounted Mr Hanley’s version of events which was that following the incident, Mr Hanley shut down the engine, advised Mr Hope that he would report the heavy landing, and dispatched Mr Hope home. He also noted Mr Hanley’s version of events which was that following the departure of Mr Hope, Mr Hanley drove the quad bike and tow/jack from the hangar, attached the helicopter and moved it into the hangar in that manner.
Mr Bennetts said that when he questioned Mr Hope on the telephone about the incident on 10 November 2011, Mr Hope corroborated Mr Hanley’s version of what occurred after the heavy landing on 29 October 2011.
Mr Bennetts also noted that intelligence was received on 5 December 2011 which suggested that the information provided by Messrs Hanley and Hope regarding how the helicopter was moved after the landing on 29 October 2011 was false, and that the helicopter had been flown with the major damage it had sustained during the heavy landing. Mr Bennetts stated that on or about 5 December 2011 Mr Hope advised he was willing to meet with Mr Bennetts and make a formal statement about the incident.
In the statement Mr Hope made, dated 8 December 2011, (Exhibit R7 and T20/142), he stated that Mr Hanley had left the helicopter’s engine running after the landing, and that Mr Hanley got out and briefly inspected the damage. He said that Mr Hanley returned to the helicopter, told him there would be no more flying of the helicopter for a while, and also indicated he was going to taxi the helicopter the 100 – 200 metres back to the hangar. Mr Hope recalled that he asked Mr Hanley whether he should get out, to which Mr Hanley replied: No, you’ll be right. He recalled that the helicopter then lifted off, and that Mr Hanley had taxied back to the hangar where he landed on the concrete pad outside the hangar. Mr Hope said that they both then got out and inspected the damage, which he saw had sustained damage to the tail boom and the skids, which were uneven and twisted.
Mr Rapp provided two statements. In his first statement Mr Rapp provided extensive detail regarding the damage the helicopter sustained during the heavy landing. He was adamant that even on visual and first inspection of the damage, the aircraft should not have been flown, even if operated at a low altitude and low airspeed, for a short distance. He stated that any such flying would severely compromise the airworthiness of the aircraft and could render it unsafe for further operation, adding that the potential for unseen or unknown damage also represented an unacceptable risk to aircraft safety and is a factor commonly known by experienced pilots. Mr Rapp confirmed that view in his 10 July 2012 statement after having been provided with photographs and further information regarding the damage incurred in the heavy landing.
Mr Rapp commented both in his statement and oral evidence regarding the method Mr Hanley described he had used to tow the helicopter back to the hangar. He stated that whilst not impossible, moving the helicopter in that way would have been difficult, particularly in regard to directional control, and rocking backwards on the uneven ground surface. He said that whilst it would not generally be carried out by one person, he agreed it was possible one person could move the helicopter in the way Mr Hanley described.
Commenting upon the scratches described by Mr Hanley as having been caused by the cable cutter on the towing apparatus, Mr Rapp opined that he would have expected the scratches to have been in a different location, more to the side rather than down the middle as shown in the photograph at Exhibit R5.
Mr Rapp told me that he was troubled by the description Mr Hanley gave of moving the helicopter, and had doubts about whether it had occurred as described.
The Tribunal’s consideration
Having heard the evidence of all the witnesses named above, in particular Mr Hanley and Mr Hope, who were the only persons present at the scene of the accident on 29 October 2011, I have to draw conclusions regarding how the helicopter was moved from where it landed and returned to the hangar. Mr Hanley has given a consistent version of events at his meetings with CASA personnel, and at the Tribunal. I noted that Mr Hanley did not elaborate on the method of towing for Mr Bennetts, his explanation being that he was not asked for details.
Mr Hanley also made much of Mr Hope being angry and using expletives after the accident. He gave that as his reason for asking Mr Hope to leave the scene of the accident, and go home. Both men agreed that Mr Hope had reason to be angry at the thought of how much the repairs to the helicopter might cost, and how it might affect Mr Hope’s holiday plans. Both agreed he used at least one expletive immediately after the accident, but disagreed on the extent of his swearing. Mr Shields submitted I should consider Mr Hope’s status as a business person, and demeanour before the Tribunal to accept that he would not have sworn in the manner Mr Hanley alleges. I don’t necessarily accept that submission.
What I do accept is that Mr Hope valued Mr Hanley as his friend, as his instructor, as the person who helped him choose the helicopter, and who was teaching not only him, but his son to fly. I am satisfied that he agreed to provide the same version of events as Mr Hanley in order to assist him. Mr Hope says that he first agreed to corroborate Mr Hanley’s version, but that after the casual meeting with Mr Snell who was Elton John’s helicopter pilot on the night of the concert at Mr Hope’s vineyard, and following their conversation which I have relevantly reproduced above, he decided to provide what he says is the correct factual version of events.
I noted that Mr Hope was particularly busy in December 2011 because he had high profile concerts taking place at the vineyard. I accept his evidence that it was for that reason he thought that meeting up with Mr Bennetts, and having to make a statement, would be too time consuming.
I am also satisfied from the evidence that once Mr Hope had had the casual conversation with Mr Snell on 4 December 2011, and realised that his life had been at risk, even if he had flown only a short distance in a severely damaged helicopter, he felt he had to admit what had actually occurred. I am also satisfied with Mr Hope’s explanation that he did not feel he had done the right thing in covering for Mr Hanley, and needed to rectify the situation.
In rejecting Mr Hanley’s version of events, I am satisfied that he left the motor running after the accident, left Mr Hope sitting in the helicopter, and then taxied it back to the hangar with Mr Hope in it. The detail he provided regarding how he attached the helicopter to the quad bike and towing apparatus, which he admits is not standard, was not convincing. His detail about how the wire strike scratched the label as depicted in the photograph (Exhibit R5) was not convincing. In that regard I am mindful of Mr Rapp’s difficulties in comprehending how Mr Hanley set up the towing equipment, and how it worked, the location of the scratches, and his misgivings about whether it had all occurred in the way described.
I was mindful of Mr Rapp’s evidence, noting that he is an airworthiness inspector, that whilst it was not impossible for one person to carry out the towing as Mr Hanley had described, it would not have been easy.
In coming to a decision regarding credit, I also noted above that Mr Hanley was not consistent in how he described his role in causing the accident (Exhibit A1 and Mr Hanley’s oral evidence). I am also mindful that he minimised his description of the damage in the email to CASA (Exhibit R3).
Ultimately I preferred Mr Hope’s evidence even though he had originally agreed to promulgate Mr Hanley’s version of how the helicopter was moved after the accident.
Who wanted the accident kept ‘quiet’
Mr Hanley (Exhibit A1, [12]-[14]) and Mr Hope (Exhibit R7, [24]) accused each other of expressing a desire that information about the heavy landing not be made public.
Mr Hanley denied telling Mr Hope that he wanted the accident kept quiet, and not mentioned to Mr Hope’s pilot friends. He also denied saying he wanted the helicopter moved out of the hangar quickly in case his students saw it.
Mr Hanley did give evidence, however, that he cancelled two students scheduled for 31 October 2011, because Mr Hope said he would prefer that no one saw the damage to the helicopter.
Mr Hope, on the other hand, said that Mr Hanley had asked him to keep the incident quiet, and not mention it to his (Hope’s) pilot friends who worked for SLATTERY Helicopters and WINE Country Helicopters. He also said that Mr Hanley insisted the helicopter be covered in the hangar in order to obscure the evidence of the damage.
Whilst the question of who wanted the accident kept quiet is not the pivotal point in the decision making process in this matter, issues of credit are of great importance in the decision I have to make. I am satisfied that there was no particular reason except in order for students not to see the damaged helicopter that Mr Hanley cancelled his teaching commitments on 31 October 2011. I am satisfied that it is more likely that Mr Hanley wanted the matter kept quiet in order to protect his reputation as an instructor in the aircraft industry. I am also satisfied he had more to lose than Mr Hope, who did not cause the heavy landing, and whose reputation did not depend on the damage caused to his helicopter by his instructor. I am satisfied the choice of the repairer in Queensland was not an issue.
Reporting the accident
As one would expect there are protocols in place for reporting air accidents. There was criticism of Mr Hanley for the time taken to report the accident to the various authorities, CASA, the Australian Transport Safety Bureau (ATSB), and his employer, Apple Helicopters. I have noted the criticism made of Mr Hanley by the Respondent that all reports were made after the helicopter had been moved to Heliwork on 2 November 2011, in order to prevent inspection of the damage. I have noted further, that in fact a CASA inspector, FOI Allwood, attended at Heliwork to inspect the damage, unannounced, on 3 November 2011, the day after the helicopter arrived there.
The documentary evidence indicates that Mr Hanley endorsed the maintenance release on the day of the accident, stating that the helicopter had sustained substantial damage due to the heavy landing, and was unairworthy (T16/111). However, I have found in the paragraphs above that it is more likely than not that Mr Hanley taxied the damaged helicopter back to the hangar, and only then endorsed the maintenance release. That indicates he commenced a flight after the helicopter had incurred major damage potentially in breach of section 20AA of the Act and regulation 47(1) of the CAR by failing to immediately terminate the flight and endorse the maintenance release.
Mr Hanley told me that he contacted Robert Armstrong, the insurance agent on Sunday morning 30 October 2011, the morning after the accident, and that they discussed the repair of the helicopter a number of times.
Mr Hanley said that given the accident occurred with a privately owned aircraft, no other aircraft had been involved, and only he and Mr Hope were involved, meant there was no obligation to notify CASA. However, he said that he attempted to contact Mr Leonard Yates at CASA by telephone on 31 October 2011 to report the heavy landing, but was unable to make contact. He said that he telephoned again on 3 November 2011, and left a voice mail for Mr Yates, as well as notifying him by email (Exhibit R3). In the email, he wrote: Initially it didn’t seem like there was any major damage to the aircraft. Mr Hanley told me that his reason for writing what he did to CASA was because he is not an engineer, and did not understand the full extent of the damage. He had however put in the maintenance release indicating the helicopter was unairworthy after taxiing the helicopter to the hangar. I was satisfied from Mr Hanley’s evidence, and the other evidence before me, that although the full extent of the damage may not have been known until the helicopter had been dismantled for repair, his email message did not disclose the extent of the damage of which he was aware when he wrote it.
Mr Hanley accepted that he did not report the accident to the ASTB as soon as reasonably practical after it occurred, and failed to submit a written report within 72 hours, which he admitted he knew was obligatory. Mr Hanley said that he contacted the ATSB by telephone on the afternoon of 31 October 2011, and spoke to a person who answered the telephone, and gave him advice regarding the necessity of reporting the accident. He said that he then made a formal report on 3 November 2011. I have noted that this occurred within five days, whereas the requirement is to report within three days. He is likely to have contravened sections 18(1) and 19 of the Transport Safety Investigation Act 2003.
Mr Hanley sought to blame the delay in reporting on Mr Hope, saying that Hope was concerned about his standing in the local environment community, and that he had been embarrassed regarding the accident and didn’t want the local people knowing. Mr Hanley also further explained the delay in reporting the accident to the ATSB by stating that Mr Hope said: Well, let’s just, you know, let’s get it out of here first and we’ll deal with it [the reporting] then. I don’t care what you do once we get it out of here.
In reply to that, Mr Hope’s evidence was that he did not have knowledge about reporting duties.
Mr Hanley did not report the accident to Apple Helicopters until 2 November 2011 contrary to the Apple Operations Manual, pursuant to which he was required to report accidents immediately. This constituted a breach of regulation 215(9) of the CAR. Mr Hanley agreed in cross-examination that meant his employer was placed in breach of obligations under the drug and alcohol management plan in place pursuant to the Civil Aviation Safety Regulations 1998.
In summary, as noted above, Mr Hanley did not take his reporting obligations as seriously as he should have, and has been in breach of various Civil Aviation Regulations and likely, sections 18(1) and 19 of the Transport Safety Investigation Act 2003.
The Tribunal’s conclusions regarding regulation 269(1)(c)
As noted above, in considering whether, the Applicant has failed in his duty as the holder of pilot licences and instructor ratings in respect of a matter or matters affecting the safe operation of an aircraft within the meaning of regulation 269(1)(c) of the CAR, I considered the matters under the headings listed below. I am mindful also that issues of credit were very pertinent in this case, and arose under each of the following headings.
·what occurred during the helicopter flight on 29 October 2011 when Mr Hanley attempted to demonstrate an autorotation to his student, Mr Hope;
·what occurred following the accident, and how the helicopter was returned to the hangar;
·who wanted the accident kept quiet, and
·reporting of the accident to the relevant authorities.
In regard to dot point one, I am satisfied and I have found that Mr Hanley demonstrated an autorotation to Mr Hope during a flight on 29 October 2011 spontaneously, without planning it properly, without first instructing Mr Hope in the classroom, and that Mr Hanley caused the accident due to not correctly completing all the pre-landing checks.
As to dot point two, I am satisfied and I have found that Mr Hanley did not give a true account of how he returned the helicopter to the hangar after the accident. I am satisfied and have found that he taxied the severely damaged helicopter back to the hangar with Mr Hope in it, after the accident.
As to dot point three; I am satisfied and I have found that it was Mr Hanley who wanted to keep the accident quiet.
As to dot point four; I am satisfied and I have found that Mr Hanley did not report the accident to the relevant authorities within the required time frames, and that he did not report the full extent of the damage to each one.
Accordingly I find that the Applicant has failed in his duty as the holder of pilot licences and instructor ratings in respect of a matter or matters affecting the safe operation of an aircraft within the meaning of regulation 269(1)(c) of the CAR.
WHETHER MR HANLEY IS A FIT AND PROPER PERSON IN REGARD TO HOLDING PILOT LICENCES
In coming to a decision in this matter, I am also required to consider the application of regulation 269(1)(d) of the CAR. That entails, having regard to all of the evidence now available, and consideration of whether Mr Hanley is not a fit and proper person to have the responsibilities, and exercise and perform the functions and duties of a holder of authorisations such as his various pilot licences. Regulation 269(1)(d) of the CAR authorises CASA, and accordingly the Tribunal to cancel, vary or suspend a pilot licence if the holder of that licence is 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.
The term fit and proper person is not defined in the CAR or in the Act. I must therefore take into account the legislative context and the activities in which the licence holder is engaged, and the purposes for which those activities are conducted. The safety of air navigation is the most important consideration: section 9A of the Act.
The meaning of the expression fit and proper person in the context of whether the holder of a commercial broadcasting licence, which encompasses different legislation, was no longer a fit and proper person to hold the licence was considered in Australian Broadcasting Tribunal v Bond (1990) 190 CLR 321 at 380 Toohey and Gaudron JJ said:
The expression “fit and proper person”, standing alone, carries no precise meaning. It takes its meaning from its context, from the activities in which the person is or will be engaged and the ends to be served by those activities. The concept of “fit and proper” cannot be entirely divorced from the conduct of the person who is or will be engaging in those activities. However, depending on the nature of the activities, the question may be whether 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, character (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.
The question of whether someone is a fit and proper person in the context of entitlement to hold pilot licences was referred to in Re Taylor and Department of Transport (1978) 1 ALD 312. In that case the Tribunal in considering the predecessor to regulation 269(1)(d), 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 Re Griffiths and Civil Aviation Authority (1994) 34 ALD 554, the question of fit and proper was also considered. In that case Mr Griffiths had committed various breaches, including record keeping, flying unauthorised over water and otherwise breaching his duties as a chief pilot. Mr Griffiths was found to not be a fit and proper person to have the responsibilities and exercise and perform the functions and duties of any unrestricted licence.
The regulation requires a consideration of the Applicant’s conduct weighed up against the responsibilities, functions and duties of the holder of a commercial pilot licence pursuant to the Regulations. The primary interest is in the safety of air navigation which includes, of course, the interests of pilots, owners of aircraft, passengers and the public.
I am mindful that the matter of Shi v Migration Agents Registration Authority (2008) 235 CJR 286 is authority for the proposition that the date at which the Tribunal must consider the question of whether the Applicant is a fit and proper person to hold his various pilot licences is the date upon which the Tribunal makes its decision on the application for review.
In summary, the main issue in this matter was the manner in which Mr Hanley had moved the helicopter from where it had landed at Maitland Airport to the hangar, and his credibility. Ms Price submitted that Mr Hanley had given consistent reports regarding how he moved the helicopter, and that he categorically denied having hover-taxied the helicopter to the hangar after the accident. She submitted that no adverse implications should be drawn from the fact Mr Hanley gave a fulsome explanation of how he towed the helicopter at the Tribunal, whilst he had given only a brief description to Mr Bennetts, and simply mentioned having used wheels and towing equipment. She also submitted that Mr Rapp had accepted it was possible to tow the helicopter in the way described by the Applicant.
Ms Price submitted in the alternative, that if Mr Hanley’s explanation of how he moved the helicopter was not accepted, then there was still no justification for cancellation of his licences as there had been no failure of duty with respect to any matter affecting the safe navigation or operation of an aircraft (regulation 269(1)(c)), or that the Applicant is not a fit and proper person (regulation 269(1)(d)).
Ms Price submitted that even if the Tribunal were minded on the evidence to find that Mr Hanley had taxied the helicopter back, I ought to take into account the short duration of the alleged breach, which involved a low hover flight of approximately 350 metres, together with the fact that no person was injured. Further, the Applicant had endorsed the maintenance log immediately upon return to the hangar to the effect that the aircraft had suffered significant damage and was unairworthy. There was consequently no risk that the aircraft could have continued to be a risk to safe air navigation.
Ms Price emphasised that Mr Hanley’s evidence should be accepted because he had made fair and appropriate concessions. He had agreed that the method of towing the helicopter was not an approved one. He had accepted that he had only discussed emergency procedures with Mr Hope at various times, and not given him formal classroom instruction prior to the autorotation, and admitted that he had not planned the autorotation and accompanying briefing formally. She submitted that he had further admitted to delays in reporting the heavy landing because he had acceded to Mr Hope’s request to keep the matter quiet.
Ms Price made extensive submissions about why Mr Hope’s evidence should not be accepted over that of Mr Hanley, because Mr Hope had changed his story, because he was motivated to give untruthful evidence towards Mr Hanley, upon whom he had relied, and who had then damaged his helicopter. Ms Price also emphasised Mr Hope’s reluctance to speak to Mr Bennetts.
Mr Shields, on the other hand, submitted the Respondent’s position was that Mr Hanley had taxied the helicopter back to the hangar after the accident on 29 October 2011. He submitted Mr Hope’s evidence should be preferred as he had initially agreed with Mr Hanley’s version of events to assist Mr Hanley, and had then decided the truth needed to be revealed, particularly when he realised that both his and Mr Hanley’s life had been endangered. He commended Mr Hope for conceding he had at first done the wrong thing, and noted his evidence that he would not do that again. He submitted that Mr Hope had nothing to hide as he had not crashed the helicopter, and did not want the matter kept quiet, whereas Mr Hanley, as an instructor did not want his reputation tarnished further because he had already been involved in a similar incident in 2004.
Mr Shields also emphasised the difficulties in eliciting replies from Mr Hanley in cross-examination in regard to any instruction given to Mr Hope prior to the autorotation demonstration, and Mr Hanley’s attempt to attribute the reason for the heavy landing to a fault in the helicopter.
Mr Shields also submitted that Mr Hanley had attempted to mislead CASA about the seriousness of the damage the helicopter had sustained, and emphasised that he made the relevant notifications with delays, in breach of legislation and relevant regulations.
I have already concluded in the paragraphs above that I am satisfied from the evidence that Mr Hanley’s version of events regarding how he returned the helicopter to the hangar after the accident on 29 October 2011 was false. I preferred the evidence of Mr Hope who accepted he had made an error of judgement, which he said he would not repeat by agreeing to promulgate Mr Hanley’s version of events. I accepted Mr Hope’s evidence that Mr Hanley taxied the helicopter back to the hangar with both of them in it after it had sustained serious damage during the autorotation.
I was also concerned about the delays in reporting the accident, the inconsistencies in reporting the reasons for the accident, and the inconsistencies in reporting on the level of damage incurred.
I have considered the legislation and relevant case law. I find that when I take into account the various aspects of Mr Hanley’s conduct, and in particular the less than truthful version of events he has promulgated, in particular regarding how the helicopter was moved back to the hangar after the accident, he is in terms of the aviation industry, not a fit and proper person to hold the various licences and authorisations he has held. These findings enliven the discretion to cancel, vary or suspend those authorisations.
The 2004 incident
I have noted the submissions of both parties with regard to an incident in which Mr Hanley was involved in 2004. I note for the sake of completeness that although he admitted to hover taxiing a helicopter back to the hangar after a heavy landing on that occasion, no finding was made against him, and CASA did not take any action against him.
I do not find that incident relevant to the matter before me, and have not taken it into account in any way in reaching my conclusions here.
THE TRIBUNAL’S CONCLUSIONS
In conclusion, as discussed above, I prefer the version of events given by Mr Hope to that of Mr Hanley regarding the accident of 29 October 2011. In reliance on the legislation, case law and the evidence before me, I have found that Mr Hanley’s conduct as a pilot demonstrates that he has failed in his duty to ensure the safe operation of aircraft for the purposes of regulation 269(1)(c).
I have found in the paragraphs above that Mr Hanley is in terms of the aviation industry, not a fit and proper person to hold the various licences and authorisations he has held (regulation 269(d)).
These findings enliven the discretion to cancel, vary or suspend Mr Hanley’s licences and authorisations.
It is likely that Mr Hanley has also breached section 20AA of the Act by commencing a flight when the helicopter had sustained major damage; and regulation 47(1) of CAR by failing to immediately terminate the flight and endorse the maintenance release to the effect the helicopter was unairworthy. By flying the helicopter after it had sustained major damage, the Applicant risked not only his own, safety but that of his student, Mr Hope, and potentially other persons in or about the vicinity.
In view of the findings I have made, I am satisfied that the correct or preferable decision is to affirm the cancellation of Mr Hanley’s various licences and authorisations. I am mindful in making this decision of the impact this will have on Mr Hanley’s ability to earn his living, but am mindful also that pursuant to section 9A of the Act, the safety of air navigation is the most important consideration.
DECISION
The Tribunal affirms the decision under review.
I certify that the preceding 122 (one hundred and twenty two) paragraphs are a true copy of the reasons for the decision herein of Senior Member G Ettinger.
....[sgd].........................................................
Associate
Dated 21 November 2012
Dates of hearing 25, 26 July and 19, 20 September 2012 Counsel for the Applicant Ms D Price Representative for the Applicant Mr A Molnar, Australian Federation of Air Pilots Counsel for the Respondent Mr B Shields Representative for the Respondent Mr A Carter, Legal Branch CASA
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