HODGSON and CIVIL AVIATION SAFETY AUTHORITY
[2011] AATA 825
•22 November 2011
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2011] AATA 825
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2011/0644
| GENERAL ADMINISTRATIVE DIVISION | ) | ||
| Re | BRETT HODGSON | ||
Applicant
| And | CIVIL AVIATION SAFETY AUTHORITY |
Respondent
DECISION
| Tribunal | Ms G Ettinger, Senior Member Air Vice Marshal F Cox, AO, (Retd), Member |
Date22 November 2011
PlaceSydney
Decision The Tribunal affirms the decision under review
.....................[sgd]........................
Ms G Ettinger
Senior Member
CATCHWORDS
CIVIL AVIATION – Applicant who had been the owner of a helicopter training school had his Grade 1 and Grade 2 Flight Instructor (Helicopter) ratings, Chief Pilot status, Commercial Pilot Licence and Air Operators Certificate (AOC) cancelled by CASA in 2009 – Applicant appealed to the Tribunal - in a consent decision of the Tribunal dated 7 October 2010, the parties agreed to affirm the decision save restoring the Applicant’s Commercial Pilot Licence with conditions – in this application, the Applicant is applying for permission to undertake conversion training – permission for conversion training is customarily given only to persons who hold Flight Instructor Ratings – few exceptions are made – pursuant to the terms of the consent decision, the Applicant is not to reapply for Flight Instructor Ratings until 30 June 2012 - decision under review affirmed.
Civil Aviation Act 1988 (Cth), s 9A
Civil Aviation Regulations 1988 (Cth), regs 5.21
Civil Aviation Safety Regulations 1998 (Cth)
Hodgson and Helicopters Pty Ltd v Civil Aviation Safety Authority [2009] AATA 632.
Civil Aviation Order 40.3.7 - Flight instructor (helicopter) rating 2004
REASONS FOR DECISION
| 22 November 2011 | Ms G Ettinger, Senior Member Air Vice Marshal F Cox, AO, (Retd), Member |
| SUMMARY |
Mr Brett Hodgson is a helicopter pilot of long standing. He has flown commercially since 1991, and from 1999 he owned and operated Helicopters Pty Ltd, (the Company), a flying school which at one time owned a number of helicopters.
In 2009, CASA cancelled Helicopter Pty Ltd’s Air Operators Certificate (AOC), and all Mr Hodgson’s approvals in regard to flying and instructing. Mr Hodgson appealed that decision, and a consent decision which is reproduced in the paragraphs below, was made at the Tribunal on 7 October 2010. That left him with his Commercial Pilot Licence which had conditions imposed upon it.
Then on 26 October 2010 Mr Hodgson made an application to CASA seeking approval to conduct conversion training in regard to helicopters pursuant to the Civil Aviation Regulations 1988 (CAR) 5.21. CASA refused that application in a decision dated 27 January 2011.
As in its determination of 2009, CASA based its refusal on Helicopters Pty Ltd, and Mr Hodgson’s breaches in regard to:
conducting flying training without a CFI, which was in breach of the Company’s AOC;
conducting flying training without having a current standardisation and proficiency check flight contrary to paragraph 11.6 of Civil Aviation Order 40.3.7 - Flight instructor (helicopter) rating 2004 (CAO); and
with maintenance outstanding.
In making its 2011 decision, CASA, as previously, also relied on the evidence of Peter Anthony Holstein, a flying instructor who made certain adverse allegations regarding the quality of training given by Mr Hodgson.
In its 2011 decision, CASA stated that a significant purpose behind its consent was to enable you to re-establish your credentials as a flying instructor and testing officer, over the period up to 30 June 2012, by firstly establishing a record as a compliant commercial pilot.
We are mindful that pursuant to its legislative purposes, CASA’s primary concern is the safety of air navigation. CASA submitted that a person is not authorised to give Helicopter Conversion Training unless that person holds a Flight Instructor (Helicopter) Rating, with the helicopter endorsement applicable to that helicopter, or an approval under CAR 5.21. There are few exceptions.
Mr Hodgson has claimed that, given the restrictions placed upon his Commercial Pilot Licence as a result of the Consent Orders made at this Tribunal on 7 October 2010, he has encountered difficulty obtaining work as a commercial pilot. Further, he says that he now has in place all that is necessary for him to hold approval for conversion training.
Mr Hodgson represented himself at the hearing, and CASA was represented by Mr B Shields of counsel.
We preferred the Respondent’s argument, and have affirmed the decision under review. Our reasons follow.
ISSUES BEFORE THE TRIBUNAL
The issue in this application is to make the correct or preferable decision with regard to whether Mr Hodgson should be granted an approval to conduct conversion training pursuant to CAR 5.21.
THE LEGISLATIVE ENVIRONMENT
CASA’s role, pursuant to section 9A of the Civil Aviation Act 1988, (the Act), is to ensure the safety of air navigation. Accordingly, this Tribunal, when carrying out its review, and exercising the powers under the Act, the CAR, and the Civil Aviation Safety Regulations 1998 (CASR), must treat the safety of air navigation as the most important consideration.
The process of obtaining approval from CASA to deliver conversion training is outlined in regulation 5.21 of the CAR:
5.21 Approval to give conversion training
(1) CASA may approve:
(a)a person who holds an aeroplane pilot licence to give aeroplane conversion training; or
(b)a person who holds a helicopter pilot licence to give helicopter conversion training.
(2) CASA may give an approval subject to any condition that is necessary in the interests of the safety of air navigation.
(3) CASA must set out the condition in the approval.
(4) A person must not contravene a condition to which his or her approval is subject.
Penalty: 50 penalty units.
(4A) An offence against subregulation (4) is an offence of strict liability.
Note For strict liability, see section 6.1 of the Criminal Code.
(5) CASA may, in writing, revoke a person’s approval if:
(a)the person’s pilot licence is suspended or cancelled; or
(b)a Court makes an order in relation to the person under section 30A of the Act that affects the authority given by the person’s pilot licence; or
(c)there are reasonable grounds for believing that the person has contravened a condition to which his or her approval is subject; or
(d)it is necessary to do so in the interests of the safety of air navigation.
(6) If CASA revokes a person’s approval, it must give the person written notice of the revocation setting out the grounds for the revocation.
Insert responsibilities of CFI - see para six of the reviewable decision R1/7
BACKGROUND
Mr Hodgson is 51 years of age, and came to aviation in 1986 after a number of other careers, including plumbing, and being on the land. He is the sole director of Helicopters Pty Ltd. On 17 June 2009, CASA cancelled Mr Hodgson’s Commercial Pilot Licence and Flight Instructor (Helicopter) ratings, as well as his authority to be Chief Pilot of the Company, and the Company’s AOC. Mr Hodgson appealed CASA’s decision. The decision was stayed after a hearing at the Tribunal (Hodgson and Helicopters Pty Ltd v Civil Aviation Safety Authority [2009] AATA 632). The Members of the Tribunal noted in the Stay decision made on 25 August 2009, that neither the Applicant nor the Company had been engaging in flight training since January 2009. We noted however that from the statement of FOI Malcolm Campbell dated 16 December 2009 which is at Exhibit R2/T8, that notwithstanding various communications with Mr Hodgson regarding the resignation of Mr Anderson as CFI, the status of his flying instruction and audit of his activities, he was still found to have conducted flying training with the Company for two students between 1 February 2008 and 5 February 2009.
When the matter came to hearing at the Tribunal in 2010, Mr Hodgson, who was legally represented, came to an agreement with CASA which was given effect to in a decision of the Tribunal dated 7 October 2010. No evidence was taken at the hearing. The Consent Order was as follows:
Pursuant to subsection 42C(2) of the Administrative Appeals Tribunal Act 1975, the Tribunal decides that:
The applications to the Tribunal insofar as they relate to the First Applicant's approval as Chief Pilot of the Second Applicant and the First Applicant's Grade 1 and Grade 2 Flight Instructor (Helicopter) ratings are dismissed.
The applications to the Tribunal insofar as they relate to the Second Applicant's Air Operator Certificate are dismissed.
The decision to cancel the First Applicant's Commercial Pilot Licence is set aside and substituted with the decision that the licence be varied with the addition of the following conditions:
Supervision
The licence holder to present to the CASA his Pilot log book for inspection on or before each of the following dates: 17 December 2010; 30 June 2011; 17 December 2011; 30 June 2012.
Employment
The licence holder to notify the CASA of the name and address of his employer in commercial flying operations within seven days of commencement of employment or change of employment.
Instructor rating
The licence holder shall not apply for renewal of his Grade 1 and Grade 2 Flight Instructor (Helicopter) ratings before 30 June 2012 and upon compliance with Condition 1 hereof as to supervision and Condition 2 as to employment reporting. Any renewal application shall be accompanied by a recommendation by a Chief Flying Instructor (Helicopters) that the licence holder is ready to attempt the test for a specified grade.
All flight tests conducted for renewal as set out above shall be conducted by a CASA officer.
That meant that the Company’s AOC was cancelled, Mr Hodgson’s licence as Chief Pilot of the company was cancelled, and Mr Hodgson’s Grade 1 and Grade 2 Flight Instructor (Helicopter) ratings were cancelled. He is left with the Company, which does not hold an AOC, and he is the holder of a Commercial Pilot Licence with conditions, as noted above. Conditions also apply in relation to any application he may make to restore his Flight Instructor ratings.
Mr Hodgson’s evidence was that he may have been badly advised to consent to the above in 2010. He also said that he was in a bad way emotionally at the time, having been in litigation with Bankstown Airport when it was privatised, with marital problems, the death of his father, and financial and other personal problems.
We note that without Flight Instructor ratings, it is difficult save for in exceptional circumstances, to be issued with approval to give conversion training. Mr Shields submitted that the exception situations arise in a large check and training organisation, or where an applicant has a particular and sought after skill in flying, or in owning a rare aircraft. We can say that none of the above apply to Mr Hodgson’s situation, although he told us that he has a niche market with his Bell 47 helicopter knowledge, because the helicopters have certain characteristics, and are designed in particular, to carry greater weight than other helicopters. He also described his helicopters giving the analogy of driving a manual motor vehicle versus an automatic. Mr Hodgson told us that he has access to six Bell 47 helicopters (we presume for teaching purposes if he were to be allowed to teach).
We were interested to hear Mr Hodgson’s evidence that two of the helicopters are still connected to him. However, we understand from other evidence before us that neither Mr Hodgson nor his Company presently own any helicopters. We note further that his Company has no assets.
Mr Hodgson told us that he had discussed the issue of trying to obtain authority to conduct conversion training with certain CASA personnel who thought it might be a good idea for him to apply. He also thought that it would assist him if he could remain an instructor of some sort, in order to keep current skills up, and to demonstrate his credibility. Mr Hodgson said that he owned a Bell Iroquois helicopter in 2003 which was bought for fire fighting, but that he had had to sell it in 2008 due to the litigation in which he was involved. He tendered a photograph of Bell Iroquois UH1H which is being restored (Exhibit A23).
Mr Hodgson also told us that he had found it difficult at his age, and with the conditions with which he must comply, to obtain commercial work, which is in fact all he can do pursuant to the current regime which binds him. In relation to obtaining work, he described himself as too hot to touch.
His evidence to us was that he has had no recent commercial work, and is unable to compete with younger pilots for it. He said however that he supports the Museum of Flying, and would like to conduct conversion training under the auspices of the Australian Warbirds Association. Other voluntary work he is doing is assisting with restoration of an ex-military Bell 47 helicopter from the Vietnam era.
Mr Hodgson told us that he is looking after his mother who is aged 80, and wanting to pursue new directions in order to bring his family home. He is very taken with experiential learning and described his interest and his attitudes to it, to us. Whilst we applaud his interest in learning, we did not consider the documents related to experiential learning which Mr Hodgson wanted to tender, relevant to the decisions we must make.
We understand Mr Hodgson’s concern that, at the time of the October 2010 hearing, he was not able to discuss some of his trials and tribulations. This was due to the fact there had been no hearing of evidence. He had been advised by his legal representatives with regard to the settlement and Consent Order which ultimately took place on 7 October 2010.
Mr Hodgson expressed frustration in that regard, submitting that after a time, breaches of rules and regulations should no longer apply. He gave the analogy of points lost in regard to motor vehicle offences. Mr Hodgson feels that notwithstanding he has not been instructing since January 2009, CASA continues to raise the same arguments to prevent him from instructing and earning his livelihood.
We are mindful that in arguing this matter, the Respondent raised many of the issues which led to the cancellation of the various licences in 2009, and which were dealt with by the Consent Order of the Tribunal on 7 October 2010.
For this hearing, Mr Hodgson required a number of the witnesses who had produced statements for the 2010 hearing, for cross-examination.
For the sake of completeness we also note that Mr Hodgson provided a copy of a decision of CASA dated 11 October 2011 in response to an application by Mr Ravinda Singh of Sydney Scenic Helicopters ARN 785206 to have Mr Hodgson appointed Chief Pilot of his company. That application was not granted. We understand that Mr Singh appealed to this Tribunal, and subsequently withdrew his application. The CASA decision of 11 October 2011 is not before us.
In order to make the correct or preferable decision in this application, we need to traverse in detail certain of the issues which led to CASA’s decision of 27 January 2011. They follow.
The Chief Flying Instructor (CFI) issue
One of the issues which consumed hearing time, and which is relevant to our decision making, was the evidence surrounding the resignation of Mr John Anderson as Chief Flying Instructor (CFI) of the Company. Mr Anderson had been CFI of the Company since 28 February 2001. The Company’s AOC required, pursuant to section 28BB of the Act, that the company employ a person as CFI who was approved by CASA in order to operate according to aviation law. It is however not in dispute that Mr Hodgson operated without a CFI, and continued to provide flying instruction in contravention of the legislation from the end of 2007 to early 2009. CASA recorded from its audit that Mr Hodgson provided flight training on 202 days without a CFI during 2008, and contrary to legislative requirements
We noted that Mr Hodgson would like to have had Mr Anderson give evidence at the hearing before us, but we were told that he was not available to do so. Accordingly we have taken into account all the relevant evidence in regard to the CFI situation of Helicopters Pty Ltd, in relation to the cancellation of the Company’s AOC, and Mr Hodgson’s authorities to conduct flying training.
We noted that on 1 October 2006, which is the earliest correspondence before us in that regard, Mr Anderson wrote to Mr Hodgson on the Company’s letter head in the following terms:
Please be advised that now you have completed over 250 hrs of helicopter instruction, you may carry out duties of the C.F.I. as directed.
Therefore during periods of my absence you are to carry out my duties as C.F.I. of the school. As the company’s C.P. you should have no problem with day to day operations.
… (Exhibit A2)
We do not have evidence regarding what authority Mr Anderson held in order to appoint Mr Hodgson CFI in his absence. However, we understand that is a function of CASA, and not an individual such as Mr Anderson.
On 1 August 2007, Mr Anderson wrote to Mr Hodgson on the Company letter head as follows:
This letter is to officially inform you that I John Robert Anderson ARN 161817 C.F.I, Helicopters Pty Ltd, will resign from the C.F.I. appointment on 30 Aug 07, or to the nearest date thereafter on approval of CASA (BK basin) for another appointment/approval.
As per our previous discussions, you will need to submit Form No 277 to CASA for your approval to become C.F.I.
As director of Dynamic Helicopters, and with Capt Kato moving on, I need now to dedicate my efforts towards Dynamic Helicopters.
… (Exhibit A3)
Mr Anderson then wrote to CASA on 25 January 2008 stating that the effective date for his resignation as CFI of Helicopters Pty Ltd was to be 31 January 2008.
In that regard we were mindful of a file note dated 4 February 2008 written by Malcolm Campbell, Acting Team Leader Flying Operations of CASA. In it he recorded that John Anderson had resigned as CFI of Helicopters Pty Ltd, and that he had rung Mr Hodgson at 11:30 am on 4 February 2008. He stated:
I reminded him that he could not conduct flying training until a CFI is approved. … I said that I was referring to John Anderson’s resignation from the position of CFI effective the end of January. Brett said he was not aware of this and he would make arrangements for his test [for CFI], as soon as possible.
We noted that Mr Hodgson agreed when questioned at the Tribunal that he had received the telephone call from Mr Campbell as mentioned in the paragraph above. However he also said that he continued with training on the basis he thought Mr Anderson was still the CFI. He added: I was confused … if he told me, it didn’t register. I would have expected a letter … my state of mind … I was a mess.
We are unable to reconcile Mr Hodgson’s inconsistent replies to questions regarding Mr Anderson’s resignation, and we are satisfied that he knew precise details of the resignation during the latter half of 2007, but at least, by 4 February 2008.
We then noted that in preparation for the 2010 Tribunal hearing, Mr Anderson swore a Statutory Declaration on 16 October 2009. He declared as follows:
(1) I have always been under the understanding that I am the C.F.I. of Helicopters Pty Ltd until one of two following situations occur:
(A) I would resign from my CFI position on the 30/Aug/07 providing Mr Hodgson’s position of CFI approval was finalised.
(B) I would stay on as CFI with CASA blessings until the new CFI approval process has been finalised regardless of the time frame.
(2) The above two points being reinforced to me by the conversations I had had at the Company CASA audit, and with the audit conducting officer at a later date.
(3) At no time had CASA informed the school or myself that flying training was to cease.
…. (Exhibit A4)
As Mr Anderson did not give evidence at the hearing, we were unable to question him about the content of his Statutory Declaration of 16 October 2009. His statements in it regarding his resignation were at odds with his other letters and statements as noted above, where he is quite explicit that his date of resignation is 30 August 2007, and later, that it was to be effective 31 January 2008. There was no mention that it was to be contingent upon approval of a replacement CFI. We noted that the Declaration above was made in preparation for the 2010 Tribunal hearing, and may accordingly have been modified to ameliorate Mr Hodgson’s situation.
In case there might be any doubt about Mr Anderson’s intentions and Mr Hodgson’s knowledge of those, we were mindful in particular of Paragraph 1 of a letter of Maitland Lawyers, Mr Anderson’s legal representatives, who wrote to CASA regarding Mr Hodgson’s show cause notice. The letter was dated 18 February 2008 and states relevantly as follows:
We agree with the facts set out therein but say further that Mr Anderson resigned as CFI of Helicopters Pty Ltd on 22 August 2007. This resignation was again confirmed on 30 August 2007 and again on 31 January 2008.
Clearly Mr Hodgson’s lawyers understood Mr Anderson to be resigning as they have noted above. We cannot be satisfied that Mr Hodgson did not therefore also know.
However we must consider other evidence in that regard, noting that Mr Roger Weeks, then CASA’s Manager, Flying Standards Branch located at Bankstown provided a statement dated 16 December 2009, (T7), and also gave oral evidence at the Tribunal. In his statement he discussed the resignation of John Anderson, and meetings he held with Mr Hodgson regarding the CFI position. Mr Weeks indicated that in December 2007, he became aware that Mr Anderson’s pilot licences had been cancelled by CASA in WA. Mr Weeks stated that CASA became concerned that Mr Anderson had been spending long periods of time interstate, and away from his CFI post at Helicopters Pty Ltd.
Mr Weeks stated that after a show cause notice was issued to Mr Anderson in January 2008, CASA Flying Operations Inspector (FOI) John Alexander received an email from Mr Anderson on 18 January 2008. That email conveyed a notice that Mr Anderson was resigning as CFI from Helicopters Pty Ltd with effect from 31 January 2008. Mr Weeks also received a confirmatory email from Mr Anderson dated 25 January 2008.
Mr Weeks stated that some days after receiving the resignation from Mr Anderson, he and Acting Team Leader Flying Operations, Malcolm Campbell visited Mr Hodgson at Helicopters Pty Ltd premises at Bankstown Airport. Mr Weeks stated he informed Mr Hodgson that in the absence of a CFI he could not offer flying training, but that because Mr Hodgson was the Chief Pilot, he could still conduct aerial operations and charter work.
Mr Weeks also stated that he knew Mr Hodgson was intending to re-sit the examination for CFI which he had previously, on 7 January 2008, failed. Mr Weeks stated that Mr Hodgson subsequently re-attempted the CFI examination, and was unsuccessful a second time, (8 August 2008).
Meanwhile, on 18 December 2008, a Safety Trend Indicator (STI) assessment recorded that Helicopters Pty Ltd was conducting flying training, and that John Anderson was still shown as the CFI. An audit conducted in January 2009 indicated that Helicopters Pty Ltd had conducted 173.8 hours of flying training between 1 February and December 2008. The audit also revealed that the Company had permitted aircraft to overfly maintenance requirements in contravention of aviation legislation. The findings led to the show cause process which culminated in the 2009 cancellation of all Mr Hodgson’s licences, and the Company’s AOC.
We noted that FOI McGillivray, recorded a file note dated 8 January 2009 of a telephone conversation with Mr Hodgson in which Mr Hodgson confirmed he had ceased flying training operations. He recorded that Mr Hodgson told him he had not been notified of the cancellation of the CFI approval for Mr Anderson.
We found Mr Hodgson’s evidence in regard to Mr Anderson and the CFI issue, equivocal. He stated in his evidence in chief that it was his understanding Mr Anderson would remain CFI until he, Mr Hodgson, was successful in his application to be appointed CFI. We have already said that we found Mr Anderson’s Statutory Declaration to be at odds with all Mr Anderson’s other letters and statements in which he was quite explicit that his date of resignation was to be 30 August 2007, and then 31 January 2008. We have already noted that the Declaration above was made in preparation for the 2010 Tribunal hearing, and may accordingly have been written in order to ameliorate Mr Hodgson’s situation.
When cross-examined, Mr Hodgson said that he found out that Mr Anderson had resigned as CFI from 31 January 2008, but that at the time, he did not know. It was news to me, he said. He also said that he knew Mr Anderson had problems with CASA, but did not know what that entailed.
In deciding when exactly it was that Mr Hodgson knew about Mr Anderson’s resignation as CFI of the Company, we prefer the contemporaneous evidence from the various file notes made by CASA officers which we have quoted, and the letter of Maitland Lawyers cited above. We do not accept Mr Hodgson’s version of events which was inconsistent, and at best, equivocal.
We are not satisfied that Mr Hodgson demonstrated to us the insight to comprehend that the documentary evidence clearly indicates that Mr Anderson had resigned at the end of August 2007, that the resignation had taken effect on 31 January 2008, and that he, (Mr Hodgson), knew latest, on 4 February 2008.
Even after the evidence given which indicated that Mr Anderson resigned as CFI on 30 August 2007, and that the resignation had taken effect on 31 January 2008, Mr Hodgson maintained at the Tribunal that he thought because he had not been notified in writing, that it was in order for him to continue conducting training. We cannot accept that.
In coming to our conclusion, we were mindful of Mr Hodgson’s evidence that he was in distress with litigation with Bankstown Airport in a dispute regarding the termination of his lease, his father had died and he was being audited by the Commissioner of Taxation. Unfortunately none of those events can justify a long term pilot such as Mr Hodgson conducting flight training without a CFI for at least a year, and in breach of CASA’s legislative requirements.
The Peter Holstein issue
We noted that in August 2009, Mr Hodgson, knowing that he could not conduct flight training, approached a long time friend who is a well established flying instructor, and whom he now characterises as a competitor, to complete training for three students. Those students had commenced with Mr Hodgson, and paid fees to him.
We noted that Mr Holstein has been licensed as Chief Pilot of his company Aerowasp Pty Ltd, since the inception of his company in 1992, and has been the CFI since 1996.
Mr Holstein, who took on the three students from Mr Hodgson, was not impressed with the standard of Mr Hodgson’s teaching, and reported that to CASA. He stated at Exhibit R2/T10:
… I found that the quality of training in general was quite poor, and that some of the things which these students have told me about the manner in which they had been trained gave me serious concerns regarding the manner in Mr Hodgson was conducting flying training. For example: Students records were incomplete and log books uncertified. … None of the students I have taken on had ever been given an appropriate pre-flight or post-flight briefing.
Mr Holstein also commented on actual skills in starting or shutting down the helicopter, the lack of security involved in conducting examinations, which were permitted to be taken home, and general deficiencies in knowledge, e.g. use of the radio. Mr Holstein conceded that after he spoke to Mr Hodgson regarding log books not having been certified, Mr Hodgson did certify them. We noted that Mr Hodgson tendered a document in relation to one student which showed several photocopied pages of a certified log book (Exhibit A14).
Mr Hodgson’s evidence, which Mr Holstein wholly disputed, was that he had a commercial agreement with Mr Holstein to apprentice himself to Mr Holstein, (later changed to indentured), and that he would somehow offer flying training through the latter.
Mr Holstein stated in regard to the above: … there were no negotiations entered into for Mr Hodgson to apprentice himself to Aerowasp, nor to commence flying training as an instructor at Aerowasp, nor to have any involvement whatsoever in any operations under either my supervision or under Aerowasp’s AOC.
In response to criticism of his instruction, Mr Hodgson tendered as Exhibit A7, a photocopied page dated 12 August 2009, relating to a student Mr AF, which was characterised by Mr Holstein as an ‘Assessment’. In it he wrote: … A joins us after an 8 month break from flying … reviewed the circuit and hovering and landing/taking off to/from hover. A quite tense but generally capable … good effort despite the break. We understand that was a short assessment prior to taking the student on, and are not satisfied that it negates Mr Holstein’s views about the standard of the students he took over, including his statement regarding the standard of students he gave at paragraph 18(f) of his statement of 7 March 2010. However, we are mindful that the criticism related to only three of Mr Hodgson’s students, and has been relied on by CASA both in making the 2009 decision, and presently.
Mr Hodgson also attempted to justify his training by speaking about the differential training provided for mature age students, the provision of DVDs and videos to them, and the learning systems he liked to use. He attempted to tender a number of documents to demonstrate his ideas. As they are not relevant to our decision making, we decided to take only a printout from Wikipedia titled ‘Systems Thinking’, (Exhibit A5), and Exhibit A22 with regard to training aids, into evidence. We note that there are many methods of training in use in most fields, and that these evolve over time.
We note that CASA took Mr Holstein’s opinions about Mr Hodgson’s flight training into account in making its decisions to cancel both his Chief Pilot Approval, and his other licences. We heard Mr Holstein in oral evidence, and found him to be a credible witness. We did not have any evidence before us to convince us otherwise, and we too find his opinions when taken in the context of the other issues before us, persuasive.
The maintenance issues
CASA has held that Mr Hodgson breached maintenance requirements in operating his helicopters and his flying school. It made detailed findings about maintenance when it cancelled Mr Hodgson’s Chief Pilot Approval on 17 June 2009. In agreeing to cancellation of his Flight Instructor ratings, Chief Pilot Approval, and his Company’s AOC on 7 October 2010, Mr Hodgson has agreed that the issues raised in the reviewable decision of 2009, which included findings that he breached maintenance requirements for his helicopters were as found by CASA.
CASA did not specifically raise the detail regarding maintenance issues in the reviewable decision of 27 January 2011 which was the refusal by it to permit Mr Hodgson to conduct conversion training. It stated however, as part of that decision, that (iv) you conducted flights in VH-HXR with maintenance outstanding, contrary to section 20AA of the CAA, CAR 133(1)(d) and regulation 39.003 of the Civil Aviation Safety Regulations 1998 (CASR). We note that there has been little flying recorded since 2010 because Mr Hodgson does not own any aircraft, and because all Mr Hodgson holds now is a Commercial Pilot Approval with conditions. He also told us that he has had no commercial work available to him. No further breaches have been recorded.
Maintenance requirements are of course of primary importance in the safety of air navigation, and must be complied with.
The evidence of Mr Hodgson, the statement and oral evidence of Paul Simpson, CASA Airworthiness Team Leader, dated 17 December 2009 at Exhibit R2/T9, and Exhibit R3, and a letter of Mr Hodgson dated 5 February 2009 to Mr Simpson in response to his letter of 29 January 2009 were all relevant in regard to the maintenance issues which we must consider in the context of reviewing the refusal by CASA to permit Mr Hodgson approval to provide conversion training.
We were disappointed to find that notwithstanding Mr Simpson’s statement has, since 17 December 2009, been amongst the documents on which CASA has relied, and on which it has based its decisions in relation to Mr Hodgson, a factual error in regard to the Lycoming Service Bulletin (Exhibit R2/p59), was only admitted to during the hearing of this application in November 2011. Although we gave CASA the opportunity of providing a corrected report, it chose not to do so.
We do not need for our purposes to traverse the detail of the maintenance overruns which Mr Hodgson permitted to occur. There is correspondence between CASA and Mr Hodgson regarding an audit of maintenance releases and logs at Exhibit R1/T16, and Mr Simpson’s report at Exhibit R2T9. We note that Mr Hodgson admitted some breaches in maintenance, and in regard to others, sought to excuse them on the basis that the manufacturers could, and would, permit a margin of error.
We noted in that regard that Mr Hodgson corresponded with officers of Bell Helicopters Pty Ltd (Exhibit A17), Lycoming (Exhibit A18), and others in regard to maintenance. We noted that Exhibit A17 is a chain of emails with several representatives of Bell Helicopters Pty Ltd in October 2009, and in summary, inform Mr Hodgson that Bell cannot provide an extension on items (parts) that are affected by an ASB. Exhibit A18 is a chain of emails with a Regional Manager of Lycoming which indicates it will allow up to 10% variation to align maintenance procedures.
Exhibit A19 relates to an article on maintenance procedures.
We are satisfied from the evidence that Mr Hodgson did not adhere strictly to maintenance requirements for his helicopters, and that this is a serious issue in the safety of air navigation. We are mindful that he has had no further breaches recorded, and no opportunity of proving himself compliant in that area because he has not been flying commercially.
Conducting flying training without having a current standardisation and proficiency check flight
We have already noted above that Mr Hodgson provided flight training in breach of his AOC because he was doing so for over a year without a CFI. CASA also found that Mr Hodgson was conducting flying training without having a current standardisation and proficiency check flight as required by clause 11.6 of CAO 40.3.7. He did not deny that. However, in response to paragraph 72 of Attachment A to the Respondent’s Statement of Facts and Contentions, Mr Hodgson said that he was in breach for only four months as the period was February 2006 to June 2007. (Exhibit A20).
When we questioned Mr Hodgson about how all that would operate in the future if he were permitted approval to provide conversion training, he was unable to satisfy us to the requisite standard that he would have the standardisation and proficiency check sufficiently set up. That is because Mr Hodgson is the sole director of Helicopters Pty Ltd which has no assets and owns no helicopters, and he has not passed the requisite tests to become a CFI. Mr Hodgson told us that he would ask a friend to carry out checking for him. That was simply Mr Hodgson’s assertion, perhaps made in good faith, but there was no evidence of either a written or oral agreement before us in that regard. Accordingly we cannot be satisfied that a sufficient and satisfactory arrangement is in place.
REFERENCES
Mr Hodgson tendered a number of references. In the T-documents were references from Grant Johnson, Peter Butler, Richard Green, Trevor Breed and Robert Bell. Andrew Fraser’s reference was Exhibit A15, and Scott Tavner’s, Exhibit A16. Mr Green also gave oral evidence.
Richard Green whose statement was dated 5 October 2010, retired computer science engineer and company chairman, stated that he operates his own private twin turbine helicopter which he and his wife use for extended wilderness photography missions. He stated that he has known Mr Hodgson for 15 years, has flown with other helicopter instructors as well as Mr Hodgson and has found the latter to be one of the best. His view was that the misdemeanors that Brett is accused of are at worst technical breaches of the Regulations …
In his oral evidence, Mr Green informed us that Mr Hodgson taught Mrs Green to fly helicopters and he endorses the use of DVDs and other methods which Mr Hodgson says he uses to instruct mature age students.
Grant Johnson, Chief Pilot, Forests NSW, wrote on 30 September 2010 that he has known Mr Hodgson both professionally and personally since 1987. He indicated that Mr Hodgson was a particularly studious student and was extremely diligent in his studies, gaining his commercial pilot’s licence in 1989. He stated that he had little contact with Mr Hodgson after 1999 but reported hearing that Mr Hodgson was running a good flying school.
Peter Mark Butler, OAM, RFD, a lawyer wrote on 1 October 2010 in support of Mr Hodgson, stating that he had been a student helicopter pilot of the Applicant’s from February 2007 to January 2009. He praised Mr Hodgson’s training.
Trevor Breed, Director of Kareela Aviation for 30 years, who is also a Licensed Aircraft Maintenance Engineer, wrote on 5 October 2010, stating that he has known Mr Hodgson for 15 years. He stated that he had maintained some of Mr Hodgson’s helicopters, and that the Applicant had also worked under his supervision in maintaining those. He stated that he found Mr Hodgson to be an honest, responsible, reliable and trustworthy person.
Robert Bell, retired police officer and aviation photographer and journalist, wrote on 5 October 2010 in support of Mr Hodgson. He stated that he had had access to Mr Hodgson’s helicopters for photographic purposes, knew his family, and found him to be a very trustworthy and truthful person who at all times tries to do the right thing.
Andrew Fraser (Exhibit A15), who undertook helicopter instruction from Mr Hodgson, wrote on 8 November 2011 that he has known Mr Hodgson since June 2006, and has found him to have acted in a most professional manner. He said that after transfer to Aerowasp Pty Ltd (due to Mr Hodgson’s inability to continue instructing), he found the training provided there to be of a similar standard to that provided by Mr Hodgson.
Scott Tavner (Exhibit A16), who was also a student of the Applicant, wrote on 4 November 2011. He addressed the issues of pre-flight briefings, the use of a training video, and others of Mr Hodgson’s issues which have been the subject of criticism by CASA. Mr Tavner expressed satisfaction with Mr Hodgson’s training, and purchased a share of the helicopter in which he was being trained.
It is clear from the above that the references Mr Hodgson has given us speak positively of him as a person and an instructor. One would expect that. However, whilst they are of interest, the opinions of those persons do not act to change our minds in the matters we have decided, and which have been discussed above.
CONCLUSIONS
In summary, in deciding that the correct or preferable decision is to affirm the decision of CASA not to provide approval to Mr Hodgson for conversion training, we find that Mr Hodgson:
Knew by the end of 2007, and if not then, definitively by 4 February 2008, that Mr Anderson had resigned as the CFI of Helicopters Pty Ltd;
Provided flight training in breach of civil aviation legislation without having a CFI in 2008 to early 2009;
Was in breach of regulations regarding maintenance of his helicopters at various times from 2007;
Was in breach of regulations in conducting flying training without having a current standardisation and proficiency check 2006/7;
Whilst admitting to the above, demonstrated a lack of insight by arguing the detail surrounding the above mentioned breaches;
Does not presently hold the necessary approvals as a flying instructor to qualify for conversion approval, and does not fall within the exceptions in order for the discretion to be exercised to permit him to obtain the approval without instructor approvals.
We are mindful that with his current restrictions, which leave him with only a Commercial Pilot Licence (with conditions), which we are not, on the basis of the evidence before us, minded to amend, Mr Hodgson may not be able to fully demonstrate a record as a compliant commercial pilot in order to re-establish his credentials as a flying instructor and testing officer. We feel however, that by 30 June 2012, CASA may look more favourably on any further application Mr Hodgson may make following that period.
DECISION
The Tribunal affirms the decision under review.
I certify that the 87 preceding paragraphs are a true copy of the reasons for the decision herein of, Senior Member Ms G Ettinger, and Air Vice Marshal F Cox, AO, (Retd), Member.
Signed: ............................[sgd]..............................................
Associate
Dates of Hearing7 & 8 & 9 November 2011
Date of Decision 22 November 2011
The Applicant Mr B Hodgson, self represented
Respondent’s Counsel Mr B ShieldsRespondent’s Solicitor Ms G Bennett, Civil Aviation Safety Authority, Legal Services Group
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