Jones and Civil Aviation Safety Authority
[2022] AATA 4407
•20 December 2022
Jones and Civil Aviation Safety Authority [2022] AATA 4407 (20 December 2022)
Division:GENERAL DIVISION
File Number: 2022/2261
Re:Lachlan Sidney Jones
APPLICANT
AndCivil Aviation Safety Authority
RESPONDENT
Decision
Tribunal:Deputy President R I Hanger, AM KC
Date:20 December 2022
Place:Brisbane
Pursuant to subsection 43(1) of Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal sets aside the reviewable decision and, in its place, substitutes its own decision that:
1. The applicant’s flight crew licenses be reinstated.
2. That the following conditions be imposed on the applicant’s flight crew licenses:
(a) for twelve months the applicant is limited to the conduct of aerial agricultural operations as pilot in command in which no passengers or other flight crew are to be carried. These operations are to be conducted only under the civil aviation authorisations held by Namoi Valley Propriety Limited (ABN 69 646 364 329);
(b) notwithstanding paragraph 2(a) above, the applicant may conduct private flights as pilot in command if those flights are necessary for the operation of the business of Namoi Valley Aviation Pty Limited. No passengers or additional flight crew members may be carried on any such flight;
(c) for a period of twelve months
(i)the applicant is to undergo counselling sessions with Tim Watson Munro, or another psychologist approved by the respondent, at a frequency and in a manner determined by Mr Watson Munro, but at least once a month;
(ii)the applicant is to undergo mentoring sessions with Mr Barry Foster at a frequency and in a manner determined by Mr Foster but at least once every two months.
3. While the applicant undergoes counselling and mentoring sessions referred to in paragraph 2(c) above, the applicant is to ensure that Mr Foster and Mr Watson Munro provide a report to the respondent at the end of three months and at the end of six months, and at the end of 12 months, as to the applicant’s progress and such reports are to contain an opinion as to whether the applicant has fully participated in the counselling/mentoring process, and is a fit and proper person to be the holder of unconditional licenses.
.......................[SGD].................................................
Deputy President R I Hanger, AM KC
Catchwords
Civil Aviation – cancellation of applicant’s - aeroplane category (CPL), commercial pilot License – helicopter category (CPL(H), private pilot license – aeroplane category (PPL) and recreational pilot License (RPL) – whether applicant failed in his duty with respect to matter/s affecting the safe navigation/ operation of an aircraft - whether applicant fit and proper person – two incidents involving an aircraft – applicant’s conduct – await final submissions – exiting orders remain in force.
Legislation
Civil Aviation Act 1988 (Cth)
Cases
Pantovic v CASA [2015] AATA 992
R v Jones [2019] QDC 79Secondary Materials
Civil Aviation Regulations 1988 (Cth)
REASONS FOR DECISION
Deputy President R I Hanger, AM QC
20 December 2022
The Applicant seeks review of a decision of the Respondent to cancel his Commercial Pilot License – Aeroplane Category (CPL), Commercial Pilot License – Helicopter Category (CPL(H), Private Pilot License – Aeroplane Category (PPL) and Recreational Pilot License (RPL) held by the Applicant[1].
[1] Exhibit 1, s37 T Documents (‘T Documents’), T3, ‘REVIEWABLE DECISION: Notice of decision to cancel commercial pilot licence – aeroplane category, commercial pilot licence – helicopter category, private pilot licence – aeroplane category and recreational pilot licence ARN 765727’ dated 11 March 2022. pages 11-39.
Legislation
Regulation 269 of Civil Aviation Regulations 1988 (Cth) (‘Regulations’) provides so far as is relevant as follows:
(1)Subject to this regulation, CASA may, by notice in writing served on the holder of an approval, authority, certificate or license (an authorisation), vary, suspend or cancel the authorisation if CASA is satisfied that one or more of the following grounds exist, namely:
………..
(c)that the holder of the authorisation has failed in his or her duty with respect to any matter affecting the safe navigation or operation of an aircraft;
(d)that the holder of the authorisation is not a fit and proper person to have the responsibilities and exercise and perform the functions and duties of a holder of such an authorisation;
….
Section 9A of Civil Aviation Act 1988 (Cth) (‘the Act’) provides as follows:
(1)In exercising its powers and performing its functions, CASA must regard the safety of air navigation as the most important consideration.
(2)Subject to subsection 1, CASA must exercise its powers and perform its functions in a manner that ensures that, as far as is practicable, the environment is protected from:
a)the effects of the operation and use of aircraft; and
b)the effects associated with the operation and use of aircraft.
(3)Subject to subsection 1, in developing and promulgating aviation safety standards under paragraph 9 (1) (c), CASA must:
(a)consider the economic and cost impact on individuals, businesses and the community of the standards; and
(b)take into account the differing risks associated with different industry sectors.
Issues
The matters for determination before me are:
(a)whether the Applicant failed in his duty with respect to any matter or matters affecting the safe navigation or operation of an aircraft;
(b)whether the Applicant is a ‘fit and proper person’[2] to have responsibilities and exercise and perform the function and duties of the holder of the authorisations that he holds; and
(c)whether the correct and preferable decision is to affirm, vary or set aside the reviewable decision having regard to the safety of air navigation as the most important consideration pursuant to section 9A of the Act.
[2] Regulation 269(1)(d) of Civil Aviation Regulations 1988 (Cth).
The Respondent essentially bases its case on three matters. The Applicant was involved in two serious incidents (Incidents on 9 January 2021 and 12 October 2020) in which the aircraft he was flying suffered serious damage. The third matter relates to his integrity. I will deal with each of these in turn.
Background
The Applicant
Mr Jones (‘the Applicant’) was born in 1990. He obtained a private pilot license in May 2009. He subsequently went to United States of America where he obtained a United States commercial pilot licence.
He returned to Australia in 2013 and commenced agricultural flying training. He passed that in 2014 and continued agricultural flight operations in the United States. Subsequently he flew in Australia but did not convert his United States commercial pilot license to an Australian commercial pilot licence He was charged and convicted[3] for conducting flight operations without holding the required Australian authorisations and with making a false statement.
[3] Exhibit 27, R v Jones [2019] QDC 79.
He subsequently obtained a private pilot license and an Australian commercial license
He has now accumulated over 6400 flight hours and most of his flying is in aerial agricultural operations. That is well known as a dangerous occupation which requires high skill in the pilot.
His family has a long history in agricultural flying operations and it is worth mentioning at this point that he says that as a child he was within the family environment indoctrinated to a certain extent to be afraid of the respondent. I accept that evidence from him.
However, I should also add that I’m satisfied that nothing that the Respondent or any person acting on its behalf did in its investigations into this matter, or conduct in these proceedings, was other than proper. It was suggested that Mr Kidston who is conducting the investigation had a conversation to the effect that he was ‘out to get him’.[4] I don’t accept that suggestion. Mr Kidston denied the suggestion and took notes at all times and presented as a completely fair and honest witness.
[4] Transcript dated 19 August 2022, page 340.
Incident in Aircraft VH-ROK on 12 October 2020
It is common ground that on 12 October 2020 the Applicant was involved in an incident in aircraft VH-ROK.[5] That plane is an amateur built F1 Rocket. It is very powerful.
[5] Exhibit 1, T Documents, T11-T31, ‘EICMS Case Note Conversation with Glen Shaw’ dated 5 November 2020, pages 105-269 and Exhibit 4, ‘Respondent’s Statement of Facts, Issues and Contentions dated 11 August 2022’, page 24, at [99](a).
The Respondent alleged that the incident occurred during take-off from a taxiway at Dalby Airport, an uncertified/uncontrolled aerodrome. The Applicant claims that the incident occurred during a landing. The evidence before me indicated that the incident occurred as an event during landing. The applicant gave evidence that in landing after he had touched down, he suffered a failure of one of the brakes which caused the aircraft while on the runway to veer to the right. The aircraft thus became pointed at an oblique angle to the runway. He says he was faced with two choices. He could power down and let the aircraft go into what is described as a “ground loop”[6] or he could apply power and take off.
[6] Ibid, T19, page 140.
According to the evidence of Mr Gregory[7], a very experienced pilot, and Flying Operations Inspector with the Respondent, a ground loop is an uncontrolled turn in an aircraft during ground operations that may occur during taxi, take-off, or during the landing. Ground loops begin with a swerve that is allowed to continue for too long. This may be the result of a sideload on landing, taxiing with too much ground speed, an overcorrection by the pilot, or an uneven ground surface. He says that due to the inbuilt instability of the tail wheel design of an aircraft such as the applicant was flying, a ground loop can result in forces great enough to cause a wing tip to strike the ground.
[7] Exhibit 1, T Documents, T28, ‘Statement of Ian Edward Gregory’ dated June 2021, pages 252-257.
The Applicant said that rather than risk a ground loop he decided to apply power to stop the loop and to take off. In doing that and in successfully getting the plane off the ground he utilised the taxiway as distinct from the runway and before gaining height struck star pickets which did some damage to the aircraft. The procedure also damaged some runway lights.
According to Mr Gregory, the decision of the pilot to power up the aircraft and accelerate on the taxiway, instead of powering down to idle and allowing the aircraft to ground loop, complicated the situation rather than helped it. He said that the Applicant’s actions introduced significantly greater risk of damage to the aircraft and injury to the pilot and others than if he had allowed the aircraft to ground loop. By accelerating along the taxiway, the applicant was taking off in the direction of trees and a fuel installation and greatly increased the chances of impacting heavily with fixed objects.
Mr Gregory considered the actions of the pilot to be unreasonable and inappropriate in the circumstances.
Mr Foster gave evidence for the Applicant[8]. He is a very experienced commercial pilot by occupation and has conducted annual proficiency checks on the Applicant for a few years. Those assess his skill and competence as an agricultural pilot. He was asked to comment on how the Applicant chose to deal with the experience on the Dalby airport. He said that whether or not one went into a ground loop or applied power to get out of it is a split-second decision and that the application of full power is an option that is open.[9]
[8] Exhibit 6, ‘Statement of Mr B Foster dated 30 June 2022’.
[9] Transcript of 17 August 2022, page 191.
In cross-examination it was suggested to Mr Foster that the safest and most appropriate course of action was to power down and allow the ground loop to proceed. He said, “I’d come back to say I wouldn’t answer that for the simple reason I’m not sitting in the aeroplane.”[10]
[10] Transcript of 17 August 2022, page 199.
In considering the evidence, I am not satisfied that there was negligent or careless navigation of the aircraft. The Applicant was faced with what lawyers generally know is a decision that had to be made in the agony of the moment. In hindsight, the decision made by the applicant may not have been the best decision in the circumstances but that does not establish negligence or unfitness to continue flying.
Incident on 9 January 2021 in VH-COX
The Applicant was carrying out aerial agricultural operations at Gunnedah while employed by Middlebrook Air Operations. He says he experienced a bird strike which in turn caused a tree strike. The tree strike resulted in loss of the starboard wing tip. Dramatic as that may sound the evidence established that this kind of plane has a wingtip measuring about half a metre which is sacrificial. The tip of the wing is designed to shear off cleanly half a metre from the end without rendering the aircraft unairworthy. The evidence established that bird strikes are very common and that tree strikes also occur in the kind of work that the Applicant was performing. He said that this event occurred near the end of his flight and that he was not aware of any difference in the handling of the aircraft. I am not satisfied and indeed it is not urged by the Respondent that there was negligence or unsafe operation of the aircraft in respect of this incident.[11]
[11] Exhibit 1, T32-T66, pages 270-590.
The pilot was able to safely land the aircraft.
The behaviour of the applicant on the ground
Incident on 12 October 2020
While taking off, the aircraft struck several metal star pickets embedded in the ground. After the Applicant landed the aircraft, he filed a report with ATSB as he was required to do but did not refer to the star pickets and said that he had clipped some trees causing minor damage to the aircraft. When later questioned by the Respondent, as to whether he was aware that the aircraft did not clip trees and that it had sustained major rather minor damage at the time of the incident, his solicitor Mr Maitland replied:
“… It was not until late that afternoon or early the following morning when Lachlan was closely assessing everything that he realised it was three star pickets and not trees. Lachlan was unable to find anywhere on the ATSB website that allowed him to edit the initial report and correct the error. The report was started within 20 minutes of the incident and completed approximately 45 minutes after the incident. At the time when filling out the report Lachlan was aware of the damage to the tail but not to the belly. Lachlan was initially informed that that it was not major damage and easily repaired. Upon further inspection later that afternoon Lachlan realised the damage to the aircraft was more extensive than first thought”.
The Respondent asserts that the report was misleading in that the aircraft clipped star pickets rather than trees and that the damage was not minor. The star pickets tore holes in the fuselage and the horizontal stabiliser.
The Applicant’s evidence was that he wrote that he had hit some trees because that is what his colleague Josh had said. In writing his report[12], the Applicant did not try to go back and inspect the scene of the impact with the star pickets. He should have done so. As to the report referring to minor damage, the Applicant says that Josh had also advised him that the damage was minor. The Applicant says that it was only later that he was told that it was major.
[12] Transcript of 16 August 2022, page 90.
Before completing his report concerning the impact I’m satisfied that the Applicant should have ascertained that the damage was major and should have ascertained that he had collided with the star pickets. A careful inspection of the aircraft and of the star picket area was all that was needed.
I am also satisfied that having learned of his errors in his report to the ATSB the Applicant could have easily corrected his error by email to that body. He should have done so.
The incident of 9 January 2021
The evidence of the applicant was that he believed he had hit birds. He says that he landed almost straight after the incident not having noticed that the plane had lost its sacrificial wing tip. In cross-examination he accepted that he did not get out of the aircraft after landing to ascertain the extent of the damage.
He took on another load of chemicals and it was on this second flight of the day with a weight increase that he noticed that the aircraft was handling somewhat differently. Despite the observed handling characteristics, he did not land but carried on to finish the load. Having landed after the second flight, he alighted and inspected the aircraft[13] and that is when he observed that he had lost a wingtip.
[13] Transcript of 16 August 2022, page 28, lines 25-26.
It was suggested to the applicant in cross-examination that he was prepared to undertake a third flight. He did not accept that. However the evidence of Mr Forgione[14] and Mr Bishop[15] whom I accept, indicates that he was preparing for a third flight. That is not a matter of great importance. The point is that the applicant should have got out of the plane and inspected the damage that occurred at the end of his first flight. He says it was a bird strike but in truth he had hit a tree and lost a wingtip. The photographs of the wingtip[16] were in evidence and while it is hard to believe that he did not know that he had lost his wingtip, it is clear that what he describes as an impact with the birds must have been substantial. Indeed, his employer, Mr Middlebrook certainly was of the opinion when he inspected the damage that it was not the result of a bird strike.
[14] Exhibit 1, T Documents, T37, ‘Statement of Nathan John Forgione’ dated 24 March 2021, pages 377-381.
[15] Ibid, T38, ‘Statement of Ashley Jordan Bishop’ dated 24 March 2021, pages 382-386.
[16] Exhibits 19, ‘Photo of an airplane wing tip’ and 23, ‘Wing group’.
Therefore, having sustained a significant impact he should certainly have inspected the aircraft when he landed immediately after the impact even if as he said he didn’t notice that it handled differently. Furthermore having taken off on his second flight when he did realize that the aircraft was handling differently, he should have landed to inspect (even if that meant disposing of his load if necessary) and he should not have persisted with an intended third flight which was cancelled before take-off for other reasons.
The Applicant lied to a fellow employee about what had happened and then lied to his employer, Mr Middlebrook and deliberately led him on a wild goose chase to attempt to find the missing wingtip, after he himself had retrieved it. Mr Middlebrook found the tree with which he had the collided and the applicant subsequently admitted that he had hit the tree and was advised that he should therefore change an earlier statement he had made to ATSB.[17]
[17] Exhibit 4, ‘Respondent’s Statement of Facts, Issues and Contentions (‘SFIC’) dated 11 August 2022’, page 5, at [27].
He did that but admitted in cross-examination that that statement is also not correct[18].
[18] Transcript of 16 August 2022, page 74, line 15.
On board the aircraft that the applicant was flying was an iPad that has the task of recording GPS data of flights. The Applicant sought to delete either all of that or some of that with a view to misleading his employer.
There are a number of other incidents demonstrating a lack of integrity on the part of the applicant. Indeed even in the week or so prior to the trial he had to be prompted to frankly deal with the true facts. On his behalf it is submitted that he has always had a fear of the respondent. That fear began in childhood when his father who was also involved in a similar business used to tell the children to disappear when representatives of the Respondent came to see him.
In respect of the two flying incidents involved in these proceedings, he was aware that he already had a conviction for dishonesty and hence believed he would be in trouble with the respondent in respect of those incidents.
While his fear of the respondent is understandable, it in no way justifies his or anybody else’s dishonesty. When the relevant body is conducting an investigation, it is simply carrying out its statutory obligation and there is no excuse for not cooperating with it in its investigations.
There are three aspects to the conduct of the Applicant.
The first relates to his flying ability. He has flown for something exceeding 6000 hours, a significant amount of that being aerial agricultural flying which is inherently dangerous. He is obviously a skilled pilot and so much is conceded by the respondent. The second aspect concerns his failure to take care for his own safety and possibly others while on the ground by failing to inspect and ground the aircraft after having collided with something. The third aspect concerns his lack of integrity.
The Applicant called evidence in respect to the second and third aspects referred to above. Counsel very wisely conceded his lack of integrity and dealt with it in evidence.
Two witnesses were called by the Applicant in relation to the second and third aspects.
Mr Foster[19] is an examiner of airmen and a Grade 1 instructor. He has held a commercial pilot licence for 47 years and has 25,000 hours of flight time. He has an excellent safety compliance record with the Respondent. He was asked to conduct an assessment of the applicant in regard to his attitude toward safety and compliance in addition to his Aerial Application Rating Proficiency Check on 26 May 2022.
[19] Exhibit 6, Statement of Mr B Foster dated 30 June 2022.
Since that date the Applicant has successfully completed a Helicopter Low Level Flight Review and an Aircraft Night VMC Flight Review. When asked why he was completing so many check flights, his response was that he thought that was a good way to maintain his flying skills and to keep up-to-date with the new requirements because it required him to do some study to complete the tests.
Mr Foster said that in talking to the applicant he found that his attitude had changed since the previous time that he had conducted a test with him. He regarded him as more mature and as having the increased responsibility of running his own business. He said that the applicant was now going “above and beyond to make sure he complies with all the regulations and safety standards”.[20] The Applicant told him that he had appreciated the errors he had made and had learnt from them. Mr Foster said that in his opinion the Applicant’s departure from the proper standards was an aberration. He does not think that the Applicant has a lack of appreciation for standards and safety compliance required by a commercial pilot and operator.
[20] Transcript of 17 August 2022, page 212, line 39.
The applicant purchased from his former employer the business of Middlebrook Agricultural Operations and Mr Middlebrook is working as his chief pilot. The Applicant and his partner have also purchased Tabavuli Pty Ltd which holds a current Agricultural AOC. The chief pilot of that organisation is Mr Peter Jones who is very well respected in the industry and in his years as being chief pilot for Jones Air was known to have run a very tight ship with a very high safety standard.
In the course of his evidence, Mr Foster said that he had discussed the Applicant’s conduct with him and told him that he had to work with CASA and not treat CASA “…as the other side sort of thing”[21]. The Applicant agreed that that’s what he wanted to do. In relation to the questions posed in Pantovic v CASA[22], Mr Foster said:
“I have found Lachlan to have a changed attitude toward his flying and the aviation compliance regulations… Lachlan is going above and beyond to make sure he complies with all the regulations and safety standards.”[23]
[21] Transcript of 17 August 2022, page 191, line 28.
[22] Pantovic and Civil Aviation Safety Authority [2015] AATA 992 (‘Pantovic and CASA’).
[23] Exhibit 6, ‘Statement of Mr B Foster dated 30 June 2022’, page 3.
He also says, “in talking to Lachlan, I have found Lachlan’s attitude has changed since the last time I conducted an APC with him… He has become a more mature person with the increased responsibility of running his own business”.[24]
[24] Ibid, page 2.
Mr Watson-Munro is a very experienced consultant psychologist. He provided a report[25] after interview and psychological assessment of the Applicant. By way of background it should be said that he was considering what he described as the primary basis upon which the Respondent had determined to cancel a licence as being, “a contumelious disregard for the fundamental requirements prescribed by the aviation regulatory regime to ensure the safe conduct of air operations”.[26] He referred to the two incidents. I note that the version of events given to him by the Applicant was not entirely accurate. He notes that since the behaviour in question, the Applicant had completed a Multi-Engine Aircraft Endorsement +2 Annual Proficiency and Low-Level flight checks had had since flown 1140 hours without incident.[27]
[25] Exhibit 7, ‘Statement of Mr T Watson-Munro dated 5 July 2022’.
[26] Ibid, page 2.
[27] Ibid, n27, page 6.
He concludes as follows:
“From the perspective of a psychologist, it is apparent that Mr Foster’s observations of a changed attitude by Mr Jones concur with my own. In other words, he has developed a greater insight into his responsibilities, has matured and has expressed both remorse and a willingness to abide by rules and regulations in a more diligent fashion in the future. It does not appear that Mr Foster is of the view that Mr Jones represents a danger to the public in terms of his flying. It is also apparent from my observations that the acquisition of the business, his marriage and the significant financial issues attendant on this have further reinforced Mr Jones’s insight and maturity.”[28]
[28] Ibid, page 9.
Mr Watson-Munro did not detect any underlying or symptomatic lack of appreciation of the proper standards required of Mr Jones as a commercial agricultural pilot. He ‘opines that the Applicant has the intelligence and insight to appreciate his errors and to learn from his mistakes as per point b. of Pantovic’[29].
[29] Referring to Pantovic and Civil Aviation Safety Authority [2015] AATA 992. Exhibit 7, ‘Statement of Mr T Watson-Munro dated 5 July 2022’, page 11.
He says that the Applicant has learned his lesson:
“ He has found the current proceedings difficult to negotiate but notwithstanding this and the uncertainty regarding his future capacity to operate aircraft, he has maintained the business and moved forward as best he can in terms of having his flying checked, managing his business and embracing his financial responsibilities referable to this and his family……..Mr Jones fully comprehends the consequences of any future lapses of judgement and appears to be highly motivated to ensure that this does not occur.
Mr Jones’s departure from proper standards, taking all factors into account, is viewed as an aberration, rather than reflecting an underlying or symptomatic lack of appreciation of the proper standards required of him, particularly in relation to compliance and safety. I state this on the basis of his maturation, my discussions with him on several occasions, an analysis of the documentation and in particular the view of Mr Barry Foster. From a psychological perspective he is an intelligent man, who has developed a better insight into the dynamics surrounding his past behaviour, and attended to this, has expressed a strong desire for this not to re-occur. He is also well supported by his wife in the business and I anticipate that if given the opportunity to maintain his pilot’s licence the risk of lapses such as these in the future is low.”[30]
[30] Ibid, page 12.
Unfortunately as I mentioned earlier in this Reasons for Decision, the Applicant was not entirely frank with the psychologist resulting in his report of 5 July 2022. Mr Watson Munro saw him again on 8 August 2022 at the behest of Counsel. On that day the Applicant provided a more accurate version of the events in issue. Mr Watson Munro said that although it was very late in the day the late disclosure does reflect some maturation and insight into the seriousness of his conduct and a desire to deal with the underlying problems.[31] He observed that ‘quite often people minimise and deny and cannot accept their behaviour and discuss it frankly’.[32] Until that is done they cannot move forward.
[31] Transcript of 18 August 2022, pages 228-229, lines 48-47 and 1-5.
[32] Ibid, page 230, line 32.
The problem in this matter is that even at this late stage his version of events was not entirely truthful because he did not tell the psychologist that he had completed his second crop spraying exercise knowing that the aircraft was damaged.
Mr Watson Munro takes into account that his conduct should be considered against the backdrop of marrying, acquiring a business and acquiring a debt of $4 million and facing a bleak future if his appeal is unsuccessful. In that situation people by way of a defence mechanism often engage in minimisation denial and obfuscation. He expresses the opinion that the Applicant has matured and understands that there are people in his life that rely upon him. He has a wife and a desire for a family. If he is unable to work he believes that he will inevitably be declared bankrupt. That carries a separate raft of problems for him into the future. Mr Watson Munro says that these life developments are positive protective indicators against future misconduct and that he is now at a fork in the road and it would be unwise to leave him there. He describes him as, “a work in progress”.[33]
[33] Transcript of 18 August 2022, page 233, line 18.
If his appeal is successful he suggests fortnightly counselling with himself.[34]
[34] Ibid, page 235, lines 5-14.
In cross-examination[35] the witness was asked:
“if it is ultimately found by this tribunal that he continues not to tell the truth in one or more respects would that tend to suggest that your assessment of him now that he’s finally got it all off his plate and he’s finally being honest would be incorrect?---- Well, if he’s been demonstrated to be lying, still of course it would not be entirely correct. It would suggest that there is continuing obfuscation to an extent, but I would need to know more particulars I think in the analysis of specific evidence, but in general principles, yes.”
[35] Transcript of 18 August 2022, page 240, lines 33-40.
I observed Mr Jones in the witness box. He is undoubtedly an intelligent man and so much was verified by Mr Watson Munro. Since the incidents in question, he has continued to refine his flying skills and knowledge of relevant rules and regulations. He indicated a responsible attitude to running his new business and I’m satisfied that he has learned from his errors.
Conclusion
The Applicant’s skill in flying is undoubted.
The Applicant’s conduct on the ground was foolhardy. In respect of the incident on
12 October 2020 he possibly made the wrong decision to take off rather than go around but I make no finding in respect of that. It was an agony of the moment decision. After landing, he failed to adequately inspect both the damage to the aircraft and the star pickets with which he collided. He should have.
In relation to the incident in 9 January 2021 he should have alighted and inspected the damage, ascertained that the tip of his wing was missing and not taken off again. Once airborne and detecting the aircraft handling differently he should have landed. I am unable to say whether he should or should not have jettisoned his load. He should not have completed the second aerial spraying flight or prepared for a third.
His integrity is open to serious question. He has been convicted of an offence involving dishonesty and his attitude to his employer and a fellow employee and CASA involved dishonest statements. Dishonesty in events in which CASA is involved must be taken very seriously.
Mr Watson Munro describes him as a work in progress in terms of his integrity. I was impressed by the evidence of Mr Watson Munro. I propose to accept the suggestion of
Mr Watson Munro and give the applicant a chance. I propose to let him retain his license to enable him to work. That is the correct or preferable decision.
In deciding whether he is a ‘fit and proper person’[36] to hold a licence, I take into account his undoubted skill in flying which I regard as paramount. I am satisfied that as to his behaviour on the ground he has learned from his errors; I take into account that his conduct in failing to inspect the aircraft after damaging it, and continuing to fly knowing that it was damaged, while wrongful, affected his own safety and not that of others.
[36] Regulation 269(1)(d) of Civil Aviation Regulations 1988 (Cth).
I take into account the fact that the Applicant has now bought a business involving significant financial obligations and has a supportive wife working with him hoping to start a family. That is relevant insofar as it gives me confidence that he has and will adopt a more responsible attitude to his work.
The Applicant handed up proposed orders in the following terms:
“…
(1)The decision the subject of the Application for review is set aside.
(2)In lieu thereof the Applicant’s flight crew licenses are reinstated subject to the condition that the Applicant undertake counselling with Mr Tim Watson Munro and mentoring with Mr Barry Foster (the counsellor) for a period of one year from the date of this order on a frequency and in a manner as directed by the counsellors.
(3)The counsellors are to report to the respondent at six monthly intervals as to their level of satisfaction with the Applicant’s participation in the counselling or mentoring.
(4)The orders made on stay application are vacated.
…”.[37]
[37] Exhibit 26, ‘Draft Orders lodged on 19 August 2022’.
The Respondent requested the opportunity to make submissions that might properly be imposed should I permit him to continue flying. I acceded to that request.
It is not my function to impose a penalty. However, I am minded to restrict the Applicant from flying for a period of three months given that he has not as yet acknowledged to
Mr Watson Munro the full truth about the events in question. He needs to sit and think about and discuss in his fortnightly sessions with Mr Watson Munro issues concerning integrity and with Mr Foster the need for safety not just in the air but also on the ground, as well as his attitude to the Respondent.
I would also be prepared to consider a condition of some kind that he does not carry passengers.
After delivering the reasoning above, I heard further submissions on 7 December 2022.
I do not propose to suspend the applicant’s flight crew licenses because that would be to impose a penalty on him which is not within jurisdiction. The applicant has submitted a draft order relating to mentoring, psychological treatment and limiting for a period of unspecified time various rights of the applicant in relation to flying. The respondent submits that there should be conditions imposed on the applicant’s flight crew licenses for 12 months. The applicant submitted that the period should be six months but on a previous occasion had submitted that it should be for 12 months. I’m satisfied the 12 months is appropriate.
I have also considered the issue of deterrence of others who might seek to mislead regulators. I consider that the costs associated with these proceedings, both legal and otherwise, amount to a specific and general deterrence to others who might be inclined to fail in their responsibilities as holder of a licence.
The orders which I make are as follows:
Pursuant to subsection 43(1) of Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal sets aside the reviewable decision and, in its place, substitutes its own decision that:
1. The applicant’s flight crew licenses be reinstated.
2. That the following conditions be imposed on the applicant’s flight crew licenses:
(d) for twelve months the applicant is limited to the conduct of aerial agricultural operations as pilot in command in which no passengers or other flight crew are to be carried. These operations are to be conducted only under the civil aviation authorisations held by Namoi Valley Propriety Limited (ABN 69 646 364 329);
(e) notwithstanding paragraph 2(a) above, the applicant may conduct private flights as pilot in command if those flights are necessary for the operation of the business of Namoi Valley Aviation Pty Limited. No passengers or additional flight crew members may be carried on any such flight;
(f) for a period of twelve months
(iii)the applicant is to undergo counselling sessions with Tim Watson Munro, or another psychologist approved by the respondent, at a frequency and in a manner determined by Mr Watson Munro, but at least once a month;
(iv)the applicant is to undergo mentoring sessions with Mr Barry Foster at a frequency and in a manner determined by Mr Foster but at least once every two months.
3. While the applicant undergoes counselling and mentoring sessions referred to in paragraph 2(c) above, the applicant is to ensure that Mr Foster and Mr Watson Munro provide a report to the respondent at the end of three months and at the end of six months, and at the end of 12 months, as to the applicant’s progress and such reports are to contain an opinion as to whether the applicant has fully participated in the counselling/mentoring process, and is a fit and proper person to be the holder of unconditional licenses.
I certify that the preceding 73 (seventy-three) paragraphs are a true copy of the reasons for the decision herein of Deputy President R I Hanger, AM QC
..................[SGD]......................................................
Associate
Dated: 20 December 2022
Dates of hearing: 16 to 19 August 2022 and 7 December 2022 Date final submissions received: 7 December 2022 Counsel for the Applicant: John A Ribbands Solicitors for the Applicant: John Maitland (Maitland Lawyers) Counsel for the Respondent: Mark Eade Solicitors for the Respondent: Carol Swain (Civil Aviation Safety Authority)
0
2
0