Mark Sullivan and Civil Aviation Safety Authority
[2013] AATA 425
[2013] AATA 425
Division GENERAL ADMINISTRATIVE DIVISION File Number
2012/0792
Re
Mark Sullivan
APPLICANT
And
Civil Aviation Safety Authority
RESPONDENT
DECISION
Tribunal Deputy President P E Hack SC
Date 24 June 2013 Place Brisbane (heard in Darwin) The decision under review is affirmed.
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Deputy President P E Hack SC
CATCHWORDS
CIVIL AVIATION – cancellation of commercial pilot (helicopter) licence – contravention of operations manual – overloaded helicopter – failed in duty with respect to matters affecting safe navigation and operation of aircraft – not fit and proper person – decision under review affirmed
LEGISLATION
Civil Aviation Act 1988 (Cth), ss 9A, 30A
Civil Aviation Regulations 1988 (Cth), regs 269(1)(c), 269(1)(d), 269(1A)CASES
Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321
Briginshaw v Briginshaw (1938) 60 CLR 336
Hughes and Vale Pty Ltd v New South Wales (No 2) (1955) 93 CLR 127
Re Johanson & Civil Aviation Safety Authority [2012] AATA 239Re Taylor and Department of Transport (1978) 1 ALD 312
REASONS FOR DECISION
Deputy President P E Hack SC
24 June 2013Introduction
The applicant, Mr Mark Sullivan, is an experienced helicopter pilot. He has in the order of 11,000 hours flying time in helicopters, including 1,500 hours as pilot in command of a Robinson R-44. On the afternoon of 30 March 2010 Mr Sullivan took off from Flying Fox Station (Flying Fox), Mataranka in the Northern Territory in an R-44 registration VH-HCQ (HCQ) with two passengers, Mr Leslie Smale and Mr Alan Mole. Shortly after take-off HCQ crashed.
The following day Mr Sullivan reported the crash to the Australian Transportation and Safety Bureau (ATSB). He now accepts that the report was knowingly false and misleading, that it had the effect of minimising the seriousness of the crash and minimised the possibility of prompt action by the ATSB including the possibility of a referral to the respondent, the Civil Aviation Safety Authority (CASA) and a timely investigation by CASA. The matter first came to the attention of CASA in early September 2010. It was investigated by Mr Noel Saffery, an investigator in the employ of CASA. Following the investigation CASA took action in the criminal courts of the Northern Territory against Mr Sullivan. Additionally, on 3 January 2012 a delegate of CASA made a decision to cancel Mr Sullivan’s Commercial Pilot (Helicopter) Licence.
Mr Sullivan seeks a review of that decision.
The Legislation
It is sufficient for present purposes to note that s 9A of the Civil Aviation Act 1988 (the Act) requires CASA, and thus this Tribunal in its stead, in exercising its powers and performing its functions, to regard the safety of air navigation as the most important consideration.
The power exercised by CASA in the present case was conferred by reg 269(1) of the Civil Aviation Regulations 1988 (the Regulations). Regulation 269 permits CASA to vary, suspend or cancel a licence, certificate or authority where CASA is satisfied that one or more of the grounds specified in the succeeding paragraphs (a) to (e) exist. Reference to the grounds set out in paragraphs (a), (c) and (d) only is required. Those grounds are:
(a)that the holder of the authorisation has contravened, a provision of the Act or these regulations, including these Regulations as in force by virtue of a law of a State;
…
(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;
CASA’s case is that paragraphs (c) and (d) are engaged, that is, that Mr Sullivan failed in his duty with respect to matters affecting the safe operation of HCQ on 30 March 2010 and that the circumstances of that flight and its aftermath demonstrate that Mr Sullivan is not a fit and proper person to have the responsibilities, and exercise and perform the functions and duties, of a commercial helicopter pilot.
Reference to paragraph (a) is necessary having regard to an argument advanced by Mr Anderson, counsel for Mr Sullivan, about the consequences of the criminal prosecution. That argument requires reference to be made also to reg 269(1A) of the Regulations and s 30A of the Act. The former is in these terms:
(1A)CASA must not cancel an authorisation under subregulation (1) because of a contravention mentioned in paragraph (1)(a) unless:
(a)the holder of the authorisation has been convicted by a court of an offence against a provision of the Act or these Regulations (including these Regulations as in force by virtue of a law of a State) in respect of the contravention; or
(b)the person was charged before a court with an offence against a provision of the Act or these Regulations (including these Regulations as in force by virtue of a law of a State) in respect of the contravention and was found by the court to have committed the offence, but the court did not proceed to convict the person of the offence.
Section 30A provides,
(1)If:
(a)a person is convicted of an offence against this Act or the regulations; and
(b)the person holds a civil aviation authorisation (in this section called the old authorisation); and
(c)the old authorisation authorises the person to undertake a particular activity (in this section called the previously authorised activity); and
(d)the Court considers that it is in the interests of air navigation safety for the person to be excluded from that activity;
the Court may order that the person is to be excluded from that activity for the period specified in the order (in this section called the exclusion period).
Some matters of background
Except where otherwise indicated I do not understand what follows to be in issue.
In late March 2010 Tropical Cyclone Paul had caused considerable damage to Numbulwar, a remote Northern Territory community on the western shores of the Gulf of Carpentaria. The responsible local authority was the Roper Gulf Shire Council, based in Katherine. At that time Mr Smale was the Council’s Regional Manager for Community Safety. Mr Mole was the Service Shire Manager for Numbulwar. Early on the morning of 30 March 2010 responsible officers within the Council were attempting to devise a plan to transport Mr Smale and Mr Mole, together with equipment to deal with the effects of the cyclone, from Katherine to Numbulwar. Katherine is approximately 370 kilometres to the west of Numbulwar. Mr Mole, at least, was aware that local flooding prevented road access to Numbulwar from Katherine.
Mr Sullivan was, either directly or through a corporate entity, the proprietor of Flying Fox and of the helicopter HCQ. Flying Fox was on the Roper Highway roughly halfway between Katherine and Numbulwar and a little to the south of a direct line between those towns. It is relevant to note that to the north east of Flying Fox, on route to Numbulwar, is the township of Roper Bar. Some idea of the distances involved can be gained by reference to the flying times between the four centres in an R-44 which has a normal cruising speed of 100 knots. A trip from Katherine to Flying Fox would take 63 minutes, from Flying Fox to Roper Bar 19 minutes and from Roper Bar to Numbulwar 45 minutes.
Early on 30 March 2010 Mr Sullivan was driving on the Stuart Highway from Darwin to Katherine. Outside Katherine he was telephoned by a representative of the Shire Council and asked if he could fly the Council’s men and equipment to Numbulwar. He was asked to attend a meeting at the Council’s offices in Katherine. He did so.
Mr Smale and Mr Mole and other Council officials were present at the meeting. The Council wanted Mr Smale and Mr Mole, together with an 8kVA portable generator, two chainsaws and associated equipment and the personal effects of Mr Smale and Mr Mole, taken from Katherine to Numbulwar. Mr Sullivan agreed to do so, using HCQ. Council officers purchased the generator and chainsaws in Katherine and they were loaded into Mr Sullivan’s motor vehicle. Mr Sullivan telephoned Flying Fox and arranged for Mr Simon Schloss, a Flying Fox employee and also an R-44 pilot, to fly to Katherine to collect Mr Smale and Mr Mole in HCQ to take them to Flying Fox while Mr Sullivan drove there in his vehicle with the generator and chainsaws and associated equipment.
Mr Sullivan says, but it is put in issue by CASA, that having agreed to undertake the flight to Numbulwar he telephoned his personal assistant at Flying Fox, Ms Anna Parsissons, and asked her to arrange for another employee Brad (his surname did not emerge during the hearing) to drive with two large drums of aviation fuel to Roper Bar against what was then the possibility that it might be necessary to first fly the two men and equipment from Flying Fox to Roper Bar and then re-assess the weather and other conditions and if necessary, refuel HCQ at Roper Bar. Ms Parsissons says that she arranged for Brad to do that and that he left Flying Fox with the fuel prior to the arrival of Mr Sullivan and the return of HCQ. As will appear, there is a contest on the evidence whether Brad was present at Flying Fox when HCQ returned from Katherine and was being prepared for the next flight.
In any event, Mr Sullivan in his vehicle with the equipment, and HCQ with Mr Smale and Mr Mole, arrived at Flying Fox. There is a dispute on the evidence about the order of arrival. Mr Smale said[1] that he was met by Mr Sullivan on their arrival and that he saw the generator and chainsaw on his arrival[2] at Flying Fox. That equipment was brought to Flying Fox by Mr Sullivan so its presence demonstrates his presence. Mr Mole speaks[3] of seeing Mr Sullivan once he and Mr Smale reached Flying Fox. Mr Sullivan’s evidence covers both possibilities. In his witness statement[4] he has Mr Smale and Mr Mole present at Flying Fox (and in the hangar) when he arrived. In his oral evidence[5] he appeared to suggest that he met them on their arrival and, when asked in the course of cross-examination whether HCQ (and thus its passengers Mr Smale and Mr Mole) had arrived from Katherine when he arrived at Flying Fox from Katherine, he was unable to recall[6]. Mr Schloss, in his statement,[7] put the arrivals as virtually simultaneous although in his oral evidence[8] he said that Mr Sullivan had arrived about half an hour after he had arrived in HCQ. Finally Ms Parsissons[9] has Mr Sullivan arriving sometime after HCQ.
[1]Transcript page 33, line 18-19.
[2] Exhibit 8, paragraph 5.
[3]Exhibit 14, paragraph 7.
[4]Exhibit 32, paragraph 33.
[5] Transcript page 167, lines 14-17.
[6] Transcript page 174, lines 21-22
[7]Exhibit 40, paragraph 23.
[8]Transcript page 249, line 27.
[9]Exhibit 42, paragraphs 22-26.
There is considerable controversy about the events thereafter however it seems to be uncontroversial that Mr Sullivan fitted two cargo pods to brackets attached to the skids on HCQ, that some, at least, of the Council’s equipment was stowed on board or in the cargo pods and that two 20 litre jerry cans, empty on Mr Sullivan’s case but likely full on CASA’s case, were loaded in to the cargo pods. The generator, which it is common ground weighed 80 kilograms, was placed in the rear starboard side passenger’s seat immediately behind the pilot’s seat. It was secured by a seat belt. Mr Sullivan says that it was secured, as well, by another strap attached to the seat. For reasons explained below I do not accept that to be the case.
Mr Smale sat in the front passenger seat and Mr Mole in the rear portside seat. On arrival from Katherine HCQ had been positioned in front of, and with its nose towards, a hangar. From that position the wind was coming from behind Mr Sullivan’s right shoulder, around his 5 o’clock position. HCQ, piloted now by Mr Sullivan, performed some manoeuvres which resulted in HCQ moving away from the hangar and facing into the wind for take-off. It is now common ground that HCQ had a take-off weight in excess of the manufacturer’s maximum take-off weight of 1089 kilograms. Mr Sullivan says that he was not aware of that at the time having, he says, calculated, and recorded, a take-off weight of 1060 kilograms.
HCQ took off into the wind and according to Mr Sullivan, gained “translational lift” after 20 or 30 metres. Translational lift is the consequence of air moving across the disc once forward speed is achieved. It has the effect of reducing induced flow and thus increasing rotor thrust. Mr Sullivan then says that at around 15 feet HCQ was hit from behind by a very strong gust of wind which reduced the airspeed and caused the helicopter to sink. He says that he lost translational lift as a result and that he then looked for a place to run HCQ onto the ground, that is, to slide to a standstill on its skids. He succeeded in doing so but the starboard skid clipped a fence post and HCQ turned over. In that process[10] Mr Smale was struck from behind by the generator and blacked out briefly. On impact the generator crashed down on top of Mr Mole. It landed hard on his throat such that he had to force his arm from under it to hold it up so that he could breathe. Fuel from the generator’s tank leaked into his eyes and mouth and soaked his clothing. Mr Smale re-entered HCQ to assist Mr Mole by unclipping his seatbelt.
[10]The description of the process is taken from Exhibit 4.
Mr Schloss and Ms Parsissons heard the crash and went quickly to the crash site which Mr Sullivan puts at approximately 500 metres from the take-off point. Although Mr Smale and Mr Mole have the crash occurring at a greater distance from the take-off point – in the order of 2 to 3 kilometres – I think on this aspect of the matter I accept that Mr Sullivan’s evidence is more likely to be accurate. I suspect that ultimately it does not matter a great deal exactly how far HCQ had travelled, it is enough to conclude, as I do, that it was no more than 400 to 500 metres from the take-off point.
Mr Sullivan and the two passengers returned to Flying Fox with Mr Schloss and Ms Parsissons. Their personal effects were retrieved from the helicopter and arrangements were made for Mr Sullivan to drive them to meet other Council employees who took them to hospital and then home.
The following day, in compliance with his obligation under s 19 of the Transport Safety Investigation Act 2003 (Cth), Mr Sullivan notified the ATSB of the fact and details of the incident by completing the ATSB’s Aviation Accident or Incident Notification. It is relevant to note that the document described the type of operation as “aerial work” instead of the correct description “charter”, it made no reference to the dangerous goods that were being carried, the fuel in the generator and chainsaw, and represented that there had been no injuries to crew or to passengers.
Some months later, in August 2010, Mr Smale had occasion to contact the ATSB to obtain a copy of its report into the incident in connection with his claim for worker’s compensation. When the ATSB determined that there were divergences between the incident as reported by Mr Sullivan and Mr Smale’s version of events the matter was referred to CASA where the investigation was undertaken by Mr Saffery.
That investigation led to Mr Sullivan being charged with criminal offences. In May 2012 Mr Sullivan pleaded guilty in the Magistrates Court to three offences. The first, under reg 215(9) of the Regulations, was that in the flight of HCQ on the afternoon of 30 March 2010 he failed to comply with the instructions contained in the operations manual of HCQ in the following respects:
·he loaded, or authorised the loading, of a generator weighing in excess of 77 kilograms (the maximum permissible weight in an unoccupied seat) on an unoccupied seat, that generator being restrained only by a seatbelt (contrary to a prohibition in the operations manual) and not by an approved cargo restraint (as the manual stipulated);
·he failed to give any or any adequate passenger briefing;
·he failed to weigh the passengers;
·he failed to comply with the Dangerous Goods Appendix of the operations manual;
·he failed to plan the flight in accordance with the weather conditions from an approved source;
·he failed to offload freight;
·he undertook maintenance (by fitting cargo pods) without being approved to do so;
·he permitted cargo (the generator) to encroach onto a passenger seat; and
·he failed to carry the required fuel.
The next charge was that, contrary to s 137.1 of the Criminal Code 1995 (Cth) he gave information (the Aviation Accident or Incident Notification) to the ATSB knowing that the information was false and misleading in the following respects:
·falsely stating the flight to be aerial work and not charter;
·omitting all references to the carriage of dangerous goods in a passenger compartment or at all;
·failing to state that at least one passenger was doused with fuel, that circumstance constituting a minor injury.
The final charge alleged a breach of s 29 of the Act, constituted by his actions as pilot in command of HCQ in permitting HCQ to be operated in a way that resulted in it carrying dangerous goods, the generator containing fuel in the passenger cabin with a passenger and a chainsaw containing fuel in an unapproved compartment, otherwise than in accordance with the Regulations or any written permission of CASA. A Statement of Agreed Facts was tendered to the Magistrate on sentence and read into the record. That document became an exhibit in these proceedings. In sentencing Mr Sullivan the Magistrate, in addition to fines and a suspended gaol sentence, imposed an exclusion period on Mr Sullivan of 12 months pursuant to s 30A of the Act.
The Case for CASA
CASA’s case was that Mr Sullivan had failed in his duty (reg 269(1)(c)) and, or alternatively, was not a fit and proper person (reg 269(1)(d)), and, either or both of those grounds being made out, it was submitted, the circumstances of the crash and its aftermath were such that cancellation of Mr Sullivan’s licence was called for.
Mr Sullivan breached his duty, it was contended:
(a)by overloading the aircraft and operating it beyond, and on CASA’s case, significantly beyond, its maximum take-off weight;
(b)by failing to comply with the operations manual in the respects particularised in the criminal proceedings;
(c)by carrying dangerous goods;
(d)by providing false, and, on the basis of the plea and the agreed facts, knowingly false, information to the ATBS.
And he was not a fit and proper person because of the demonstrated failings in his airmanship and by virtue of a want of integrity and honesty.
CASA’s submissions divided the conduct to be examined into two categories – that which was either admitted in the Magistrates Court or accepted at hearing and conduct alleged by CASA but in contest at the hearing. The admitted conduct has been set out already and need not be repeated. The accepted conduct comprised Mr Sullivan’s acceptance now that HCQ’s maximum take-off weight had been exceeded, his apparent lack of familiarity with the distinction between charter work and aerial work and his lack of knowledge of the requirements for carrying dangerous goods.
But in addition CASA submitted that HCQ’s take-off weight was far in excess of the maximum – a take-off weight in the order of 1233 kilograms was suggested. It is submitted that the manner of take-off, in which it is said Mr Sullivan ignored repeated warnings that pointed to HCQ being overloaded, clearly demonstrated further failings in airmanship. Next it was said that his insurance claim, submitted on 31 March 2010, which provided information similar to that given to the ATSB, further demonstrated dishonesty. Finally, it was said that Mr Sullivan demonstrated an apparent lack of insight into the nature of his conduct.
The Case for Mr Sullivan
Mr Sullivan accepted that in some respects he did not discharge his duty although, oddly, he appeared not to accept that he had failed to discharge his duty[11]. His case was that the admitted and accepted transgressions were of a minor nature. They were, he submitted, aberrations in an otherwise unblemished and lengthy flying career. If, as Mr Anderson, appeared to accept, the discretion to cancel or suspend had been enlivened, it ought not be exercised having regard to the minor nature of the transgressions, the fact that the accident was not the consequence of a minor overloading but the result of a freak weather event, and the extent of Mr Sullivan’s otherwise impeccable record, including considerable and commendable community work as attested to in the references provided by many distinguished community members.
[11] Transcript page 232, lines 8-11.
A preliminary issue
Before considering the contested conduct it is necessary to deal with an argument relied upon by Mr Sullivan and arising from the fact of the criminal proceedings in the Magistrates Court. There are two aspects to the argument. The first, dealt with at the outset of the hearing, was that I was precluded, as a matter of law, from having regard to the evidence that founded the three charges against Mr Sullivan that had been withdrawn by the prosecution in the Magistrates Court, and in respect of which he had been discharged. I do not intend to re-visit the ruling I then made; it is recorded in the transcript. The other aspect of the argument concerns the charges in respect of which Mr Sullivan was convicted. The argument, as best I can understand it, is that it would be unreasonable in the Wednesbury sense for CASA (and thus, presumably, for the Tribunal) to cancel Mr Sullivan's licence or to impose a period of suspension greater than that imposed in the Magistrate Court in reliance on s 30A of the Act in respect of the matters that underlie those charges. That is so, it is said, because those were matters which the Magistrates Court took into account when imposing an exclusion period of one year in reliance on that section. The submission was made[12] that,
The considerations which informed the Court's decision to exclude the applicant would be in all relevant ways identical to the considerations to which the respondent had regard in determining pursuant to r. 269 CAR the applicant's fitness and propriety to hold the licence. Both decisions ultimately depend upon whether, having regard to the interests of air navigation safety, the applicant will be able, at the expiry of the exclusion period, to discharge his responsibilities as a commercial helicopter pilot…
[12] Applicant’s supplementary submissions at paragraph [8].
I do not accept the submission. It is the case that the power in s 30A of the Act to make an exclusion order is conditioned upon the Court considering “that it is in the interest of air navigation safety for the person to be excluded” however the submission overlooks the necessary distinction to be drawn between the Court’s exercise of the judicial power of the Commonwealth and the Tribunal's exercise of the administrative power of the Commonwealth. The role of the Court in imposing an appropriate punishment, including consideration of an exclusion order, is quite different in both content and constitutional foundation, to the task of the Tribunal. The Tribunal's task, once one or more of the criteria in reg 269(1) is found to exist, is to determine the preferable decision in response to the conduct as found. I am unable to accept the proposition that that conduct is to be limited or defined in the way in which Mr Sullivan submits.
The Contested Conduct
Whilst there are several discrete areas of dispute they all revolve around a single issue – what was the weight of HCQ on take-off. The answer to that question is dependent upon the answer to a number of subsidiary questions, in particular,
(a)was HCQ refuelled after returning from Katherine with Mr Smale and Mr Mole,
(b)was HCQ carrying full or empty jerry cans on take-off from Flying Fox,
(c)was Mr Sullivan intending, on take-off, to fly to Roper Bar.
There are disputed issues of fact regarding the manner and details of the take-off but, in my view, they are generally of lesser significance. They fall to be considered by reference to my conclusions about the take-off weight of HCQ.
The Witnesses
I propose to make some general observations about the view I take of the reliability of witnesses, starting with those directly involved in the flight.
Mr Sullivan
I was not left with a favourable impression of Mr Sullivan’s reliability. I reach that view for a number of reasons.
First, it seems to me to be notable that there are a number of ways in which Mr Sullivan’s evidence varied from the agreed facts put forward in the Magistrates Court. Three matters, in particular, stand out.
Mr Sullivan earlier agreed, in two separate passages in the Agreed Facts, that the generator carried on HCQ was restrained (or secured) only by a passenger seat belt. Yet in his statement in these proceedings[13] he now says,
We then secured the generator with the right hand rear seat belt and another strap that was attached to the seat.
He expanded on that during his oral evidence with reference to a “ratchet tie down strap”[14].
[13]Exhibit 32, paragraph 38.
[14] Transcript page 178, line 12.
Next, in his oral evidence[15] he said that he had turned his mind to the distinction between a charter flight and aerial work and had consciously decided that the flight was aerial work not a charter flight. When completing the ATSB report he described the flight as aerial work[16]. He said that he did not consider that any injuries had been sustained in the crash. Yet he pleaded guilty to an offence that had as an element the giving of information knowing the information to be false or misleading, particularised as,
(1) falsely stating the flight to be aerial work and not charter,
(2) omitting all reference to the carriage of dangerous goods in a passenger compartment or at all, and;
(3) failing to state that at least one passenger was doused with fuel, that circumstance constituting a minor injury.
[15] Transcript page 186, lines 16-21.
[16] Exhibit 5.
Additionally, Mr Sullivan said in his statement[17]
I recall that before I loaded the generator into the helicopter I did look into it to see if there was any fuel. I noticed there was a tiny bit of fuel in the tank and I tipped it onto the ground.
But he had earlier pleaded guilty to an offence of carrying dangerous goods on HCQ particularised in part, as “a generator containing fuel in a passenger cabin”. The agreed facts also recited that the generator contained fuel and that fuel leaked onto Mr Mole and soaked his clothes.
[17]Exhibit 32, paragraph 39.
Mr Sullivan was represented by solicitor and counsel at the hearing before the Magistrate. The charges were, no doubt, read to him prior to his pleas of guilty and the agreed facts read into the record. He did not suggest, and I would certainly not infer, that the plea of guilty and the agreement about the facts were other than in accordance with his instructions. He did not suggest that he had had occasion to reflect more on the events and had come to realise that the facts were otherwise than he had earlier agreed to. I am then driven to conclude that Mr Sullivan was attempting, and I infer deliberately so, to minimise the extent of his failures of duty and to downplay the seriousness of them.
Next, it reflects poorly on Mr Sullivan’s credit that he knowingly provided false or misleading information to the ATSB following the crash. He has acknowledged that the effect of him doing so was to minimise the seriousness of the crash and the possibility of a referral to CASA. The inference that I draw is that he consciously sought to avoid an investigation by CASA.
Mr Sullivan produced in the Magistrates Court proceedings a document[18] which he said he used to record the individual weights of HCQ and its cargo and to calculate take-off weight. It records a take-off weight of 1060 kilograms. I find myself well short of being satisfied that it is what Mr Sullivan claims it to be. It was, he said[19], prepared during loading, once he had laid out on the hangar floor all of the equipment that was to be loaded onto HCQ. Having noted the weights, he then loaded the equipment. Yet exhibit 3 refers to one chainsaw not two. It has not been altered from two chainsaws to one. This incongruity was taken up with Mr Sullivan in cross-examination in the following terms[20],
[18] Exhibit 3.
[19] Transcript page 176, lines 26-29.
[20] Transcript page 177, lines 5-35.
The chainsaw, you only loaded one chainsaw. Why was that?‑‑‑Because of the weight and the room.
Because of the weight?‑‑‑And the room.
And the room, well, which is it - is it both?‑‑‑I can't remember exactly at the time.
You see, I am trying to understand, did you make your decision when you were estimating the weights, have you made your decision when you were trying to load it and found it couldn't fit?‑‑‑The - I can't recall to tell you the truth exactly, but I made it beforehand.
Before you loaded it you mean?‑‑‑Correct.
Or tried to load it, is that what you mean?‑‑‑No, before we loaded it.
So does that mean while it was still on the floor in the hangar?‑‑‑Yes.
Did you tell Mr Smale or Mr Mole that you weren't taking that chainsaw?‑‑‑I can't recall.
That was part of the contract, wasn't it?‑‑‑Part of the job?
Yes?‑‑‑Correct.
They were the officers immediately dealing with you and the equipment?‑‑‑Correct.
But you can't recall whether you told them you weren't taking some of that?‑‑‑I can't recall.
There was subsequent cross-examination on the same topic[21],
Can I just ask you – and again we’re onto the subject of the chainsaw that you left behind – what was your reason for taking only one and not both?‑‑‑It’s just the room.
Just the room. How did you know it wouldn’t fit? Did you try to put it in?‑‑‑I can’t recall.
Well, that’s how you would most likely discover that you couldn’t fit it in, wouldn’t it be?‑‑‑Either I made the assumption it wouldn’t fit, or it didn’t fit. I can’t recall.
But it transpires that Mr Sullivan had been asked a similar question in the Magistrates Court proceedings (in April 2012). He said this in his evidence in chief[22],
There's only one chainsaw there. Why didn't you put the other one in?-- I didn't want to take, you know - because I've judged the weights I could be out by a bit, so I want to leave a margin there. And there as [sic] no - I just put the necessary equipment on that I thought that we needed.
[21] Transcript page 200, lines 17-26.
[22] Exhibit 38, page 351, lines 1-3.
Mr Sullivan’s evidence in these proceedings was inconsistent with his evidence given in the Magistrates Court. Additionally, it is illogical. If, as Mr Sullivan said, exhibit 3 was written at a time after all the equipment had been laid out on the hangar floor but before any attempt had been made to load it he laid out, it may be wondered why only one chainsaw was recorded. In that circumstance it might have been expected that the list would have referred, at least initially, to two chainsaws. Moreover there is further illogicality in the notion of leaving a 5 kilogram chainsaw behind because of weight considerations. If exhibit 3 was what Mr Sullivan claimed it to be his calculated take-off weight was 1060 kilograms, 19 kilograms below the maximum take-off weight. That displays a concern about weight not otherwise demonstrated by Mr Sullivan whose estimates of the weight of Mr Smale and Mr Mole were out by 12 kilograms.
Finally, it seems absurd that Mr Sullivan would make a conscious decision to leave out one of the chainsaws yet not tell either of the passengers that part of the equipment was not to be carried as had been agreed. It is, I consider, more likely that both chainsaws were loaded aboard HCQ.
The evidence leaves me not satisfied that Mr Sullivan made any meaningful calculation of the take-off weight.
There is a further reason for scepticism about exhibit 3. On 31 March 2010 Mr Sullivan completed an insurance claim. In answer to a question about the take-off weight he wrote “1020 kg”. It seems highly improbable that he would have written that figure had he, the previous day, carefully calculated and recorded the take-off weight at 1060 kilograms.
I was left with the distinct impression that Mr Sullivan’s professed recollections were unreliable. As Mr Ashton, counsel for CASA submitted, there was a significant number of occasions when, in cross-examination, he was unable to recall details of matters of some significance in circumstances when one might have expected a recollection. The extracts from the transcript in paragraph 40 above illustrate a recurring theme in Mr Sullivan’s evidence, an inability to recall details of events of the day.
Mr Smale
There is no doubt that some of Mr Smale’s evidence – his estimates of height, speed, distance and suchlike – is inaccurate. That is not surprising. Moreover his evidence[23] that a GPS in the cockpit of HCQ displayed an altitude of 300 feet prior to its final descent seems likely to be unreliable. Something was sought to be made of what appears to be references by him in the transcript of the Magistrates Court proceedings to a person “Grant”. There is nothing in that criticism. Mr Smale was adamant that he made no such reference. The likelihood is that it was a transcription error but even if Mr Smale had used the wrong name, saying Grant instead of Brad, that does not detract from the thrust of his evidence that Brad was present at Flying Fox on the day and that Mr Smale observed him refuelling HCQ. And it is the case that there are differences between the evidence of Mr Smale and Mr Mole. So much is to be expected; it would be more remarkable if there had been no differences.
[23] Exhibit 9, paragraph [18].
Mr Sullivan’s submissions referred to a passage in the decision of Deputy President Jarvis in Re Johanson & Civil Aviation Safety Authority[24] and to the familiar passage from the judgment of Dixon J in Briginshaw v Briginshaw[25] that in matters such as the present,
‘reasonable satisfaction’ should not be produced by inexact proofs, indefinite testimony, or indirect inferences.
Conscious of that warning, I see no reason to doubt the general accuracy of Mr Smale’s evidence of matters of observable fact and his recollection of the general thrust of conversations. I was impressed by his recollection of events and I propose to generally accept his evidence. I expressly reject the suggestion that his evidence was the product of prompting by Mr Saffery.
[24] [2012] AATA 239 at [29] – [31].
[25] (1938) 60 CLR 336, 362.
Mr Mole
The same observations are true of Mr Mole except that his estimates, particularly of elevation, seem to be even more inaccurate. Much was sought to be made in cross-examination of him of statements in his statutory declaration about efforts to weigh the generator. Despite the impression that might be gained from those statements it transpired that he had not personally undertaken that task but had arranged for his staff to do that and, in his statement, was conveying what he had been told.
I do not consider that the error should detract from the otherwise favourable view I have of Mr Mole. In particular, I do not consider that Mr Mole was trying to intentionally mislead, rather, I consider that he was simply reporting a fact and did not appreciate, in the way a lawyer might appreciate, the need for personal observation.
Mr Schloss
I have a distinctly unfavourable impression of the evidence of Mr Schloss. Two things in particular stand out.
The first is that, despite providing, and verifying in the witness box, a detailed statement regarding the events of the 30 March 2010, including lengthy extracts of conversation said to have taken place, when pressed in cross-examination Mr Schloss could not recall many details at all. By way of example his witness statement referred to he and Mr Sullivan having removed “all of the unnecessary items out of the helicopter”[26] yet in his oral evidence he was unable to recall a single item that had been removed. It would be wrong to reject Mr Schloss' evidence merely because of an apparent poor recollection in the witness box. I note however that his witness statement, lodged in August 2012, demonstrates a much more comprehensive and coherent recollection of events than that which Mr Schloss showed in the witness box. The contrast between the detail of his written statement and his inability to recall in the witness box when pressed for detail is stark.
[26] Exhibit 40, paragraph [25].
The contrast was highlighted by passages of his evidence during cross-examination. His statement made reference in some detail to his actions in loading up HCQ with Mr Sullivan followed by their return to the kitchen on Flying Fox where the passengers, Mr Smale and Mr Mole, were. The statement recounts three separate conversations involving Mr Sullivan, which Mr Schloss claimed to recall hearing, in which Mr Sullivan told the passengers and Ms Parsissons of the altered plan to fly only to Roper Bar. Yet it is apparent from the evidence given by Mr Schloss at the hearing that he was not in a position to have heard any such conversation and did not hear any such conversation. That evidence was as follows[27],
[27] Transcript page 253, line 17 to page 254, line 11.
…did you go immediately up to the kitchen when you finished the loading?---Yes.
And was Mr Sullivan with you or - - -?---Yes.
- - - when you went up there? Did you go up together, did you?---Yes.
And what did Mr Sullivan do?---I can't remember.
And then what did you do?---I sat - just went around there and then I was actually - had made a phone call.
I see. So were you present for the conversation between Mr Sullivan and Anna [Parsissons] and the others at the table?---I can't remember.
Or might that have occurred while you were on the telephone?---Yes.
You can't recall any conversation that you heard - - -?---No.
- - - between Mr Sullivan and Ms - and Anna [Parsissons] in the presence of the others at the table?---No.
All right. When Mr Sullivan - did Mr Sullivan leave with Mr Roper and
Ms - leave with Mr Mole and Smale from the kitchen? Did they leave together, do you know, or were you still on the phone at that stage?---Yes, they left together.
You had finished your phone call by then?---No, I was still on the phone.
But you saw them leave, did you? I see. And did you then join them[[28]] when you finished your phone call?---No.
[28] The transcript uses “then”; “them” is obviously correct.
Did you make your call in the office?---Yes.
And you were able to see through what?---Through a window, through a door.
And you remained there when they left?---Yes.
[Emphasis added]
I raised the apparent inconsistency between the statement and the oral evidence at the conclusion of cross-examination in this passage of transcript[29],
[29] Transcript page 258, line 37 to page 259, line 22.
When you finished the load (indistinct) you and Mr Sullivan went to the kitchen; is that right?---Yes.
And you spoke about making a phone call; is that - is that what you did when you arrived at the kitchen?---Not straight away, no.
What happened when you first - - -?---We walked around to the kitchen. I think Sully said something about he just had to check a few things. I was just - as I was walking in behind him I just heard that and then I just went into the office then. Yes.
All right. Did you hear any other conversation at that stage?---No, not that I can recall.
Well, if we look at the statement, this is what I don't understand but perhaps you could explain it to me. Paragraph 32 is you and Mr Sullivan going back to the kitchen?---M'mm.
And then you can recall some conversation that you detailed and then a little while later he came back out of the office and there was another conversation that you detail and then Anna and you walked around to the front area to the - with the passengers to the helicopter and then you say then you went into the office to make a phone call?---Yes.
Have I missed something? That seems to be a different sequence to what you just told - - -?---Yes.
What is it?---What is it? It has been 12 months. I haven't - yes, I haven't - can't remember it all completely spot on.
But did you remember it in August 2012?---Yes.
But not now?---(No audible response).
It is also notable that on Ms Parsissons’ account of events Mr Schloss was not in the kitchen area in a position to be able to hear any of the conversations referred to in his evidence. On her account of events, she did not see Mr Schloss between his return to Flying Fox as pilot in command of HCQ with Mr Smale and Mr Mole as passengers and his coming to the kitchen to make a telephone call after HCQ departed with Mr Sullivan in command.
I am left to conclude that I am unable to place any reliance on the evidence of Mr Schloss on matters of controversy.
Ms Parsissons
Much of Ms Parsissons’ evidence is uncontroversial and much of it is not in issue. She gives two pieces of evidence that Mr Sullivan relies on in particular. First, she gives evidence that, if accepted, would confirm that Brad was not at Flying Fox and thus could not have refuelled HCQ before the departure with Mr Sullivan in command. And her evidence, if accepted, confirms Mr Sullivan’s evidence of a change in plan with the new plan to fly to Roper Bar and reassess the position at that point. I am unable to accept that evidence principally because it conflicts with the evidence of Mr Smale and Mr Mole that I do accept. In my judgment, on these aspects, Ms Parsissons’ recollection is faulty.
Mr Saffery
A vigorous attack was launched on the credit of Mr Saffery by Mr Anderson. It was hinted in cross-examination, and put somewhat faintly in submissions, that Mr Saffery had in some way, brought about what were, on Mr Sullivan’s case, “flawed” embellishments to the evidence of Mr Smale and Mr Mole. The attack was based upon an e-mail sent by Mr Saffery to both Mr Smale and Mr Mole on 28 January 2011. To that point Mr Saffery had obtained signed statutory declarations from each of Mr Smale and Mr Mole and had spoken briefly to Mr Sullivan about the circumstances of the crash. The e-mail read in part[30]:
Mark [Sullivan] has also indicated that at the time of take-off he only had sufficient fuel to reach Roper Bar and that he intended to make an assessment regarding the on-going flight and refuel there. I got the impression from you guys that the aircraft was fully fuelled and the intent was to travel to the remote community direct. Am I wrong about this impression?
[30] Exhibit 7.
Mr Smale’s response on 3 February 2011, was to assert emphatically that “[b]oth fuel tanks were filled” at Flying Fox and supported his recollection by reference to an incident that he particularly remembered.
In the course of cross-examinations Mr Saffery was taken to a passage in Mr Smale’s original statement of 14 September 2010 in which Mr Smale said:
On arrival at the property [Flying Fox] the helicopter was refuelled.
Mr Saffery spoke of having had an “impression” from the witnesses that the aircraft had been fully fuelled. It was suggested to him that that he had no reasonable basis for that impression. It was suggested to him that his erroneous impressions had led Mr Smale into believing that the aircraft had been fully refuelled. What Mr Saffery was not taken to, either in cross-examination or in re-examination, was paragraph 27 of Mr Smale’s statement of 14 September 2010 which read:
I believe that at the time of the accident the helicopter had full fuel.
Cross-examination of Mr Saffery without referring him to that passage was unfair (although I am sure, unintentionally so) but more importantly it puts paid to any suggestion that Mr Saffery wrongly or improperly aided Mr Smale’s recollection, at least in this respect.
The intention on take-off
So far as each of Mr Smale and Mr Mole are concerned the plan was, and remained, that Mr Sullivan would fly them from Flying Fox to Numbulwar. Mr Smale says[31] he knew of no plan to fly them to Roper Bar. It may well be the case that an employee was required to take fuel to Roper Bar to refuel HCQ eventually, but so far as they were concerned the plan was that they would be flown to Numbulwar in HCQ and that it would then return to Roper Bar and collect equipment[32]. I prefer the evidence of Mr Smale and Mr Mole. I am unable to accept that Mr Sullivan intended to fly to Roper Bar on take-off from Flying Fox. I reject his evidence to that effect and the evidence of Mr Schloss and Ms Parsissons that they heard him telling Mr Smale and Mr Mole of a change of plan. I prefer the evidence of the passengers that the plan was, and remained to their knowledge, to fly to Numbulwar.
[31] Transcript page 35, line 25.
[32] See e.g. Exhibit 14, paragraph 6; transcript page 67, lines 43 – 47.
Were the jerry cans full or empty
It is common ground that two 20 litre jerry cans were loaded aboard HCQ. Mr Sullivan says that they were empty. I do not accept that evidence; I prefer the evidence of Mr Mole who observed the containers being loaded aboard HCQ and who inferred from the manner in which they were carried that they were full. I was satisfied that the two fuel cans were, in fact, full. I accept that Mr Smale’s recollection on this aspect of the matter is slightly different, he recollects that the jerry cans were loaded when he saw them, however that does not deter me from accepting the reliability of Mr Mole’s evidence on the point. CASA points to evidence that two full containers weighed 35 kilograms however I do not regard that evidence as demonstrating the proposition. There seems to be no satisfactory evidence as to the weight of the full containers however I am prepared to infer that the additional weight would not be insignificant.
Was HCQ refuelled
Each of Mr Sullivan, Mr Schloss and Ms Parsissons gave evidence that Brad, the Flying Fox employee who Mr Smale and Mr Mole said was involved in the refuelling of HCQ, we sent off to Roper Bar with fuel and that HCQ was not refuelled at Flying Fox before the final take-off. Curiously, in one passage of his evidence[33] Mr Sullivan spoke of “Brad White” being present in the kitchen immediately prior to the departure of HCQ from Flying Fox although it may be that he intended to refer to Mr Schloss. The matter was not taken up with him and ultimately I consider it best to reach my conclusions without regard to what may be a mistaken reference. But both Mr Smale and Mr Mole say that they observed the aircraft being refuelled. I am satisfied that they were accurate in their accounts of having seen that take place. It matters not whether it was Brad or someone else who undertook the refuelling, it is enough to say that I am satisfied by the evidence of Mr Smale and Mr Mole that it was refuelled. It is, however, impossible to say whether it was completely refuelled.
[33] Transcript page 178, line 45.
Conclusions about the Flight
It follows from the discussion above that HCQ was considerably in excess of the maximum take-off weight on departure from Flying Fox. It is common ground[34] that maximum take-off weight was 1089 kilograms. Even on Mr Sullivan’s evidence that weight was exceeded. On his case[35] the take-off weight was 1094.1 kilograms as follows,
[34]Exhibit 22, paragraph [4]; exhibit 26, page 3.
[35]While CASA presented detailed schedules setting out its contentions regarding weight the same was not true of Mr Sullivan’s case. It may be that Mr Sullivan contended that the weight was approximately 2 kilograms more than this figure. The matter was never made particularly clear.
Aircraft empty weight 652.6
Fuel on HCQ 30
Helipod 24.5
Occupants’ weight
- Sullivan 85
- Smale 87
- Mole 95
267
Sullivan’s gear 10
Passengers’ gear 20
Generator 80
Chainsaw (1) 5
Jerry cans (empty) 5
1094.1
CASA says that that ought be considerably increased. It contends that the weight of fuel was likely to have been 136.8 kilograms rather than 30 kilograms and that the full jerry cans were 35 kilograms not 5 kilograms. Given that I am unable to know whether it was fully fuelled I am not in a position to determine the take-off weight. And, as I have said, I do not regard the evidence of the weight of the two jerry cans as satisfactory. It is though likely that HCQ exceeded the maximum permissible weight by a considerable margin if, as I conclude, fuel was added to it and it was carrying two full jerry cans.
It is common ground that the low RRPM (rotor revolutions per minute) horn on HCQ sounded on three occasions prior to the aircraft gaining elevation. It is quite normal, and is part of the ordinary pre-flight checks, for a pilot to test the warning system by reducing main rotor revolutions as the collective is lifted slightly to ensure that the caution light is illuminated and that the horn sounds. Mr Sullivan seeks to explain the subsequent occasions of that occurring on the basis that the effect of the wind meant that he had to use more power to the tail rotor in order to manoeuvre HCQ into the wind. If, as Mr Sullivan says, the wind was from his five o'clock he had to turn HCQ about 150°.
Mr Sullivan relies on the evidence of Mr David Knapp, an experienced military helicopter pilot, to lend support to his account of events. There is no reason to doubt Mr Knapp's experience nor his qualifications to express an opinion, however, as in many similar situations, his opinion is predicated upon the factual assumptions that underlie it, in this case Mr Sullivan's assertion that HCQ was not taking off in excess of its maximum take-off weight. As is apparent, I do not accept the correctness of that assumption. On the contrary, I am satisfied that HCQ's take-off weight was considerably in excess of the maximum. In those circumstances the likelihood is, and I find, that the RRPM warning horn sounded on the second and third occasions because HCQ was overloaded. Prudence dictated that Mr Sullivan not attempt to take off in those circumstances yet he did.
Mr Sullivan's evidence was that HCQ did not ever get above about 15 feet. That seems unlikely. It seems more likely to have been higher. An elevation of 15 feet is inconsistent with the proposition put to Mr Smale[36] and it seems to be logically inconsistent with the distance that HCQ travelled from the time it first lost elevation to the final point of impact. However, ultimately, it does not matter. If, as I conclude, HCQ was significantly overloaded Mr Sullivan had no real chance of safely controlling its flight in the event of some sudden change in conditions, for example, a shift in the wind either in direction or intensity. By taking off when HCQ was overloaded Mr Sullivan increased the chance of failure and reduced his chances of undertaking a safe flight. It may be accepted that he displayed a high level of technical skill in bringing HCQ back to the ground and that it was unfortunate that one of its skids caught on the fence post. But for that, it is likely that the landing would have been undertaken without injury to those on board or damage to the aircraft.
[36] Transcript page 47, line 17. It was put that the aircraft did not climb above 100 feet.
But it remains the case that Mr Sullivan ought never to have attempted to take off in HCQ on that day. He ought to have stuck with the original plan to ferry Mr Smale and Mr Mole first and then return to take the cargo separately.
Did Mr Sullivan Fail in his Duty?
Mr Anderson accepted[37] that Mr Sullivan had failed in his duty such that the discretion in reg 269(1) of the Regulations was enlivened. The concession was undoubtedly correct. And there were other, lesser failures, the failure to comply, in a number of respects, with the operations manual, for example. The knowingly false report to the ATSB was equally concerning although it was not, in my view, a failure of duty with respect to a matter affecting the safe navigation or operation of an aircraft.
[37] Transcript page 342, lines 25 – 35.
It is then clear that Mr Sullivan failed in his duty with respect to matters affecting the safe navigation or operation of HCQ.
Is Mr Sullivan Fit and Proper Person?
Mr Anderson stressed the number and range of testimonials that spoke in glowing terms of Mr Sullivan's ability as a pilot and of the very great contribution he had made to the community over the years. And it is the fact that Mr Sullivan had flown incident-free for in excess of 10,000 hours. The events of 30 March 2010 were, it was submitted, an aberration, an unfortunate set of circumstances that was not likely to be repeated. They did not demonstrate that Mr Sullivan was not a fit and proper person to have the responsibilities and exercise and perform the functions and duties of the holder of a commercial pilot's licence.
I am unable to agree.
It is unwise to attempt to define the matters that may be legitimately enquired into; each case must depend upon its own circumstances[38]. But in the present context it is possible to say that a fit and proper pilot is one who has an appreciation of the statutory responsibilities and one who discharges them[39]. In Re Taylor and Department of Transport[40] the Tribunal was considering reg 258 of the Air Navigation Regulations, the statutory precursor to reg 269 of the Civil Aviation Regulations and relevantly identical to it. The Tribunal said[41],
In the context of reg 258(1)(d), the enquiry whether the applicant is a ‘fit and proper person’ is directly focused upon the fitness and the propriety of the applicant exercising the ‘responsibilities’ and performing the ‘functions’ and ‘duties’ of the holder of a licence – in this case a commercial pilot licence. It is not simply a question of competence to fly an aircraft which the Secretary must consider for this purpose.
In our view, what the regulation requires is a consideration of the applicant's conduct measured against the responsibilities, functions and duties of the holder of a commercial pilot licence as they emerge from the provisions of the Air Navigation Regulations. Whilst it would be inappropriate to endeavour to catalogue those responsibilities, functions and duties in any exhaustive fashion, it is clear that they include observing the interests of the safety of air navigation – not only the interests of pilots, passengers and the owners of aircraft, but also the interests of the public at large.
[38] See Hughes and Vale Pty Ltd v New South Wales (No 2) (1955) 93 CLR 127, 157.
[39]Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321, 349.
[40](1978) 1 ALD 312.
[41]At 321.
That seems to me to be an appropriate way to consider the question whether Mr Sullivan is a fit and proper person.
Mr Sullivan's competence is not open to question but his judgement on 30 March 2010 and thereafter was seriously flawed. The danger of stowing an 80 kilogram generator on a passenger seat was obvious. That it contained fuel merely compounded the danger. Mr Sullivan either did not comprehend the danger or, if he did, he was indifferent to it. He must have known that HCQ was significantly overweight or, if he did not, he was indifferent to it. To attempt a take-off was a further, and dangerous, lapse of judgement. The danger inherent in the attempt was heightened by the prevailing weather conditions that ought to have made Mr Sullivan even more cautious about taking off. Mr Sullivan did not desist from his attempts at take-off when prudence required him to do so. And he was either unaware of the requirements of the operating manual of HCQ or chose to ignore them. Either is concerning.
Mr Sullivan then acted dishonestly by lodging a report with the ATSB which he knew to be false in material particulars. I infer that he did so to avoid an investigation and subsequent consideration of his conduct by CASA. I reject his evidence to the contrary. Additionally it cannot have been other than dishonest on his part to tell his insurer, on the day following the incident, that the take-off weight of HCQ was 1020 kilograms.
In the hearing he sought to downplay the seriousness of matters and, in my view, did so deliberately. That may be a common enough human reaction but it does display a concerning lack of insight.
These matters satisfy me that Mr Sullivan is not a fit and proper person to have the responsibilities and exercise and perform the functions and duties of the holder of a commercial pilot's licence.
Conclusion
Having reached the view that Mr Sullivan is not a fit and proper person it seems to me that the only appropriate response, having regard to the primacy of aviation safety, is that Mr Sullivan's licence ought be cancelled. I do not consider that the matter is one that could be dealt with by the imposition of even a lengthy period of suspension. I accept that that decision will create hardship for Mr Sullivan however those matters cannot transcend the primary obligation to regard the safety of air navigation as the most important consideration nor my conclusion that he is not a fit and proper person.
I certify that the preceding 78 (seventy-eight) paragraphs are a true copy of the reasons for the decision herein of Deputy President P E Hack SC ......................[Sgd]..................................................
Associate
Dated 24 June 2013
Date(s) of hearing 8-11 April 2013 Date final submissions received 6 May 2013 Counsel for the Applicant Mr J Anderson Solicitors for the Applicant McMahon Broadhurst Glynn Counsel for the Respondent Mr RS Ashton Solicitors for the Respondent Legal Services Division, CASA
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