McBain and Civil Aviation Safety Authority - [2002] AATA 527

DECISION AND REASONS FOR DECISION [2002] AATA 527

ADMINISTRATIVE APPEALS TRIBUNAL )

) No V2002/181

GENERAL ADMINISTRATIVE DIVISION     )
           Re      BERNARD ERIC McBAIN
  Applicant
           And    CIVIL AVIATION SAFETY AUTHORITY
  Respondent

DECISION

Tribunal Mrs J.R. Dwyer, Senior Member Mr A. Argent, Member
Date 28 June 2002

PlaceMelbourne

Decision      The Tribunal affirms the decision under review.
  (Sgd) Joan Dwyer
  Senior Member
CIVIL AVIATION - cancellation of Commercial Helicopter Pilot's licence - operations manager of company providing helicopters and pilots for fish spotting operations – breaches of Civil Aviation Act and Civil Aviation Regulations – whether applicant a fit and proper person to hold a licence – whether breaches relate to air safety – decision affirmed
Civil Aviation Act 1988 ss 20AA(3), 20AA(4), 27(2)(c) and 29(1)
Civil Aviation Regulations 5.09, 41(1), 42ZD, 42ZN, 43B, 47, 50, 50A(1)(a), 133, 206 and Schedule 8
Civil Aviation Order ("CAO") 100.5.3 and Appendix 1, 2.1.

Briginshaw v Briginshaw [1938] 60 CLR 336

Mahon v Air New Zealand and Others [1984] 1 AC 808

Australian Broadcasting Tribunal v Bond (1990) 94 ALR 11

Re Moores Airspray Pty Ltd v Civil Aviation Safety Authority (AAT 10383,

11 August 1995) noted at (1995) 38 ALD 479

Hughes and Vale Pty Ltd v NSW (No 2) (1955) 93 CLR 127

Re Broadbent and Civil Aviation Safety Authority [1999] AATA 970

Re Paggi (Trading as Paggi Aviation) and Civil Aviation Safety Authority

[2000] AATA 348

Re Griffiths and Civil Aviation Authority (1994) 34 ALD 554

REASONS FOR DECISION

28 June 2002 Mrs J.R. Dwyer, Senior Member
Mr A. Argent, Member

This is an application by Mr Bernard McBain for review of a decision of the Civil Aviation Safety Authority ("CASA"), made on 12 February 2002 (T53 pp452-453), refusing to issue him a Commercial Pilot (Helicopter) Licence ("CPL(H)") on the ground that he was not "a fit and proper person to hold the licence".
The decision not to issue the licence was made under regulation 5.09 of the Civil Aviation Regulations 1988 ("CAR"), which reads:
REG 5.09 Flight crew licence: issue and refusal
(1)Subject to subregulation (2), CASA must issue a flight crew licence to an applicant if, and only if, the applicant:
(a)possesses a knowledge of the English language that is sufficient to enable him or her to exercise safely the authority given by the licence; and
(b)is qualified to hold the licence; and
(c)is a fit and proper person to hold the licence.
(2) CASA must not issue a licence to a person if the person:
(a)has knowingly or recklessly made a false or misleading statement in relation to the person's application for a licence; or
(b)does not satisfy the requirements of subregulation (1).
(3)In deciding whether an applicant for a licence is a fit and proper person to hold the licence, CASA must only take into account:
(a)any action taken by CASA, or a responsible organisation, in relation to any authority to perform duties essential to the operation of an aircraft during flight time that was given to the applicant by CASA, or the organisation; and
(b)any other matter that relates to the safety of air navigation.
(4)An applicant for a licence must disclose to CASA information of which the applicant is aware and that is relevant to a matter that CASA must take into account under subregulation (3).
CASA in its decision referred to a decision of 22 August 2001 (T3 pp4-15) which had cancelled a CPL(H) licence which Mr McBain had held for 14 years. It was cancelled because of matters arising from Mr McBain's role, from January 1999 to September 2000, as the operations manager of McBain Holdings Pty Ltd ("McBain Holdings"), Rockhampton, Queensland. This company flew four Hughes 500 turbine-powered helicopters for tuna spotting operations from Taiwanese or Chinese fishing boats in the western Pacific Ocean.
CASA cancelled Mr McBain's CPL(H) under CAR 269(1)(d) on the ground that "he was not a fit and proper person" to hold that licence, based upon a number of alleged contraventions and breaches of air safety legislation. Mr McBain lodged an application for review of the cancellation decision and twice unsuccessfully sought a stay of that decision. Before the substantive matter came on for hearing he withdrew the application for review and instead applied for the issue of a new licence. That was refused and the current application was lodged.
The decision under review in this matter is based on the same factual issues as the prior cancellation decision. In the decision under review they were expressed as follows (Tdocs pp452-453):
1.Between January 1999 and September 2000, McBain Holdings Pty Limited, conducted aerial work operations without an Air Operator's Certificate (AOC). You applied for an AOC on 18 April 2000, but CASA did not issue one.
2.You permitted aircraft VH-MBM, VH-AKV, VH-MHM and VH-MHQ to be operated without a maintenance release by Messrs Benbow, Nordstrom and O'Callaghan (the pilots). If there were valid and current maintenance releases, time in service, maintenance performed and defects were not recorded on them by the pilots between January 1999 and September 2000.
3.Aircraft VH-MHM operated without a certificate of airworthiness and maintenance release once it was issued with a certificate of registration on 5 November 1999. Aircraft VH-MBM was operated after 20 September 1999 when a certificate of registration was issued, but a certificate of airworthiness was not issued until 19 January 2000.
4.You and McBain Holdings permitted maintenance to be performed on aircraft VH-MBM, VH-AKV, VH-MHM and VH-MHQ (the aircraft) by persons who were not qualified to do so.
5.You performed maintenance on aircraft VH-MHM and VH-MHQ, when not qualified to do so.

THE LEGISLATION

The relevant legislation is:
(a)ss 20AA(3), 20AA(4), 27(2)(c) and 29(1) of the Civil Aviation Act 1988 ("CAA");
(b)CAR 5.09, 41(1), 42ZD, 42ZN, 43B, 47, 50, 50A(1)(a), 133, 206 and Schedule 8; and
(c)Civil Aviation Order ("CAO") 100.5.3 and Appendix 1, 2.1.
As far as they are relevant to these proceedings, the CAA, CAR and CAOs read:
[CAA] 20AA Flying unregistered aircraft etc.
…
(3)An Australian aircraft is not to commence a flight unless:
(a)a certificate of airworthiness under the Civil Aviation Regulations is in force in respect of the aircraft; or
(b)the Civil Aviation Regulations authorise the flight without the certificate.
(4) An Australian aircraft is not to commence a flight unless:
(a)a maintenance release under the Civil Aviation Regulations that covers the duration of the flight is in force in respect of the aircraft; or
(b)the Civil Aviation Regulations authorise the flight without the release.
…
[CAA] 27 AOCs
(1)CASA may issue AOCs for the purposes of its functions.
(2)Except as authorised by an AOC, or by a permission under section 27A:
(a)an aircraft shall not fly into or out of Australian territory; and
an aircraft shall not operate in Australian territory; and
(c)an Australian aircraft shall not operate outside Australian territory.
…
(9)Subsection (2) applies only to the flying or operation of an aircraft for such commercial purposes as are prescribed.
[CAA] 29 Offences in relation to aircraft
(1)No owner, operator, hirer (not being the Crown) or pilot of an aircraft shall operate the aircraft or permit the aircraft to be operated so as to:
(a)use an aerodrome in contravention of a condition specified under section 20; or
(b)fly or be operated in contravention of a provision of this Part or a direction given, or condition imposed, under such a provision.
…
[CAR] 42ZD Maintenance on Australian aircraft outside Australian territory
(1)The holder of the certificate of registration for, or the operator or pilot in command of, an Australian aircraft must not authorise or permit any maintenance to be carried out on the aircraft outside Australian territory except by a person who is permitted by this regulation to carry out maintenance.
(2)A person may carry out maintenance on an Australian aircraft outside Australian territory if:
(a)the person would be permitted by regulation 42ZC to carry out the maintenance if the aircraft were in Australian territory; or
(b)if the aircraft is in a Contracting State — the person would be permitted under the law of the Contracting State to carry out the maintenance if the aircraft were registered in the Contracting State; or
(c)the person is authorised by CASA under subregulation (3) to carry out the maintenance and the maintenance is carried out in accordance with any conditions subject to which the authorisation is given.
(3)CASA may, in writing, authorise a person for the purposes of paragraph (2) (c).
(4)An authorisation is subject to any conditions that:
(a)CASA considers are necessary in the interests of the safety of air navigation; and
(b)are included in the authorisation.
[CAR] 42ZN Certification of maintenance outside Australian territory
The holder of the certificate of registration for an Australian aircraft on which maintenance has been carried out outside Australian territory must not fly the aircraft, and must ensure the aircraft is not flown, unless:
(a)the completion of the maintenance has been certified by:
(i)a person who would have been permitted by regulation 42ZC to carry out the maintenance if the aircraft had been in Australia; or
(ii)if the maintenance was carried out in a Contracting State — a person who would be permitted under the law of the Contracting State to certify the completion of the maintenance if the aircraft were registered in the Contracting State; or
(iii)a person who is authorised by CASA to certify the completion of the maintenance; and
(b)the certification is made in a manner that is acceptable to CASA having regard to the safety of air navigation.
…
[CAR] 43B Time-in-service to be recorded on maintenance release
On the completion of flying operations on each day that an aircraft is flown, the owner, operator or pilot in command must record on the maintenance release the total time-in-service of the aircraft on the day.
…
[CAR] 47 Maintenance release to cease to be in force
(1)If:
(aa)the holder of the certificate of registration for; or
(ab)the operator of; or
(ac)a flight crew member of; or
(ad)an authorised person engaged (whether as an employee or on his or her own behalf) in the maintenance of;
an aircraft in respect of which a maintenance release is in force becomes aware:
(a)that:
(i)a requirement or condition imposed under these Regulations in respect of the maintenance of the aircraft has not been complied with;
(ii)the aircraft has suffered major damage or has developed a major defect, other than damage or a defect that is a permissible unserviceability;
(iii)abnormal flight or ground loads have been imposed on the aircraft; or
(iv)maintenance carried out on the aircraft may have adversely affected, to such an extent as to affect the safety of the aircraft, the flight characteristics of the aircraft or the operating characteristics of any aircraft component, or any system of aircraft components, installed in the aircraft; and
(b)that there is a likelihood that the aircraft will be flown before:
(i)the requirement or condition referred to in subparagraph (a) (i) has been complied with;
(ii)the damage or defect referred to in subparagraph (a) (ii) has been remedied;
(iii)any damage caused by the imposition of the abnormal loads referred to in subparagraph (a) (iii) has been remedied; or
…
[CAR] 50 Defects and major damage to be endorsed on maintenance release
Where the holder of the certificate of registration for, or the operator or a flight crew member of, an Australian aircraft:
(a)becomes aware of the existence of a defect in the aircraft; or
(b)becomes aware that the aircraft has suffered damage that in the opinion of the holder, the operator or the flight crew member is major damage;
he or she shall enter on the maintenance release, or other document approved for use as an alternative to the maintenance release for the purposes of this regulation, an endorsement signed by him or her setting out the particulars of the defect or damage, as the case may be.
[CAR] 50A Aircraft log book
(1)Subject to regulation 50B, the holder of the certificate of registration for an Australian aircraft must:
(a)keep a log book for the aircraft; and
(b)make the log book, and other documents referred to in the log book, available to CASA and to persons engaged in maintenance on the aircraft;
in accordance with the instructions issued by CASA under subregulation (2).
Penalty: 50 penalty units.
[CAR] 133 Conditions to be met before Australian aircraft may fly
(1)Subject to subregulation (2), regulation 317 of these regulations and regulation 21.197 of CAR 1998, an Australian aircraft shall not commence a flight unless:
(a)it has a nationality mark and a registration mark painted on, or affixed to, it in accordance with Part 45 of CAR 1998;
(c)the flight is not in contravention of any condition that:
(i)is set out or referred to in the maintenance release or in any other document approved for use as an alternative to the maintenance release for the purposes of regulation 49, or subregulation 43 (10); or
(ii)is applicable to the maintenance release by virtue of a direction given under regulation 44;
(d)any maintenance that is required to be carried out before the commencement of the flight, or that will be required to be carried out before the expiration of the flight, to comply with any requirement or condition imposed under these Regulations with respect to the aircraft has been certified, in accordance with regulation 42ZE or 42ZN, to have been completed; and
(e)it complies with these Regulations in respect of the number and description of, and the holding of licences and ratings by, the operating crew.
…
[CAR] 206 Commercial purposes (Act, s 27 (9))
(1)For the purposes of subsection 27 (9) of the Act, the following commercial purposes are prescribed:
(a) aerial work purposes, being purposes of the following kinds:
(i)aerial surveying;
(ii) aerial spotting;
(iii)agricultural operations;
(iv)aerial photography;
(v)advertising;
(vi)flying training, other than conversion training or training carried out under an experimental certificate issued under regulation 21.195A of CAR 1998 or under a permission to fly in force under subregulation 317 (1);
(vii)ambulance functions;
(viii)carriage, for the purposes of trade, of goods being the property of the pilot, the owner or the hirer of the aircraft (not being a carriage of goods in accordance with fixed schedules to and from fixed terminals);
(ix)any other purpose that is substantially similar to any of those specified in subparagraphs (i) to (vii) (inclusive);
. . .
[CAR] Schedule 8 Maintenance that may be carried out on a Class B aircraft by a pilot entitled to do so under subregulation 42ZC (4)
(subregulation 42ZC (4))
1. Removal or installation of landing gear tyres, but only if the removal or installation does not involve the complete jacking of the aircraft.
2. Repair of pneumatic tubes of landing gear tyres.
3. Servicing of landing gear wheel bearings.
4. Replacement of defective safety wiring or split pins, but not including wiring or pins in control systems.
5. Removal or refitting of a door, but only if:
(a)no disassembly of the primary structure or operating system of the aircraft is involved; and
(b)if the aircraft is to be operated with the door removed — the aircraft has a flight manual and the manual indicates that the aircraft may be operated with the door removed.
6. Replacement of side windows in an unpressurised aircraft.
7. Replacement of seats, but only if the replacement does not involve disassembly of any part of the primary structure of the aircraft.
8. Repairs to the upholstery or decorative furnishings of the interior of the cabin or cockpit.
9. Replacement of seat belts or harnesses.
10. Replacement or repair of signs and markings.
11. Replacement of bulbs, reflectors, glasses, lenses or lights.
12. Replacement, cleaning, or setting gaps of, spark plugs.
13. Replacement of batteries.
14. Changing oil filters or air filters.
15. Changing or replenishing engine oil or fuel.
16. Lubrication not requiring disassembly or requiring only the removal of non-structural parts, or of cover plates, cowlings and fairings.
17. Replenishment of hydraulic fluid.
18. Application of preservative or protective materials, but only if no disassembly of the primary structure or operating system of the aircraft is involved.
19. Removal or replacement of equipment used for agricultural purposes.
20. Removal or replacement of glider tow hooks.
21. Carrying out of an inspection under regulation 42G of a flight control system that has been assembled, adjusted, repaired, modified or replaced.
22. Carrying out of a daily inspection of an aircraft.

(Class B aircraft is one that is not a transport aircraft flying with a fixed schedule to and from fixed terminals over specific routes – CAR 2 definitions)

CIVIL AVIATION ORDERS
PART 100
Section 100.5
Issue 5
GENERAL REQUIREMENTS
IN RESPECT OF MAINTENANCE
OF ALL AUSTRALIAN AIRCRAFT  Commencement Date: 1 March 1992
1.1      …
2.1      …
3 – AIRCRAFT LOG BOOKS
3.1 – For the purposes of subregulation 50A (2), the Authority's instructions in relation to aircraft log books are set out in paragraphs 3.2 and 3.3.
3.2 – An aircraft log book must:
(a)identify the aircraft and the type and model of engine and propeller fitted to the aircraft and must state whether the aircraft is equipped for IFR operations, VFR (Day) operations or VFR (Night) operations; and
(b)identify the aircraft's maintenance program (including details of maintenance release inspections); and
(c)identify any approved variations or exemptions to the aircraft's maintenance schedules; and
(d)have provision for the recording and certification of maintenance carried out on the aircraft; and
(e)have provision for the recording and certification of maintenance carried out on the aircraft's engine and, if applicable, the propeller; and
(f)contain a record of when the engine and, if applicable, the propeller, was installed or removed and a record of the date and aircraft time-in-service of the installation or removal; and
(g)contain a record of when any time-lifed components were installed or removed, including a record of the date and aircraft time-in-service of the installation or removal; and
(h)contain a record of compliance with all applicable airworthiness directives, including a record of the date and time-in-service of the compliance; and
(i)contain a summary of any changes to the empty weight of the aircraft; and
(j)have all log book sections incorporating certification pages bound and sequentially numbered.

THE EVIDENCE

At the hearing of the application Mr McBain was represented by Mr J. Langmead SC and Mr S. Bayles of Counsel and CASA by its solicitor, Mr A. Anastasi.
The Tribunal had before it the documents lodged by CASA in this matter and in the application for review of the cancellation decision (No. V01/1219), pursuant to s 37 of the Administrative Appeals Tribunal Act1975 (the "T documents"). The Tribunal took in the following exhibits:
Applicant's Exhibits
A1Mr McBain's Affidavit of 9 May 2002 and exhibits
A2Mr Michael's Affidavit of 9 May 2002
A3Notes, Receipts – 4 pages
A4Photo Album of Mr Michael
A5Extract of Passport of Mr Michael – 18 March 2000
A6Certificate of Training by Hawker Pacific to Mr McBain for training from 02 June to 13 June 1997
A7Facsimile from Mr Michael to his wife dated June 2000.
A8"The Age Newspaper Article" – regarding Clinton Michael dated 27 May 1997
A9Log Book of Mr Michael – Opening Page through to last flight entry and Statutory Declaration by Mr Michael 22 September 2001
A10Letter from Jayrow dated 20 May 2002
Respondent's Exhibits
R1Letter to Tribunal by Mr Michael dated 21 September 2001
R2Fax from Mr McBain to Mr O'Callaghan dated 7 January 2000
R3Fax from Mr O'Callaghan to Mr McBain, dated 14 June 2000
R4E-mail record of telephone conversation on Thursday 27 September from Mr O'Callaghan to Mr Anastasi dated 5 October 2001
R5List of components made by Mr Benbow
R6List of components made by Mr O'Callaghan
R7Facsimiles from Mr Nordstrom to Mr McBain dated 23 November 1999 and 7 December 1999.
R8Witness Statement of George Ivory, dated 10 May 2002
R9Witness Statement of Colin Herbert, dated 10 May 2002
R10Witness Statement of Leon Kippen, dated 10 May 2002
R11Certificates and Checklist re: VH–MHM
R12Notice of suspension, checklist & certificates Re: VH-MBM

The applicant, Mr McBain, gave evidence. Other witnesses for the applicant were:
(a)Mr Michael, a commercial helicopter pilot, employed by McBain Holdings from September 1999 to April 2000 and from June 2000 to August 2000 on tuna spotting operations;
(b)Mr Synott who was a fixed wing flying instructor when Mr McBain did his flying training in 1986; and
(c)Mr Maitland of Grundy, Maitland & Co, Mr McBain's solicitor.
Witnesses for CASA were:
(a)three helicopters pilots who had been employed by McBain Holdings for tuna spotting operations off Taiwanese fishing vessels:
(i)Mr O'Callaghan, who was employed from about 16 December 1999 to March 2000 and from 24 April 2000 to 14 June 2000,
(ii)Mr Benbow, who was employed from about 23 November 1999 to 5 April 2000,
(iii)Mr Nordstrom, who was employed from about 1 January 1999 to 17 November 1999, 28 November 1999 to 14 December 1999 and 10 February 2000 to June 2000;
(b)Mr Ivory, Area Manager, North Queensland Area, CASA;
(c)Mr Herbert, Flying Operations Inspector, Townsville Area office, CASA; and
(d)Mr Kippen, Team Leader, Flying Operations, North Queensland Area office, CASA.
There is no dispute as to the following facts:
(a)Mr B. McBain was born on 2 April 1968. He was issued a CPL (H) ARN 404564 on 26 February 1987;
(b)Mr McBain's parents and his brother Shaun McBain are the directors of McBain Holdings Pty Ltd;
(c)Mr McBain was the operations manager of McBain Holdings. He was not the Chief Pilot or a director of the company. He was the only person employed by McBain Holdings, other than the pilots, who had an aviation background;
(d)Mr McBain had no CASA recognised technical qualifications concerning aircraft engineering. He was not a licenced aircraft maintenance engine ("LAME");
(e)the company operated four Hughes helicopters from Taiwanese/Chinese vessels for tuna spotting. These aircraft were:
(i)US registered N457TH from 1 January 1999 to 19 September 1999. It came on to the Australian Register as VH-MBM on 20 September 1999 and flew until September 2000;
(ii)US registered N8352F from February 1999 to 4 November 1999. It came on to the Australian Register, as VH-MHM on 5 November 1999 and flew until April 2000;
(iii)VH-AKV from 22 October 1999 to June 2000; and
(iv)VH-MHQ from May 2000 to September 2000.

OPERATIONS WITHOUT AN AOC

McBain Holdings operated four Australian registered helicopters in aerial operations from January 1999 to September 2000. Mr McBain did not deny that those helicopters were all operated without an AOC, in breach of ss 27(2)(c) and 29(1) of the CAA. He explained in evidence, and in paragraph 14 of his affidavit (A1), that he understood fish spotting to be a private operation and thus believed no AOC was required. He said he did not realise that it came within the definition of "aerial work" in CAR 206. He explained the basis of his belief as his knowledge of the operation of other Australian companies engaged in the same work. Mr McBain also said that he thought that as the aircraft were leased to the fishing firms, and as they were flying outside Australian territory and not carrying paying passengers, he believed an AOC was not necessary.
Mr McBain said that after he was alerted to the fact that an AOC may be required, he made enquiries about an AOC in February 2000 and sent a letter of intent to the North Queensland District Manager, CASA, on 18 April 2000 (Tdocs p271) and a further letter on 10 May 2000 (T docs p275). The first McBain Holdings helicopter to come onto the Australian Register did so on 20 September 1999. From that date an AOC was required. In answer to a question, Mr McBain said he was unaware of the requirements and conditions for the issue of an AOC as set out in ss 27(2)(c) and 29 of the CAA.
It is unfortunate that when CASA received the letters of 18 April and 10 May 2000 (Tdocs pp271-275), and became aware that McBain Holdings may have been conducting an aerial operation without an AOC in breach of the CAA, Mr McBain was not advised of CASA's concerns.
The Tribunal finds McBain Holdings operated helicopters in aerial work operations without an AOC. Tuna spotting falls under the head of "aerial spotting" in CAR 206(1)(ii) and the Tribunal considers Mr McBain, as the operations manager of McBain Holdings and with his aviation background, should have been aware of this regulation. The Tribunal also considers he should have been aware of sections of the CAA dealing with AOCs. Furthermore, as it is evident that Mr McBain knows there is such a document as an AOC, it would have a responsible action by Mr McBain to have sought advice from CASA before venturing into the unusual operation of tuna spotting remote from Australia with Australian aircraft.
On the other hand, even when Mr McBain did, belatedly, make enquiries of CASA as to whether or not an AOC was required, he did not receive a clear answer. Mr McBain produced a note recording a telephone conversation he had with Mr Herbert of CASA on 23 February 2000. Mr Herbert said he did not discuss tuna spotting with Mr McBain but he said if he had received such an enquiry, he would have referred it on to Mr Kippen, the team manager. There is confirmation of Mr McBain's evidence at Tdocs p278, where Mr Spencer, a CASA officer, has noted, at paragraph 1, that a package for the initial issue of an AOC was sent to Mr McBain on 25 February 2000.
We are concerned that when CASA was alerted to the possibility that McBain Holdings may have been running its tuna operations without an AOC (Tdocs p273) priority was given to investigating that possible breach of the CAA, rather than to advising Mr McBain of the requirement to have an AOC. We consider that CASA's safety responsibilities would have been better served by ensuring that the possible breach of s.27(2)(c) of the CAA was corrected as soon as possible, so that future flights would have been in accordance with the safety scheme required by the legislation.
OPERATIONS WITHOUT MAINTENANCE RELEASES
Mr McBain admitted that he, as operations manager, permitted pilots to fly helicopters VH-MHM and VH-MBM without maintenance releases. He said he believed the aircraft were safe to fly.
(i)VH-MHM
This helicopter was flown by Mr Benbow without a maintenance release from 23 November 1999 to 5 April 2000 when it was returned to Wewak In Papua New Guinea, and ceased to fly on tuna spotting operations. It was previously on the American Register and came on to the Australian Register on 20 September 1999 but never obtained a Certificate of Airworthiness which would have required a full inspection by a LAME. Such a certificate is required for every aircraft on the Australian Register. Until a Certificate of Airworthiness is obtained a maintenance release can not be issued.
Mr Benbow, who at the relevant time, held a US Federal Aviation Administration (FAA) A&P licence, is not a LAME. He advised McBain of his US qualification (T docs p65). He performed maintenance on the helicopter marked N8352F outside of US territory. He did not know the aircraft had come on to the Australian Register (on 5 November 1999). He faxed to Mr McBain on Christmas Day 1999 a detailed message which included the questions (Tdocs p65):
Can I fly this machine on my FAA licence? Is it registered in Aust If so what is the rego.

Those questions were never answered.

Mr McBain relied on a runout sheet (BEM 7) in respect of MHM. There is no evidence as to when, if ever, that document was sent to MHM. We accept Mr Benbow's evidence that he had no information as to component life. That evidence is consistent with his fax of 29 November 1999 shortly after he took over MHM when he wrote "still cannot find any sign of any log books etc, so where do we stand in regard to 300 hourly and component life etc?" (Tdocs p71).
(ii)VH-MBM
This helicopter was also originally American registered and came onto the Australian Register on 20 September 1999. It did not obtain a Certificate of Airworthiness until four months later on 19 January 2000. During that period there was no maintenance release. It was flown during that period by Mr Nordstrom until 17 November 1999 and then by Mr Michael. The fact that a Certificate of Airworthiness and maintenance release were required was known to Mr McBain, but because of the cost of flying engineers to the helicopter (Tdocs p366) he did not obtain a maintenance release until 19 January 2000 in Guam (Tdocs p205). Mr Michael noted (T docs pp.205-208) that the 100 hours for the next periodic inspection ran out on 16 March 2000, (actually between 107.8 and 109.9 hours were flown). No further maintenance release was issued, and Mr Michael flew the helicopter without a maintenance release from 21 March 2000 to 16 April 2000 for a total of 64 hours. He then handed the aircraft over to Mr O'Callaghan without a maintenance release.
Mr O'Callaghan stated when he flew VH-MBM, from 24 April 2000 to 14 June 2000, it did not have a maintenance release.
At paragraph 74 of his affidavit (A1) Mr McBain said he had sent a runout sheet (BEM 6) to Mr Nordstrom when he was flying MBM in February or March 1999. MBM was not Australian registered at that time. We have therefore not considered the evidence as to that period. Mr McBain did not produce the originals of any runout sheets sent to the pilots after MBM was placed on the Australian Register. Such runout sheets require constant updating. Both Mr Nordstrom and Mr O'Callaghan said they had not received component runout sheets. Mr O'Callaghan did send faxes to Mr McBain asking for detail as to component runout times or pointing out his problems in not having that information (Tdocs p378). It was a factor leading to Mr O'Callaghan's problems with his Captain (Tdocs pp195-196).
(iii) VH-AKV
This helicopter was on the Australian Register and had a Certificate of Airworthiness at all relevant times. It had a maintenance release when Mr Michael commenced ferrying it from Cairns to Rabaul in October 1999. Mr Michael flew AKV for about one month and then when he went to MBM Mr Nordsrom took over AKV by 23 November 1999 (R7) for a brief time. It was then flown by Mr O'Callaghan from 18 December 1999 to 22 February 2000. Mr Nordstrom then took over on 10 February 2000 and flew it until June 2000.
Mr Nordstrom said AKV did not have a maintenance release when he took it over. At that time it had done the ferry trip from Cairns to Rabaul and had then been flown by Mr Michael for approximately a month. He said he never saw a maintenance release for it or for MBM which he flew for most of 1999.
Mr O'Callaghan said in an interview with a CASA officer on 30 August 2000 that AKV had no documentation at all "Nil absolutely Nil . . . No Maintenance release? . . . No, No, nothing" (Tdocs pp190-191 and 226). In another interview on 23 November 2000, he stated AKV had no documentation but it had a flight manual "but MBM didn't" (Tdocs p226).
(iv) VH-MHQ
There was no evidence as to this helicopter. There was no evidence that it was ever flown by Mr Nordstrom, Mr Benbow, Mr O'Callaghan or Mr Michael.
(v)Findings as to maintenance releases
There is no dispute about the fact that MHM and MBM flew without valid maintenance releases. MHM never had a maintenance release and MBM flew for four months as an Australian registered helicopter without a maintenance release. It then flew for two months on a release dated 19 January 2000 before the release expired on hours on 16 March 2000. After this it flew without a release until grounded because of fuel contamination. There was no new maintenance release until 8 August 2000.
As to AKV we find that there was no valid maintenance release after the one which was valid when Mr Michael did the ferry flight to Rabaul. We accept Mr Nordstrom's evidence that there was no maintenance release when he took it over in November 1999. He then flew it for about 35 hours for the period November to 14 December 1999 (Tdocs pp119-122) and then from February to June 2000 (Tdocs pp123-133). Mr O'Callaghan flew VH-AKV for 81 hours between 16 December 1999 and March 2000 (Tdocs p190 and pp215-222). We find there was no maintenance release for VH-AKV by the time Mr Michael handed it over to Mr Nordstrom.
As there were no maintenance releases for the aircraft for the periods set out above, time in service, maintenance performed and defects could not be recorded on a maintenance release as required under CAR. Had there been maintenance releases and log books as required, there would have been no need for the pilots to keep the detailed records of maintenance performed and hours flown which they provided to CASA.
In his affidavit (A1) Mr McBain gave details of the issue of maintenance releases for VH-MBM on 19 January 2000 and 8 August 2000 (A1 paras 58 and 59). However, he gave no details of any issues covering the period 16 March 2000 (when the 19 January 2000 issue reached its 100 hours) to 8 August 2000. The General Manager of Hoffman Helicopters who on 19 October 2001 found the maintenance release for VH-MBM (Tdocs p429) gave no details as to the date of issue of this maintenance release. It could have been the 8 August 2000 issue or even a later issue.
Mr McBain in his affidavit of 9 May 2002 swore as follows:
46.Because the helicopters were out at sea, between 2000 and 10,000 miles from Australia, McBain Holdings Pty Ltd as the operator of the aircraft did not have access to them, and had to place considerable reliance on the pilots who had all represented that they were also qualified aircraft engineers, to attend to maintenance diligently.
47.I note that in document T58 CASA points to what it asserts re various maintenance shortcomings with three of the four aircraft operated by McBain Holdings Pty Ltd in the Pacific. To the extent that the allegations are correct, they are evidence of shortcomings in the conduct of the pilots (who had represented that they were appropriately qualified aircraft engineers) in the recording of time in service, the performance of required maintenance, and the certification and recording of required maintenance. That is, the CASA analysis at T58 shows the extent to which the three New Zealand pilots (Nordstrom, O'Callaghan and Benbow) were in breach of their contracts of employment with McBain Holdings Pty Ltd.
48.It was not until well after the operations in the Pacific by McBain Holdings Pty Ltd had ceased that I learned that the pilots had been less than diligent in performing their duties as pilots (and as 'engineers'), and as parties contracted to McBain Holdings Pty Ltd. During their period of operation in the Pacific between January 1999 and September 2000 I was unaware of their unlawful conduct. I certainly did not direct any such conduct, nor did I have any reason to suspect it. McBain Holdings Pty Ltd would have terminated their employment immediately if it had been aware of their conduct.
49.It there was any threat to safety, it is the three New Zealand pilots (Nordstrom, O'Callaghan and Benbow) whose conduct constituted the threat, not my conduct.
We find that evidence to be dishonest and deliberately misleading. As there were no maintenance releases for the helicopters the pilots could not have complied with the statutory requirements except by refusing to fly the helicopters at all. We find that there was a threat to safety as a result of Mr McBain's conduct in expecting pilots to fly helicopters which did not have Certificates of Airworthiness and maintenance releases. Mr McBain as an experienced pilot should have known that every Australian registered helicopter required a Certificate of Airworthiness and a current maintenance release and log books at all times, even if no AOC had been required.
It being admitted by Mr McBain that there were no maintenance releases for VH-MHM and VH-MBM, it necessarily follows that daily records on that document could not be maintained. We find that the position was the same in respect of VH-AKV. In early May 2000 Mr Benbow, when he saw Mr McBain in Papua New Guinea, offered details of the hours he had flown in N8352F/VH-MHM. Mr McBain said he did not need the hours (Tdocs p38). Mr McBain did not deny that in his evidence. He suggested that the reason he did not need the hours was because they were recorded on the Hobbs meters, but there is no evidence that the hours recorded on the Hobbs meters were ever transferred to maintenance releases or logbooks.
AIRCRAFT WITHOUT CERTIFICATES OF AIRWORTHINES
Mr McBain admitted helicopters VH-MHM and VH-MBM, at certain times, did not have Certificates of Airworthiness . VH-MHM, formerly US registered N8352F, came on the Australian Register on 5 November 1999. No application was made by Mr McBain to have a Certificate of Airworthiness issued for this aircraft (hence no maintenance release could be raised). The helicopter was flown by Mr Benbow from 23 November 1999 to 5 April 2000 without a Certificate of Airworthiness (and maintenance release) on instructions from Mr McBain. Mr McBain said the aircraft was safe to fly and that it had flown that time without accident or incident. VH-MBM, formerly US registered N547TH, was flown by Mr Nordstrom from January 1999 to 17 November 1999 and by Mr Michael from 18 November 1999 to January 2000 without a Certificate of Airworthiness (and maintenance release), again on instructions from Mr McBain. (VH-MBM came on to the Australian Register on 20 September 1999 and a Certificate of Airworthiness was issued on 19 January 2000.)
We find that it was the responsibility of Mr McBain, as the operations manager of McBain Holdings, to ensure that all aircraft operated by the company had Certificates of Airworthiness and maintenance releases. It is no answer to the breach of that obligation to say that the aircraft were safe or reliable. The object of the CASA legislative scheme is to ensure, so far as possible, that all registered aircraft are safe and are maintained by LAMEs in such a way as to ensure that they remain safe. The fact that none of the helicopters was involved in an accident does not necessarily mean that they were safe to fly.
The pilots' communications to Mr McBain show that there were many occasions when safety issues arose. Luckily, no one was injured and no damage occurred, but those sort of incidents should not have happened. Some examples of the matters to which we refer are the damage to the tail rotor gear box, the Ross Radio failure and damage to the floats. They are not the only safety issues raised in the T documents.
(i) damage to the tail rotor gear box of VH-MBM
Mr Nordstrom repaired a tail rotor gear box housing on VH-MBM. Mr Nordstrom, made an entry in his phone/fax logbook on 19 October 1999 as follows (Tdocs p340):
Date Fax Details.
19/10 Fax Shaun REF T/R TRANS.
I phoned Bernie on the 19/10/1999, spoke on his answerphone and left a message advising the situation with the tail rotor and that I was seeking their advice regarding whether I should fit the spare pitch housing assembly which was in the storeroom of the ship.

He added in his statement to CASA made 15 August 2001 (Tdocs pp339-358):

I made this call in the morning & left the message. (19-10-99).
I waited all day for a response from either Bernie or Shaun but heard nothing.
The next morning (20-10-99) I had still heard nothing so, given pressure applied to me by the Captain of the ship (why is the helicopter not flying), I elected to start stripping the tail rotor blades & the pitch housing assembly.
It was about lunchtime or just after when I received a facsimilie [sic] from the Airways Hotel.
I have already provided a copy of this fax but have enclosed another copy for your information.

The fax time is shown as 11:13. on 20 October 1999.
This fax, from what I understand, was in direct response to advising Bernie McBain of my situation.
I have spoken to Jim Benbow and he has told me that he was present with Bernie and actually sighted this fax, either before or after it was sent to me on 20 October 1999.
In my earlier statement I also mentioned that I sent a fax to Bernie stating what had happened and was hoping to get some guidance on how to go about putting the spares on.
That fax was sent to Shaun McBain on the morning of 10-10-1999.
I would have sent it in a matter of minutes after leaving a message on Bernies phone.
I have logged this fax in my phone/fax log book as follows:
Date: Fax Details.
19/10. Fax Shaun REF T/R Trans.
After receiving the fax from Bernie on 20-10-99, I was really hurt with the wording of the fax, considering the effort that I had been putting in on behalf of them.
I virtually felt like chucking the whole thing in.
When I received the fax the aircraft had the tail rotor blades off and the pitch housing assembly removed, as per the maintenance manual for the aircraft.
About one to two hours after I received this fax Bernie rung the boat and spoke to me.
He asked me if I had received his fax and I told him yes. I had.
Bernie replied (quote) "What did you think of the fax?"
I told him that I thought it stunk, because of the effort I was putting in with McBain Helicopters to keep everything running.
Within that conversation Bernie asked me what the problem was – whats happening.
I told him that I had had a chip light plus the tail rotor assembly had flown to pieces. I told him that upon checking the tail rotor chip detector I had found that the metal was still within limits in other words I did not have to pull the gearbox (tail rotor) off straight away. I also told him the aircraft maintenance manual required that I simply monitor the situation.
Bernie said to go ahead and put the spare pitch housing assembly on the aircraft, track and balance it and added that I had been doing a good job.
The phone call concluded shortly after & I continued working on the machine.

The fax Mr McBain had sent to Mr Nordstrom on 20 October 1999 is at p92 of the T documents. it reads:
Nord. Why in the f . . . h . . . are you changing the T/R gearbox. I have had no reports of chip lights or any other problem. You have a maintenance manual on the boat. Change it as per the F/M instructions. You get paid big money for being out there so now you need to fix it. No fly no pay. What's wrong with it. How many chip lights have you had. Tell me the problem. My fax tomorrow afternoon is PNG . . . Attn: Bernie Mc. Let me know what's wrong with it. Thanks for 2 minutes notice.
Mr McBain, at paragraphs 95 and 96 of his affidavit, commented on that incident as follows:
95.CASA appear to have placed some reliance in its decision on a fax I sent to Nordstrom on 28 October 1999 (page 92 of the T documents). I heard from a message left by Nordstrom on my telephone message bank that MBM had suffered a catastrophic tail rotor failure and that the aircraft was damaged. I tried to call Nordstrom and could not get hold of him. I sent him a fax asking what had happened. He replied with a fax which said that the tail rotor box had disintegrated and that he was lucky to be alive. Nordstrom also said that he had changed the tail rotor gear box. I then sent him the fax of 28 October 1999 (92)
96.A day or so later I was able to contact him by telephone, and I asked him for details of what happened, and specifically how many chip light indications he had experienced. He informed me he had experienced 12 chip light indications over a period of about 3 days and that he kept flying. A prudent helicopter pilot would land as soon as possible after experiencing the first chip indication and ensure an engineering check was carried out. I could not understand why he flew through 12 chip light indications. The danger which such conduct represented was the reason for the language and tone of my fax of 28 October 1999. I did not want a repeat of this conduct.
Mr Anastasi cross-examined Mr McBain about that account (trans. pp92-93):
MR ANASTASI:   Now, at page 96 - sorry, paragraph 96 of your affidavit you say that this fax was sent to the pilot after you say that he told you that he had 12 chip light indications. But the fact is, at the time that you sent the fax you didn't know what had caused the problem with the aircraft, did you? --- Well, I - no one had told me that had been having chip light problems and, you know, to find out after the fact that you have had 12 and still flying, I find that very - people are very lucky that there was no one injured or anything like that or, you know.
Well, Mr Nordstrom states in his statement at page 343 that, about halfway down:
"Upon checking the tail rotor chip detector he found that the metal was still within limits. In other words, I did not have to pull the gear box, tail rotor off straight away. I also told him the aircraft maintenance manual required that I simply monitor the situation."
He says that you said that:
"to go ahead and put the spare pitch housing assembly on the aircraft, track and balance it."
And you added it that he:
"had been doing a good job."
Now, do you recall that conversation? --- This is after the fact - - -
Yes? --- This is after it happened.
Yes, that is correct? --- No, because I was ropable over the 12 chip lights, not being advised.
MRS DWYER:   Where did the 12 chip lights get a mention?
MR ANASTASI:   Well, Mr McBain - - - ? --- This is what Nordstrom told me a couple of days after all this had transpired.
I spoke to him a couple of days after and he was back flying and went through it with
him. That is when I found out about the 12 chip lights.
MRS DWYER:   He doesn't mention anything about the 12 chip lights in his statement, does he?
MR ANASTASI:   No? --- He says something about chip lights.
MRS DWYER:   Yes, a chip light? --- Yes. Well, you don't just get one chip light and then change a tail rotor gear box, Mrs Dwyer, it is - see, on page 343 he says:
"I told him that I had a chip light plus the tail rotor assembly had flown to pieces."
When Mr Nordstrom was asked whether he had had 12 chip lights before the incident with the tail rotor gear box he replied (trans. p454):
Yes, well, I don't know any pilot that would want to be flying after three or four chip lights let alone 12, so yes. There is a few things I could say but I better not say it over the phone.
. . .
Did you advise Mr McBain that you had had 12 chip lights? --- I told Mr McBain in a fax and I asked the same message that I left in Mackay at his brother's that what had happened and the chip light had come on in that incident, yes.
Yes, but did you ever say that you had 12 chip lights? --- No way. No way. I have never had 12 chip lights come in to do with any problem and I never would. I might go to three but then again after the first one I would be going by what the book says. But there is no way I would know any pilot that would let 12 chip lights come on with the same problem.
(ii)the failure of the Ross radio
Mr O'Callaghan on 24 December 1999 sent a fax to Mr McBain saying he had no radio and asking for someone to meet the boat and have a look at the radios. This never took place. Mr O'Callaghan described an incident which happened on his birthday 15 February 2000 when he was flying VH-AKV. He said (trans. p294):
And so what occurred on your birthday? --- Yes, after about 1.6 hours flying, we had, sort of - we were near close proximity to the ship somewhere, but we, sort of - the radio spotter assured me that he knew where it was. And when we went to where we - where he thought it was, it wasn't there, and I only had, like, after about 1.9 hours when I – after about 1.8, had about a hundred pound of fuel left, and then we decided to go to another ship, land at sister ship, Chiti [Chi Tai] 816, and score some gas off them because we were getting, well, quite - still quite a lot of fuel, like, half-an-hour's fuel, but half-an-hour isn't much if you are going the wrong way.
So in terms of the radios that you had on board and the problems with you described earlier, how did those problems cause you not to be able to locate the ship? --- If the Ross Radio was going, I could just a press a button and it would go tell me where the ship was.
So when you are saying "going", are you referring to when the GPS drops out because satellites are out of - are not available? --- No, there was some mechanical fault - no, not mechanical, there was some sort of electrical fault or some sort of sensing that had - yes - - -
So you flew - so where did you fly to - where did you elect to fly to then? --- To Chiti's 616 sister ship, Chiti [Chi Tai] - - -
And that was another ship that you were normally operating from at this time? --- No one was on it. It was the one where - it is confusing. This is where - the one where Max was operating before he went to Winfar 666, so they knew the helicopter.
So there was no helicopter on that boat - - -? --- No, but there was fuel.
Now, with regard to this incident, did you raise it with Mr McBain? --- It was mentioned, yes.
Well, how - when did you do that? --- It was mentioned maybe in a phone call we had from the ship, because Nord had - Nord was on the ship also at that time, but Nord had hurt his hand, so I was flying for him, and, yes, Bernie said that was the right decision, it was the pilot's decision to make that choice. So - yes, and I also thought it was the right decision at the time, too, because - yes, no fuel is no fuel.
This was the aircraft which you had been promised that a radio technician would correct the problems? --- Yes.
And did that occur after this incident? --- Yes, yes.
Well, how long after did that occur?
MRS DWYER:   What does "that occur" mean?
MR ANASTASI:   I might rephrase it, sorry, Senior Member.
MRS DWYER:   Do you mean did a radio technician come or - - -
MR ANASTASI:   Yes. Did a radio technician attend on AKV to correct the problems? --- No.
So up until you left AKV in March 2000, those problems had remained; is that correct? --- Yes. And when I seen the helicopter when I fixed it for the final time in Truck [Truk] one day for Gordon, it still had the same problems.
In cross-examination Mr Langmead suggested that Mr O'Callaghan had been incompetent in that he had not kept a written log on a knee pad as to where he was going and had relied solely on the radio. Mr Langmead said he should have used "deduced reckoning" to find his way back to the ship without the use of the radio.
Mr McBain in his affidavit at paragraph 83 said:
O'Callaghan was sacked by the ship's captain in late May early June 2000. The reasons relayed to me by the Taiwanese interpreter included his inability to do maintenance (O'Callaghan confirms this at page197 of the T documents) and incompetence as a pilot.
In his evidence as to the failure of the Ross radio on AKV, Mr McBain again said the problem was due to Mr O'Callaghan's lack of skill (trans. p119):
Max Michael went up there and within 30 seconds had the Ross radio working. So in the end it was a lot of finger trouble on the pilot's point of view and the captain's point of views with these Ross radios.
That analysis does not stand up when Mr Nordstrom's evidence is taken into account. Mr McBain has never criticised his skills as a pilot. He employed Mr Nordstrom for almost 18 months. On one occasion Mr Nordstrom was asked by Shaun McBain to cut short his leave as the Captain of one of the ships said he would cancel his contract with McBain Holdings if he did not get Mr Nordstrom back as the pilot on his ship. Mr Michael said that Mr Nordstrom was very competent at working on helicopters. He said he considered him far more "qualified and experienced than perhaps the licensed one, Benbow" (trans. p201).
Mr Nordstrom flew AKV for a short time before Mr O'Callaghan took it over. He sent a fax to Mr McBain on 23 November (R7) saying:
I WOULD LIKE TO TRY AND GET THIS ROSS UP AND GOING O.K. BEFORE I GO HOME FOR PAUL AS IT COULD END UP GETTING A BIT SCARRY FOR HIM TRYING TO GET BACK TO THE BOAT IF WEATHER ISNT THE BEST.
In evidence Mr Nordstrom was asked to describe the state of the radios on AKV. He said (trans. p452):
I know that on the pilot side you could hardly even hear at all and the co-pilot's side, well, I am only going by what the observer because again the captain was getting - he was getting really pissed with the radios because he couldn't talk to the observer and the observer could hardly even hear him most of the time. I know it was like it when it left Cairns because there was an incident at Cairns Airport ..... aircraft when it flew out of Cairns and when I got on it, it hadn't changed and yes, to me they were a real worry. I can remember sending Bernie a few faxes to do with the Ross radio and things like that. The pilot's side I am not really worried whether I talk or not but I am worried that the co-pilot can't talk or that Ross radio doesn't work. You have got to have your "one in 60" rule down pretty good to get you back in the ball park if you are going out 60 miles from the boat and some of that Ross radio is not working too good and the captain has got to be onto it. Yes, to me it worried me and I know I always remember Paul having a good scare there one time on the machine just because of that very fact.
(iii)the floats on VH-MBM
Mr O'Callaghan in his statement (Tdocs p229) described a problem with the floats on MBM. He said there were hundreds of patches because they were just worn out. He said "if it went for a 20 minute flight . . . the helicopter would shake [on landing] because the floats had deflated".
We find that because of the failure to ensure that there were current maintenance releases there was a threat to the safety of the pilots and crew of the helicopters and also the ships from which they were working. We find further that as to the suggestion that Mr Nordstrom had failed to act on 12 chip light warnings and that Mr O'Callaghan's problems in navigating were solely due to his inexperience as a pilot, Mr McBain was attempting to mislead the Tribunal and to avoid responsibility for his own defaults which threatened the safety of air navigation.
AUTHORISING UNLICENCED PERSONS TO CARRY OUT MAINTENANCE
Mr McBain said the pilots employed by McBain Holdings told him they were qualified engineers and that they had changed or would change their US FAA A&P mechanics licences (Benbow) or their NZ licences to Australian aircraft maintenance engineer ("LAME") licences (see A1 paragraphs 80-82 O'Callaghan, paragraph 84 Nordstrom, paragraphs 88-89 Benbow). Mr McBain said in evidence that he had arranged that the pilots would certify their work on the helicopters on behalf of Tadgell Aviation, a maintenance organisation based in Caloundra, Queensland. He said (trans. p99 and 225):
Well, you are not suggesting that these people have any connection with Tadgell Aviation, are you? --- Well, they were supposed to be on their - not employees' list but able to certify work for on behalf of Tadgell.
. . .
That he would be just looking at Tadgell's and work under their authority to start with and then basically to set up a workshop approval for McBain Holdings.

Mr McBain did not call evidence from Tadgell Aviation as to whether they had ever agreed to any such proposal. He did not interview Mr Benbow and Mr O'Callaghan before employing them for the tuna spotting, and he did not check the Australian qualifications of any of the pilots employed by him. He said he employed Mr Benbow as a LAME to set up the McBain Holdings maintenance organisation. He stated in his affidavit (A1) that the first he knew they were not qualified to maintain the helicopters was when he read the T documents.

(i)Mr Benbow

Mr Benbow holds a FAA A&P licence and is now a licensed New Zealand aircraft engineer. He said he advised Mr McBain of his US qualification (T docs p65), but never told Mr McBain or anyone else that he was a NZ LAME. He said he told Mr McBain he was in the process of becoming a NZ LAME. He also said Mr Shaun McBain had known he was not yet a LAME, and at a meeting in Wewak in April 2000 had asked him when he would have his engineer's licence finished (trans. p385).
Mr Benbow, in his statement (Tdocs p32), said that he replied to an advertisement placed by McBain Holdings in 1998 requesting pilot mechanics for tuna boat operations. He said that he had served as an aircraft technician in the Royal New Zealand Air Force for 20 years and that he holds an FAA A&P licence and was in the process of getting his New Zealand aircraft engineer's licence. He was accepted by McBain Holdings and started with approximately one month of unpaid training on helicopter AKV which was then being flown by Mr Michael. Mr Benbow said that he had no involvement with aircraft maintenance until he started being paid on 23 November 1999 when he started flying MHM. As set out above, that aircraft was carrying US registration marks as N8352F at the time. AKV did have a maintenance release from 5 October 1999 following work done on it at Cairns by National Utility Helicopters.
Mr Benbow said that after a few days he left the boat which had AKV on it and went to another boat where Mr Nordstrom was flying VH-MBM.
Mr Benbow started as a paid employee on 23 November 1999 when he started flying helicopter MHM. So far as he knew at the time it was US registered. As soon as Mr Benbow arrived on the ship to fly MHM he started faxing Mr McBain full details of maintenance problems such as a dim chip light, which he could not correct, and a torque gauge which was reading high. By Monday 29 November, Mr Benbow faxed Mr McBain that he was "a bit shocked at the amount of corrosion around the underside", the fact that a belly frame was also corroded, a problem with the co-pilot's door and added "I would suggest that you should have a look for yourself in the not too distant future" (Tdoc p71). He faxed "I have no maintenance information on electrical or instrument systems" and then, "still cannot find any sign of logbooks etcetera so where do we stand in regard to 300 hourly and component life". He then pointed out the lack of adequate tools.
On 7 December 1999 Mr McBain faxed to Mr Benbow "Jim I need all you[sic] licences, medical and hours of now and also statement signed by you stating that you have not had any accidents in the last five years (Tdocs p66). In response to that Mr Benbow faxed him details of his licences (Tdocs p65). There is no Australian or NZ LAME licence specified. The only mechanic's licence is the FAA A&P issued June 1999. Mr Benbow added, "can you fax me a list of medical examiners as I need to get my Australian medical renewed next month. Or can I fly this machine on my FAA licence. Is it registered in Australia? If so what is the rego" (Tdocs p65). He also pointed out "we probably need to think about a 300 hourly as I have no idea what is due when without logbooks" (Tdocs p65). That was sent Christmas Day 1999.
There was no answer from Mr McBain as to whether the machine was on the Australian Register or as to the 300 hourly. Nor did Mr McBain query the lack of details as to an Australian or NZ LAME licence. On 31 January 2000, he faxed Mr Benbow reproaching him for the fact that the shipowners would not make a payment for the helicopter as it was not operational. He added "I know there is a problem with the Ross Radio but it should still be able to operated. You should be able to borrow a Ross Radio off the ship". He said "you will also have to check the power source on the ship for the Ross Radio as this is the second radio it has blown up. Will have a run out sheet to you shortly". Mr Benbow's evidence was that the runout sheet, which would have shown the time life expiry periods for the components on the aircraft, never arrived.

Mr Benbow denied that he had ever advised Mr McBain or Mr Michael that he held a NZ aircraft maintenance engineer's licence. He said as soon as he got on the ship he did a 100 hourly on the helicopter, which carried US registration marks. He added (trans. p380) "I kept expecting them to fill me in with the details, but I did that to sort of have a starting point". Mr Benbow said (trans. p381) that he was informed in January 2000 that his helicopter was to be replaced. He understood it was going to have a lot of work done on it and to be brought onto the Australian Register.
Mr Benbow also said both he and the ship's Captain were concerned about component times on the helicopter he was flying. The radio operator asked him what the component life times remaining were, within an hour of him arriving on the boat.
We find the fact that Mr McBain did not query the lack of NZ or Australian mechanic's licence details in the fax from Mr Benbow on Christmas Day 1999 supports Mr Benbow's evidence that he never claimed to have those licences. Mr McBain said he did not notice they were omitted. We reject that evidence as not credible. He had asked for all licences and we find he would have checked to see that he had been given details of all licences.
(ii) Mr Nordstrom
Mr Nordstrom flew for McBain Holdings in US registered N457H from 1 January 1999 to 19 September 1999, and then, when it came on to the Australian register as VH-MBM on 20 September 1999, until 17 November 1999. He also flew VH-AKV for the periods 28 November 1999 to 14 December 1999 and 10 February 2000 to June 2000.
Mr Nordstrom stated he flew a trial trip with Hoffman Helicopters under the supervision of Mr McBain out of Guam. Mr McBain checked him out as a suitable pilot for Hoffman's fish spotting operation. However, Steve Hoffman decided that he was not suitable to fly with Hoffman's because he had no engineering qualifications and therefore was not cleared to maintain the helicopter and be employed as a pilot/mechanic (trans. p440). Mr Nordstrom said he then returned to New Zealand. When he telephoned the ship to ask Mr McBain, who was still on the boat, to send his tools back, he explained, "I am back in New Zealand and Steve (Hoffman) doesn't want me" (trans. p440). Mr Langmead objected to Mr Anastasi asking whether Mr McBain had asked why Mr Nordstrom did not get the job with Hoffman's. When the Tribunal allowed the question, Mr Nordstrom said he told Mr McBain that it was because he did not have an FAA A&P licence and so could not be a mechanic pilot (trans. p442). Mr McBain offered him a position as a helicopter pilot and doing maintenance under a contract he had just signed with a fishing company. Mr Nordstrom never signed an employment contract with McBain Holdings.
Mr Nordstrom said that Mr McBain told him that he flew Black Hawks and did his engineering ticket. Mr Nordstrom said he believed this, and understood that Mr McBain was supposed to do the major or "heavier" maintenance work or have someone qualified to assist or supervise the work (Tdocs p75 and trans. p445). He added, "I am sure that Bernie [Mr McBain] would have fired me if I had told him I was not qualified to do the maintenance. It was just expected of me" (Tdocs p75). Mr Nordstrom kept hand-written worksheets as there were no logbooks for the aircraft (Tdocs pp134-138). Examples of maintenance carried out by Mr Nordstrom on Australian registered aircraft, but not authorised under Schedule 8, taken from T documents pp160-178 are:
VH-AKV maintenance of main rotors ("as was instructed by Bernie") p160,
replaced tail rotor bell crank bearing p161;
serviced over-running clutch, tail rotor, igniter and fuel nozzle p162.

Almost every page carries entries of maintenance performed by Mr Nordstrom which are not allowed under Schedule 8.

We prefer the evidence of Mr Nordstrom on this issue to that of Mr McBain. We accept Mr Nordstrom's evidence that he told Mr McBain why he did not get the position with Hoffman's for which Mr McBain had recommended him. We also accept his evidence that while he told Mr McBain he was mechanically minded (trans. p440) and prepared to do the general servicing on the helicopter he was flying when it was at sea, he never claimed to have a NZ LAME certificate or a FAA A&P licence. He believed Mr McBain was a LAME and would do or supervise the major maintenance.
We find that the comment Mr Nordstrom made to the effect that Mr McBain would have fired him if he had told he was not qualified to do the maintenance expected of him, did not mean that he had told Mr McBain that he was so qualified. What he meant was that if he had refused to do the maintenance work expected of him, giving his lack of qualification as the reason, he would have been fired. He said that Mr McBain knew he was not "an engineer at all". When he just "came out", Mr McBain showed him how to do a 100 hour service on a helicopter, "because I didn't know" (trans. p466).
(iii) Mr O'Callaghan
Mr O'Callaghan said he did not tell Mr McBain he was a LAME. He said he explained in a telephone conversation that he was "the same of Nord", meaning that he could do some general servicing or light maintenance but had no maintenance qualifications. He told him he was a fitter and turner and said he had been doing some maintenance at a helicopter company in New Zealand (trans. p296). He said Mr McBain told him that would be adequate to do the lighter maintenance whilst at sea, and when in port Mr McBain would do the heavier maintenance. He said Mr McBain told him he was engineering qualified due to his RAAF background. Amongst other things, he (O'Callaghan) said he fitted feather bearings on both VH-AKV and VH-MBM because both helicopters had developed tail rotor "buzz" . Also he, with Mr Nordstrom, repaired the main rotor blades of VH-AKV which were eroded (Tdocs pp371-373) as ordered by Mr McBain.
Exhibits R2 and R3 are faxes from Mr McBain to Mr O'Callaghan of 7 January 2000 and from Mr O'Callaghan to Mr McBain of 14 June 2000. They are consistent with, and support Mr O'Callaghan's evidence, that he never claimed to be a mechanic and that Mr McBain knew he was not a mechanic. In exhibit R2, Mr McBain instructed Mr O'Callaghan how to do the tail rotor balancing:
As for the tail rotor balancing the only thing I can suggest is make sure you have all the right settings in the chadwick. That is at 103% set the balance to Times 10 and IPS scale to 310 [partly illegible]. At idle 65% N1 set balancer to times 10 and IPS to 210. I have just got a chadwick back from repair so if yours doesn't seem to be working I will get you to borrow Max's or Jim's and get you to send me that one to have repaired. You might even try to change the lead from chadwick to the T/R and also the Volicemeter and see if it works better. Anyway do your best and see what happens. . . . You don't have to fax me once a week just keep intouch I get worried if I haven't heard from you guys in two weeks or so.

In exhibit R3, sent on the last day he flew for McBain Holdings, Mr O'Callaghan wrote:

Dear Bernie. On Sunday I did 0.7 hours & thought I should come back to the boat & get the chadwick out as was getting a medium buzz through pedals. Couldn't balance it Rung Shaun. Pulled blades off & turned bearings. Balanced it Tuesday very early 4am. It then rained all day till 4pm then I had that stuck lead/log damper Rung you. Started raining so I only got the ground run in. Did the Solo this morning. Did 3.3 hours today & was getting that buzz back so gave up as I was only doing a R/H circuit above the fish. The problems they have with MBM is. I can't get R/Radio to work. Capt needs this as he likes to know where it is. I've tried everything. At moment I have installed that new one but still "No Response. He says the radios aren't very clear over 40NM. They say it has a bounce in it. But this is the floats. I'm bloody sure of that. Also he seen the lead/lag incident. It doesn't look good. (paint). Got a funny noise. (I'm not joking) No internal com system no strobe. There is only 1x2m he wants 2. Korean Capt off Sojo Victoria keeps saying change helicopter. This is about all. This afternoon I have completed a total stock take on this boat so you know whats here. I'm VERY sorry I'm bad luck at this Tuna thing. Capt also wants pilots with 5 years fishing experience & mechanic. Will ring you from TRUCK[sic] when I have those parts in my hand. Tomorrow will pull the blades & get them ready. Sorry mate. Stress you don't need. PAUL (emphasis added)

Mr O'Callaghan said that when he was asked to sign a contract for his services with McBain Holdings (blank copy T docs pp89-91) he deleted the words "and mechanic" (p89). This occurred at Wewak, on 24 April 2000. Mr McBain in his affidavit (A1 paragraph 80) said Mr O'Callaghan only signed that contract at Mr McBain's insistence.
We are not satisfied that Mr O'Callaghan did strike out the word "mechanic" when he signed the contract of employment Mr McBain produced at Wewak on or about 19 April 2000. Mr O'Callaghan did not refer to having done so in his statement in the T documents (Tdocs p190). As the contract was never produced by McBain Holdings we cannot be sure on that matter. It may be that Mr O'Callaghan signed the document as it stood, as Mr McBain said, "only at my insistence". The evidence is that Mr O'Callaghan was the only pilot to succumb to Mr McBain's "insistence" and sign that contract. He did so four months after he first flew for McBain Holdings and at the start of his second period of employment.
(iv) Mr Michael
Mr Michael in his affidavit (A2) stated he had no engineering qualifications and that Mr Benbow told him he had an "Australian LAME ticket", that Mr Nordstrom told him he was "an aeronautical mechanical engineer" and that Mr O'Callaghan represented himself to have an engineering licence. He understood Mr McBain had a FAA A&P licence. He never signed a contract with McBain Holdings but he said the contract seemed to indicate engineer duties in addition to piloting. A detailed list of unauthorised maintenance done by Mr Benbow, Mr Nordstrom and Mr O'Callaghan is given at T documents pp382-384. There is no similar list for Mr Michael who was a witness for Mr McBain, but he must have done similar general servicing maintenance on the helicopters AKV and MBM when he was flying them from ships. He said Mr Nordstrom had done the maintenance on his helicopter. Mr Nordstrom said that was not so. He said (trans. p511):
Michael flew over a couple of times and landed on the back of my boat, but with the motor going, because he couldn't stop it for about a minute, but as far as servicing goes it was just a very first initial service to show him how to go through a 100 hour service in October when he first come out.

CONCLUSION

The statement of Mr Shaun McBain, at Tdocs p242, supports the pilots' evidence that they were employed primarily as pilots and were not required to carry out maintenance, but just to keep an eye on things like corrosion. He said that maintenance would be performed at ports by a LAME.
Mr McBain said that his brother had been mistaken in that statement, but Mr Shaun McBain was not called as a witness. We prefer the evidence of the pilots to that of Mr McBain. We find that he was aware of the fact that the pilots were not qualified to do maintenance on Australian registered helicopters when he employed them. We find that he did not enquire as to their qualifications except as to Mr Benbow who told him he had a FAA A&P licence.
We find that in the conversations Mr McBain had with the pilots, when he arranged that they would work for McBain Holdings, he told them that he was a qualified aircraft maintenance engineer and gave the impression that he would have responsibility for the performance of major maintenance on their helicopters. It was only when they commenced their duties that they realised that they were on their own at sea, that Mr McBain was not arranging for any regular maintenance inspections and that he had no interest in the number of hours they were flying. Knowledge of hours flown is the basis of any proper maintenance scheme. In their efforts to fly safely, in spite of the failure of McBain Holdings to arrange for LAMEs to do major maintenance, Mr Benbow, Mr Nordstrom and Mr O'Callaghan kept their own records of hours flown and maintenance performed. The T documents, at p500, record that Mr Michael told Mr Saffrey, a CASA officer, that he had destroyed his log books as he wanted nothing more to do with the industry. Mr Michael denied that in his evidence (trans. p425). He said he understood the conversation was off the record. He agreed that he would have said he wanted nothing more to do with the industry, but he said he did not say he had destroyed his log book. We were not persuaded by Mr Michael's evidence on this issue. He has now obtained a new logbook, having made a statutory declaration that he lost or misplaced his earlier log book (trans. 428).
MAINTENANCE PERFORMED ON AIRCRAFT BY MR McBAIN WHEN NOT QUALIFIED TO DO SO
It is not claimed by Mr McBain that he is a LAME or qualified to perform maintenance on aircraft. In late April or early May 2000, Mr McBain, his brother Shaun and Mr Benbow dismantled VH-MHM and placed it in a container and assembled VH-MHQ which had been shipped in a container. This took place in Wewak. Mr McBain in his affidavit (A1 paragraphs 99-101) stated, referring to VH-MHM:
. . . I took the main rotor blades and skid landing gear off the aircraft, assisted by Jim Benbow . . .
. . . I believed at the time Jim Benbow was a legally qualified aircraft engineer . . .

In relation to VH-MHQ, Mr McBain stated (A1 para 100):

MHQ was shipped to Wewak PNG. With Jim Benbow I removed the helicopter from the shipping container and installed the main rotor and affixed the skid landing gear The rotor installation entailed affixing each rotor blade to the rotor head with three pins which are a quick release design. The task did not even entail the use of a spanner. The whole task (affixing the rotor blades and the skid landing gear) took around 10-15 minutes. An engineer known to me as 'Coops' from Tadgell Aviation authorised me to conduct this rotor fitment.
I was experienced in rotor blade and landing skid gear removal and installation as I had performed these tasks many times during my training with Hawker Pacific, and also under supervision of LAMEs at Tadgell Aviation in Caloundra in Queensland.

The Tribunal finds that Mr McBain, by removing the main rotor blades and skids of VH-MHM and attaching the main rotor blades and skids to VH-MHQ and not being a LAME, performed maintenance not authorised by Schedule 8 of the CARs. Thus we find he breached CAR 42ZC.
The Tribunal notes Mr McBain stated he "believed at the time Mr Benbow was a qualified aircraft engineer". We find that is a misleading statement. The aircraft were dismantled and assembled in May 2000, but on Christmas Day 1999 Mr Benbow, in answer to a query from Mr McBain, in a facsimile only gave details of his FAA A&P licence (Tdocs p65), but made no reference to having any Australian or NZ maintenance engineering qualifications. We find that Mr McBain did not ask for details of any NZ or Australian qualifications because he did not believe Mr Benbow had such qualifications. The fact that the removal and attachment of main rotor blades and skids on the Hughes 500 helicopter may be a relatively simple exercise is no valid reason for Mr McBain to perform this work contrary to the regulations.
SHOULD THE DECISION TO CANCEL MR McBAIN'S CPL (H) BE AFFIRMED?
Having found that each of the breaches or contraventions of the Civil Aviation legislative provisions relied on by CASA is made out, the next issues are:
(i)What is Mr McBain's responsibility for those breaches or contraventions?
(ii)Do they satisfy us that Mr McBain is not a fit and proper person to have the responsibilities and exercise and perform the functions and duties of a holder of a commercial pilot's licence or certificate?
As set out earlier Regulation 5.09 sub-reg 3(a) and (b) provides that in deciding whether an applicant for a licence is a fit and proper person to hold the licence, CASA must only take into account:
(a)any action taken by CASA, or a responsible organisation, in relation to any authority to perform duties essential to the operation of an aircraft during flight time that was given to the applicant by CASA, or the organisation; and
(b)any other matter that relates to the safety of air navigation.
Thus, it is only if the matters set out above "relate to the safety of air navigation" that the decision not to issue a new licence should be affirmed. However the regulation does not require, as Mr Langmead implied, that there be "evidence as to the existence, nature and magnitude of the future threat to air safety which the applicant represents" (paragraph 4(e) and (f) of applicant's submissions).
(i)What is Mr McBain's responsibility for the breaches or contraventions which occurred?
There is no suggestion on the evidence that Mr McBain lacks the flying skills to fly as a line pilot. The issues relating to air safety which are of concern arise from his activities as operations manager of McBain Holdings. Mr Langmead submitted that any faults or breaches of the CAA, CAR and CAOs by McBain Holdings could not be attributed to Mr McBain who was neither a director nor a Chief Pilot of McBain Holdings.
Mr McBain in evidence explained that he was the only person involved in the management of McBain Holdings who had any aviation experience. He confirmed (trans. p248) the statement made by Mr Benbow that the reason he was not a director of McBain Holdings was because of matrimonial proceedings in which he was involved (Tdocs p32). He said that his parents and brother who were the directors of the company had supported him in his venture of running a business providing helicopters and pilots for tuna spotting activities. But he said they were not responsible for the problems with which McBain Holdings became involved. He said (trans. p60):
[T]hey just tried to help their son, that is all they tried to do. They didn't know anything about it and break any law, regardless what accusations CASA make they never, ever, at any time flouted with the law or otherwise.
We are satisfied that is accurate. It shows that, where his family is involved, Mr McBain recognises the importance of admitting his own responsibility for the breaches by McBain Holdings of aviation legislative requirements. He was the only person in the management of the company with aviation experience, and the problems which arose in respect of aviation matters were Mr McBain's responsibility. Thus, the submission of Mr Langmead that we cannot attribute fault or blame for the actions of the company to Mr McBain, who was not a director of that company, is not relevant in looking at the issue of safety of air navigation. Mr McBain, on his own evidence, was the person responsible for seeing that the aerial operations run by McBain Holdings were safe, and in so far as we find they were not, that is a matter which relates to air safety and which may indicate that Mr McBain is not a fit and proper person to hold a commercial pilot's licence.
Similarly, Mr Langmead submitted that Mr McBain was not, and should not, be treated as the Chief Pilot of McBain Holdings. The CAA s.28(3)(b) and CAO Appendix 1 require that there be a Chief Pilot. Mr McBain with his 12 or 13 years of flying experience as a commercial pilot at the time the business was established must, or at least should, have known that it is a requirement of any flying operation that there be a Chief Pilot. His failure, as the operations manager and operating mind in aviation matters of McBain Holdings, to ensure that there was a person appointed to perform the functions of a Chief Pilot does relate to the safety of air navigation. It is the responsibility of a Chief Pilot to see that the line pilots fly aircraft that are safe in a manner which complies with the regulations which are intended to ensure the safety of aviation.

We said at paragraph 23 of our decision of 25 September 2001 on Mr McBain's stay application:
We were troubled by the evidence Mr McBain gave. He appeared to put very little weight on the admitted breaches of the Act and Regulations. It seemed much more important to him to denigrate the pilots who made the statements relied on by CASA. That approach did not give us the impression that Mr McBain appreciated the seriousness of his breaches of the Act and Regulations. They include operating without an AOC, allowing pilots who are not licensed for that purpose to perform maintenance on aircraft, failing to ensure that log books are maintained (see T docs p65), and that maintenance releases entered as required. Mr McBain seemed not to recognise the safety implications of these matters and of the entries in the pilots' work sheets and statements (see for example T docs pp145-147 and pp194-195). We would have found Mr McBain's evidence more persuasive if he had addressed the issues which are raised in the material, some of which he did not dispute, rather than simply denigrate the pilots who he formerly employed.
Mr McBain did not take that advice. He continued at the hearing to denigrate the pilots who gave evidence against him and did not show that he recognised his responsibility for the predicament in which they found themselves. He did not ever express anything like remorse.
In his evidence Mr McBain criticised the flying skills of Mr Benbow and Mr O'Callaghan. As to Mr Benbow, the documents show that on 23 March 2000, (Tdocs p63), Mr McBain advised Mr Benbow that the Captain on the ship wanted him changed, because they requested someone with more experience. Mr McBain in the same message offered Mr Benbow further flying duties on another ship. The following day (Tdocs p62) he again sent a fax to Mr Benbow offering him four months work and added:
If this is not suitable for you then let me know as I have another pilot standing by but would prefer to keep you on as I know you and you are starting to get the hours you need. Anyway let me know ASAP if you want to do this or not.
Don't let this bother you too much as I don't think it is your flying or anything like that.

Mr Benbow said in evidence that he decided not to accept those offers and he returned to New Zealand.

We find that the main reason why Mr Benbow was fired is shown at Tdocs p187. Mr Benbow dropped some helicopter parts off for Mr Nordstrom and was fired by his Captain for using fuel to do so. This shows that the firing was because of the way Mr McBain arranged to get necessary parts to Mr Nordstrom and not because of Mr Benbow's lack of competence. We find that another factor which lead to the Captain's dissatisfaction with Mr Benbow was the state of the helicopter and the fact that Mr Benbow did not have helicopter hours and component times to show the Captain of the WINFAR 606. It is apparent from Mr Benbow's statement (Tdocs p36) that on 24 January he and helicopter MHM transferred from the 707 boat to the WINFAR 606 boat. There had been some difficulty with the Captain on the 707 as the helicopter was not operational (Tdocs p64). As soon as Mr Benbow arrived on the WINFAR 606, the boat's radio operator asked about helicopter hours and component times which of course could not be provided. Around about the same time Mr McBain advised Mr Benbow that a replacement machine was to be sent up. After Mr Benbow stopped flying MHM it was sent back to Australia. This did not happen until after Easter 2000 when helicopter MHQ arrived in Wewak. About 3 May, Mr Benbow helped place the D model (MHM), which so far as he knew was an American registered helicopter, in a container at Wewak. He said at that stage (Tdocs p38) "I understand they were going to ship N8352 back to Australia and get a lot of work done on it . . . and then place it on the Australian register".
Similarly we find that Mr O'Callaghan's problems with his Captain were caused or contributed to by his inability to show the Captain of a boat his component times. He said (at Tdocs. pp195-196):
[W]hen MBM arrived on there they (Chi-Tai) wanted to know the component time and I couldn't answer them cause I didn't know, yeah, and the Captain is a very professional man and he understands that helicopters stop and he was quite upset that I couldn't supply him because the previous helicopter company that he had, which was Hoffman's, which is probably the most professional helicopter outfit out there, as professional as you could get, Hoffman's have a spare helicopter virtually in parts and the pilots could tell him and give him the paperwork for the hours that each component had done whereas I couldn't do either of that.
Q.And what was the consequence of that?
A.He was very "No Good Helicopter", "Bernie no good".
A further example of Mr McBain trying to blame the pilots for his own conduct, is the evidence he gave to explain the tone of his fax to Mr Nordstrom at Tdocs p364. That fax responded to Mr Nordstrom's advice that he intended to change the tail rotor gear box. Mr McBain said in his affidavit (A1 para 96) that Mr Nordstrom had told him that he had 12 chip light indications over a period of about three days. When that was put to Mr Nordstrom he denied it emphatically. We accept Mr Nordstrom's denial. We find that as an experienced pilot he would never have 12 chip lights come on with any problem. We find that Mr McBain's evidence on the issue was a complete fabrication.
All the pilots called by CASA kept their faxes and log books of hours flown and maintenance performed. These records show they expressed constant concern about safety issues and referred those issues to Mr McBain. Some examples from Mr Nordstrom's records are Tdocs p147 where he says about a sound in the motor; "didn't think we were going to make it home" and graphically describes his fear on the flight. At Tdocs p148 he says as to maintenance work he performed, '"Have to admit shitting myself doing this without Bernie looking over my shoulder". At Tdocs p150 he uses the Hobbs meter to keep track of 100 hourly services due (because he does not have a maintenance release). At Tdocs p151 he says he referred his worries about the oil and gauge to Mr McBain. At pp167-8 he expresses his disgust at the fact that he has complained to Mr McBain about the state of the main rotor blades on AKV and says, "I've told him (Mr McBain) from the time I came on this boat and took over this heli VH-AKV the state of these blades but was told to use 2216 epoxy resin and get on with the job. Pisses me off no replacements". At Tdocs p173 he wrote:
Shit can't think of anything else apart from the rivets that need replacing. Told Bernie 5 mth ago need rivets and gun.

At Tdocs p178 he refers to Mr O'Callaghan having a big problem with no radio transmission or GPS. He noted, at Tdocs p179, that Max (Mr Michael) had the same problem before handing that helicopter over to Mr O'Callaghan.

Another issue on which Mr McBain tried to mislead the Tribunal concerned the failure to keep records of hours flown. Throughout the hearing much was made in the evidence of Mr McBain and Mr Michael, and in cross-examination of the three New Zealand pilots, of the fact that the Hobbs meters registered the hours flown by the helicopters. Therefore it was suggested that it really did not matter if, as was said, for instance, by Mr Benbow at Tdocs p38, Mr McBain told him he did not need the hours which had been flown in helicopter MHM. However, as Mr Anastasi pointed out in paragraphs 41 and 42 of his submissions, when the helicopter was assessed for the issue of a Certificate of Airworthiness (R11) on 14 February 2001 the last recorded flight was on 29 October 1999. Thus the Hobbs meters had not been used to record the flying time when Mr Benbow was in command of MHM.
A great deal of time was spent cross-examining Mr O'Callaghan and Mr Nordstrom about the flying hours they recorded. Mr Nordstrom said he recorded hours for the helicopter rather than just his own hours. Mr O'Callaghan's recorded hours were correct, it was only his qualified estimate in a statement (Tdocs p196) which was too high, but he said before giving that estimate, "I have not added them up". Mr Anastasi in paragraph 50 of his submissions analyses the figures on the Hobbs meters and shows that the Nordstrom logbook for MBM between 14 April 1999 and 17 November 1999 was only five hours more than the Hobbs meter recordings of 887.8 hours on 14 April 1999 and 1441.3 hours on 24 April 2000. However the important issue relating to safety is the uncontroverted evidence that Mr McBain engaged pilots to fly helicopters which had no Certificate of Airworthiness and no maintenance release, and that he did not log actual hours flown, rather than the precise number of hours those pilots flew. Even the first hour they flew was a breach of the regulatory scheme of the CAA and CARs.
Another matter on which we find Mr McBain gave misleading evidence was when he denied that he had told the pilots that he was qualified to perform maintenance on the helicopters they would be flying.
All the pilots said that they understood that Mr McBain was qualified to perform maintenance when they agreed to work for McBain Holdings. That was even supported by Mr Michael in his letter to the Tribunal of 21 September 2001, sent in relation to the stay application (R1). He wrote "Why shouldn't James Benbow and Bernie McBain both holding FAA mechanical licences be allowed to pull a helicopter from a cargo container . . .". In his evidence Mr Michael retreated from that position and said that he had just thought that Mr McBain had a licence because of a Certificate he had seen in his office. We find that Mr McBain did lead all the pilots, including Mr Michael, to believe that he had a licence to perform maintenance on the helicopters.
It is our view that all the breaches and contraventions referred to above relate to air safety. The fact that Mr McBain did not recognise and admit to that fact, but instead tried to discredit and denigrate the pilots, shows a lack of appreciation of the significance of his own conduct, and how it contributed to any breaches by the pilots employed by McBain Holdings. It shows an attempt to avoid his responsibility and instead to place that responsibility on others.
Mr McBain and Mr Langmead recognised that the evidence could give rise to concerns relating to the safety of air navigation, if we were to set aside the decision under review and to grant Mr McBain the licence he sought. Mr Langmead therefore put to the Tribunal, and called evidence from Mr McBain supporting his submission, that Mr McBain should be given a CPL (H) with conditions. The conditions Mr Langmead submitted we should consider were set out at paragraph 5 of Mr Langmead's written outline of applicant's submissions as follows:
i)That the applicant would not apply for an AOC for a period of five years.
ii)That the applicant would not apply for chief pilot approval for a period of five years.
iii)That the applicant would submit to CASA documents as agreed with CASA on a monthly or other reasonable schedule including maintenance releases, pilot log book, duty time records, flight time records and the like to confirm that all flying by the applicant was in full compliance with the relevant legislation.
iv)That the applicant would only fly under the auspices of an AOC holder (i.e. that he would only fly commercially). Given that the respondent has not cancelled the applicant's private pilot licence, this condition is probably unnecessary.
Mr Anastasi submitted that the Tribunal did not have power to issue a licence subject to such conditions. He submitted that if we found that Mr McBain was a fit and proper person to hold a CPL (H) he was entitled to that licence. If on, the other hand, we found that he was not a fit and proper person to have his CPL (H) without conditions, then placing him under conditions would not make him into a fit and proper person to have such a licence.
We accept Mr Anastasi's submission on that issue. We also accept his submission that Mr McBain sought to trivialise the breaches he admitted committing. We find Mr McBain committed many serious and far reaching breaches of the CAA and CAR which relate to the safety of air navigation. On the other hand we also recognise the seriousness of depriving Mr McBain of the means of earning his living as a commercial helicopter pilot.
We have looked to the authorities referred to in submissions to consider how similar conduct has been dealt with in other decisions.
Mr Langmead relied on Re Moores Airspray Pty Ltd v Civil Aviation Safety Authority (AAT 10383, 11 August 1995), noted only at (1995) 38 ALD 479. Mr Langmead pointed out that the facts were similar to those in this matter in that there were allegations of a course of misconduct rather than an isolated incident, and there were issues as to dishonesty and as to maintenance releases being incorrectly completed. The Tribunal decided that an AOC should be issued subject to conditions.
As Mr Anastasi pointed out, the requirements for issue of an AOC in s 28 of the CAA Act have no reference to a person being "a fit and proper person". Further it is sufficient if the person "has complied with or is capable of complying with" all relevant legislative provisions relating to safety. Conditions as to supervision may increase the capacity of a person to comply with conditions. They cannot make a person who is not "fit and proper" into a fit and proper person.
Mr Langmead sought to distinguish Re Griffiths and Civil Aviation Authority (1994) 34 ALD 554 on the ground that:
The level of culpability in holding an AOC, being a chief pilot, and operating in breach of regulations, cannot be equated with being an employee of a company which conducted an offshore foreign operation which by reason of registration of aircraft in Australia, became an Australian operation whilst in full swing. Further, Mr McBain was never the "directing mind and will of the corporation, the very ego and centre of the personality of the corporation" as Mr Griffiths was (paragraph 19). Mr Griffith's history is also to be contrasted with that of Mr McBain whose past and recent conduct as a pilot is without blemish.
The Griffiths decision illustrates the serious, extensive and egregious defaults which would properly justify a party being found not to be fit and proper to hold a licence. The facts of the Griffiths decision are distinguishable on most points from the facts relating to Mr McBain.
Mr Anastasi submitted that the level of culpability of Mr McBain is even greater than that of Mr Griffiths because he, as the operations manager of McBain Holdings, and hence the "directing mind", ran an operation that had no AOC, and no Chief Pilot, which had no Certificates of Airworthiness for some of its Australian registered aircraft and flew those aircraft without maintenance releases for 12 months (MBM) and for 16 months (MHM).
We consider this matter has many similarities to Re Griffiths. We accept and adopt the discussion in that decision as to the meaning of the concept of "a fit and proper person" depending on the context in which those words appear. The CAR at 5.121 sets out what a CPL (H) holder is authorised to do. But every licenced pilot must comply with all aspects of the CAR which apply to him or her. It is Mr McBain's disregard of all safety requirements of the CAA and CAR and his lack of acceptance of responsibility for his role in the breaches committed by the pilots who flew for McBain Holdings which suggest that he is not a fit and proper person to hold the licence he seeks.
In Re Griffiths the Tribunal, after referring in detail to the High Court decision in Australian Broadcasting Tribunal v Bond (1990) 94 ALR 11, concluded at paragraphs 11, 14, 16 and 17:
11) What is apparent from these passages from the High Court's judgement in the Bond case, is that the matters we must take into account in determining what is a fit and proper person depends upon the context in which those words appear. This was the approach taken by the tribunal in the earlier case of Re Taylor, [Re Taylor and Dept of Transport (1978) 1 ALD 312] to which we have referred. The tribunal considered reg 258 of the Regulations. That Regulation is in terms similar to those of reg 269 with which we are concerned. It said:
In the context of reg 258 (1) (d), the enquiry whether the applicant is a "fit and proper person" is directly focused upon the fitness and the propriety of the applicant exercising the "responsibilities" and performing the "functions" and "duties" of the holder of a licence in this case a commercial pilot licence. It is not simply a question of competence to fly an aircraft which the Secretary must consider for this purpose.
In 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 of the public at large: at 321.
. . . .
(14) The Regulations and Orders have their foundation in the Civil Aviation Act 1988 (Cth). The Act itself provides only the most general guidance. Its long title states that it is an Act to establish the CAA with functions relating to civil aviation and, in particular, the safety of civil aviation. The aspect of air safety is at the foundation of s 98 which authorises a wide range of Regulations to be made. In particular, s 98 (1) gives a very wide power to make Regulations relating to the safety of air navigation: see s 98 (1) (c), (d), (e) and (f). Without limiting the generality of s 98 (1), s 98 (2) sets out more specific Regulation making powers. An examination of those particular powers and the specific Regulations and Orders made under them indicates that they cover a very broad range of matters relevant to air safety. They touch not only upon a person's ability to fly an aircraft but to the maintenance of those aircraft, the use of airspace, and the safety of those on the ground and the air. The specific functions, duties and responsibilities of a pilot relate, in at least some degree, to all of those areas. All are based on considerations of air safety.
(16) We do not consider that we should limit the matters, to which we may have regard, to those events occurring immediately prior to the variation of the pilot licences and related only to his actions as the holder of those licences. In assessing whether he is a fit and proper person to carry out the functions, duties and responsibilities of a licence holder, one of the aspects we need to assess is how he has carried out those, or similar or related, functions, duties and responsibilities in the past. Past actions in respect of those matters are one guide to how he may be expected to behave in the future. It is not, however, simply the events immediately prior to the variation of the licences which are relevant but the pattern of his past behaviour in areas related to that under consideration. Individual events and actions taken out of that broader context are not necessarily an accurate reflection of a person's fitness or otherwise.
(17) For the same reasons, Mr Griffiths' conduct as the holder of a chief pilot approval is relevant. As the chief pilot, Mr Griffiths had control of all flight crew training and operational matters affecting the safety of Grif-Air's flying operations. He was also responsible for ensuring that Grif-Air's air operations comply with the Act, Regulations and Orders: CAO 82.0 and App 1. It follows that the duties, responsibilities and functions of a chief pilot are broader than those of a pilot but that, at a supervisory level, they also require the chief pilot to pay heed to the Act, Regulations and Orders to ensure that each of the operator's pilots complies with his of her functions, duties and responsibilities. Like those of a pilot, the chief pilot's functions, duties and responsibilities are based on the need to observe and maintain air safety. It follows that a person's observance of and compliance with his obligations, duties and functions as a chief pilot are equally relevant in assessing how he may observe and fulfil obligations, duties and functions similarly based in the interests of air safety. That is to say, Mr Griffiths' actions as a chief pilot may provide some insight into whether he has a proper appreciation of air safety and the need to observe it in the interests of all concerned. As the tribunal said in Taylor, those whose interests are affected include pilots, passengers, the owners of aircraft and the public at large.

Although Mr McBain was not a director or Chief Pilot of McBain Holdings, we have explained why we regard his conduct as operations manager as imposing obligations on him to observe and comply with the CAA and CAR. In so far as he did not act in accordance with those obligations, he raises doubts as to whether he is a fit and proper person to hold a commercial pilot's licence.
The Tribunal in Re Griffiths concluded at paragraphs 121 and 122:
(121) In light of all of our findings of fact and all of the evidence, we consider that Mr Griffiths has not indicated that he is prepared to fulfil his responsibilities and has shown that lack of preparedness consistently over the years. Having listened to the evidence and particularly to that of Mr Griffiths over an extended period, we have concluded that his lack of preparedness is based on his view that he is an excellent pilot who can fly his way out of trouble. There has been no question that he is an excellent pilot but this cannot overcome his consistent failure to comply with the law including the laws regarding maintenance, records as well as the use of appropriate equipment. The safety of others depends on maintenance and records and, in relation to certain flights such as those over water, the use of appropriate equipment. Although the responsibilities of a pilot are not co-extensive with those of the chief pilot or of an AOC or holder of a certificate of registration, we have no reason to believe that Mr Griffiths will change his general pattern of behaviour should he hold unrestricted pilot's licences but fly only helicopters belonging to others and operated by others.
(122) Although we appreciate that our decision effectively precludes Mr Griffiths from earning his living as a pilot, we feel obliged to find that he is not a fit and proper person to have the responsibilities and exercise and perform the functions and duties of any unrestricted licence. We must, therefore, affirm the decision under review.
In this matter we similarly formed the view, in the light of all our findings of fact and all of the evidence, that Mr McBain has not indicated that he recognises the duty he has to fulfil his responsibilities as to safety of air navigation. He too has demonstrated a consistent failure to comply with requirements he must have known were imposed on the owner or operator of an Australian registered aircraft, even if he believed no AOC was required for the operation. He has also demonstrated lack of concern about the effect his actions had on the pilots who were employed to fly aircraft with no maintenance releases and no logbooks and without any system of maintenance inspections as required by the CAA and CAR. As soon as a pilot commenced to fly such an aircraft he was himself in breach of obligations under the relevant legislative provisions.
We find that there are also similarities between this matter and Re Broadbent and Civil Aviation Safety Authority [1999] AATA 972 . The Tribunal there referred to Hughes and Vale Pty Ltd v NSW (No 2) (1955) 93 CLR 127 at 156-7 where the High Court said:
The expression "fit and proper person" is of course familiar enough as traditional words when used with reference to offices and perhaps vocations. But their very purpose is to give the widest scope for judgment and indeed for rejection. "Fit" (or "idoneus") with respect to an office is said to involve three things, honesty knowledge and ability: "honesty to execute it truly, without malice affecting or partiality; knowledge to know what he ought duly to do; and ability as well in estate as in body, that he may intend and execute his office, when need is, diligently, and not for impotency or poverty neglect it." Coke.
The Tribunal found Mr Broadbent to be not a fit and proper person to hold a licence. It explained its conclusion at paragraph 15:
15. In my view the applicant is not a fit and proper person to hold a flight crew licence because, as has been demonstrated in the proceedings before the Tribunal, he could not be relied upon to operate an aircraft in accordance with the Civil Aviation Regulations, Notices to Airmen and Air Traffic Control instructions so as to navigate the aircraft in a safe manner. He has a well established record of breaking and bending rules and then asserting that the problem lies with someone else - often Air Services Australia or the respondent. Those are not the actions of a person who could be accepted as coming within Coke's definition of "fit".
Mr McBain in our view has also shown that he cannot be relied upon to operate an aircraft in accordance with the CAA and CARs and AOs so as to ensure the safety of air navigation. He too, we find, has "an established record of breaking and bending rules and then asserting that the problem lies with someone else". In this matter the people he blamed are the pilots he engaged to fly helicopters without appropriate maintenance documentation, Certificates of Airworthiness or log books or even maintenance manuals. Had he recognised his share of the responsibility for the predicament in which the pilots he engaged found themselves, we would have been more likely to be persuaded that he was a fit and proper person to hold a CPL (H). It is the fact that he has throughout the proceeding tried to blame the pilots and mislead the Tribunal as to the extent of his responsibility for the proven breaches, which makes this matter similar to Re Griffiths.
Similarly in Re Paggi (Trading as Paggi Aviation) and Civil Aviation Safety Authority [2000] AATA 348, the Tribunal found that Mr Paggi as operator had breached the CAAs and ADs in many respects mainly in regard to maintenance issues. The Tribunal at paragraph 80 of its reasons said:
80. The Tribunal is also seriously concerned that Mr Paggi appears still not to realise the seriousness of these breaches of the Act and Regulations nor to accept the need for compliance. As set out above, the Tribunal has rejected many of Mr Paggi's explanations and has not accepted the truthfulness of his evidence in matters of critical importance to air safety. His defence of the allegations has, mostly, been to deny them and to accuse others of giving false evidence.
Mr Langmead submitted (applicant's submissions pp6-7) as to Re Paggi:
The Tribunal in Paggi was concerned that even at the time of the hearing he appeared not to realise the seriousness of the breaches, and that he denied most of them, and accused others of giving false evidence (paragraph 80). This contrasts with the conduct of the applicant who has not asserted that the helicopters were in fact all maintained entirely in accordance with Australian legislation, and who has accepted that breaches occurred. Save for contesting the exaggerated number of flying hours claimed by some pilots, and their often contradictory evidence which sought to implicate him in the pilots' misconduct, he has only contested the extent of his knowledge and involvement in those breaches. He has accused pilots of failing to discharge their duties, and the Tribunal should note that CASA has agreed that the pilots committed breaches. This is not a case of Mr McBain unreasonably blaming others for breaches. The pilots in question admitted to many breaches. Mr McBain gave specific evidence that he has learned from the McBain Holdings Pty Ltd experience, as well as from all that has followed it. The respondent's solicitor put in oral submissions to the Tribunal that Mr McBain has not accepted responsibility for his actions. That is plainly incorrect. What he has not accepted, and properly so on the evidence, is responsibility for each and every allegation that CASA has levelled against him.
Paggi demonstrates that where allegations against an AOC holder relating to unauthorised maintenance (by the commercial pilot who held the AOC) are found proven, and where that maintenance in fact put passengers, pilots and the flying public at real risk (paragraph 82), the appropriate administrative action is against Paggi's AOC, and not against his commercial pilot licence.
The facts of Paggi are distinguishable from those of Mr McBain, in that the respondent has failed to adduce evidence that any of the four helicopters during the relevant period were flown with any actual defect or unserviceability which in fact actually threatened the safety of that helicopter. Further, the respondent has failed to adduce any evidence demonstrating that Mr McBain had knowledge of any aircraft flying in an unsafe condition. The evidence is to the contrary, that he put safety first.
We have already made findings which show that we do not accept the distinctions sought to be made by Mr Langmead. We find that even at the time of hearing Mr McBain did seek to trivialise the seriousness of the breaches and that he denied all which could not be incontrovertibly proven e.g. by the fact that no Certificate of Airworthiness or maintenance release was ever issued for certain aircraft. We regard the detail as to precisely how many hours pilots flew aircraft as far less significant than the fact that they were expected to fly at all in aircraft without Certificates of Airworthiness, maintenance releases and details of component lives of their aircraft, thus themselves committing breaches of the relevant provisions. Similarly, we regard it as very significant that hours of flight were not recorded by McBain Holdings, the operator of the aircraft (see paragraphs 17(d) and (e) of the CASA supplementary submissions).
Further we do not consider it comes well from Mr McBain to "accuse pilots of failing to discharge their duties". Even though the pilots are aware that they committed breaches, we consider them to be less significant than and explained by the breaches of McBain Holdings, of which Mr McBain was the operations manager and person responsible for all aviation matters. We find Mr McBain did unreasonably blame the pilots for their breaches. By asking any pilot to fly aircraft for which no appropriate documentation existed, he was inducing pilots to commit breaches of the relevant legislative provisions.
We find that Mr McBain indicated that he does not recognise the role he played in the breaches committed by the pilots. We find that he has not accepted responsibility for his actions.
Mr Langmead, of course, placed reliance on the letters from Jayrow Helicopters dated 20 May 2002 (A10) (as to which Mr Maitland gave evidence) and the report of the psychologist, Mr Friend, of 8 February 2002 (Tdocs p464).
Jayrow Helicopters has stated that it will offer employment to Mr McBain if he is reissued with a CPL (H). He has already flown with them for a short time before his licence was cancelled. They state that they have a highly efficient system to ensure that all pilot flight standards, maintenance, operational control and records of pilots and aircraft are kept at an optimum.
The Tribunal expressed doubt as to whether Jayrow was fully informed as to all the facts of the case. Mr Maitland gave evidence that he had a telephone conversation with Mr Tessman of Jayrow Helicopters in which he went through a short summary of the cancellation notice. He said, at trans. p262:
I went through it in summary form as I spoke to Mr Tessman and explained that CASA had alleged that Mr McBain had orchestrated over runs, that there was flights without maintenance releases, flights without AACs. It was an operation of ships involving helicopters with fish spotting, and the allegations were numerous and onerous to rebut, but that we had, in fact, written a comprehensive letter to CASA and we were awaiting their response.
We do not have any reason to doubt that Jayrow Helicopters maintains excellent standards and procedures. However, because Mr McBain himself does not recognise the significance of the many breaches and contraventions which he committed as operations manager of McBain Holdings, we doubt that Jayrow Helicopters is fully informed of the true position as to Mr McBain's responsibility for the actions leading to cancellation of his own CPL (H), and as to his share of responsibility for the breaches committed by the pilots.
Similarly the findings we have made are directly contradictory to the opinion of Mr Friend the psychologist. He, of course, based his report substantially on what Mr McBain told him. He wrote that Mr McBain described himself as motivated to perform at his best and as honest and said that he is now more self-controlled, more relaxed, wiser and more patient. He also reported that Mr McBain now recognised the importance of CASA's "essential regulatory role".
We have made findings as to Mr McBain's lack of honesty, and the giving of misleading evidence, and his failure to accept responsibility for the role his breaches played in the non-compliance of the pilots. Because of those findings, we place no weight on the psychologist's report. We find that he was given only one side of the picture and did not have a full appreciation of all the issues.
Mr McBain's Counsel in paragraph 6 of the supplementary submissions made the point that there is no reported decision of which they are aware where any applicant has sought review of a decision to cancel, suspend or vary a pilot licence for conduct solely relating to aircraft maintenance and management issues. We have not ourselves found any such decision. Counsel stated:
Misconduct in relation to such issues in the absence of misconduct as a pilot, appears properly and relevantly to be dealt with only by administrative action against Air Operator Certificates, chief pilot approvals, certificates of airworthiness.
That may be the position where the operator of the venture holds an AOC, and has a Chief Pilot and runs aircraft with Certificates of Airworthiness. But here a pilot of 14 years standing has been in effective control of aviation aspects of an operation and has allowed it to be run without an AOC, or a Chief Pilot and in regard to some of its aircraft with no Certificate of Airworthiness, no maintenance release, or log books and as to all of its aircraft no current maintenance release. So far as we are aware there is no case where a pilot of many years standing has shown such a complete lack of regard for the obligations and duties required to fulfil the safety aspects of air navigation, and for the safety of and position in which he placed line pilots employed to fly for the company.
We are conscious of the grave consequences for Mr McBain of affirming the decision under review. But on the evidence we find that he is not a fit and proper person to hold a CPL (H). Thus we must affirm the decision under review.
The decision under review will be affirmed.
I certify that the 153 preceding paragraphs are a true copy of the reasons for the decision herein of Mrs Joan Dwyer, Senior Member and Mr A Argent, Member
Signed:         Grace Carney
  Associate
Date/s of Hearing  13, 14, 15, 16, 20 and 24 May 2002
Date of Decision  28 June 2002
Counsel for the Applicant        Mr J Langmead, Mr S Bayles
Solicitor for the Applicant         Grundy Maitland & Co
Counsel for the Respondent    Nil
Solicitor for the Respondent    Mr A Anastasi, CASA