Murtagh and Civil Aviation Safety Authority
[2006] AATA 673
•1 August 2006
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2006] AATA 673
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2005/538
GENERAL ADMINISTRATIVE DIVISION ) Re DAVID MURTAGH Applicant
And
CIVIL AVIATION SAFETY AUTHORITY
Respondent
DECISION
Tribunal Senior Member B J McCabe Date1 August 2006
PlaceBrisbane
Decision The decision under review is varied. The applicant’s period of suspension is reduced from six months to four months, effective from the date of these reasons. That part of the decision imposing conditions imposing training, testing and reporting requirements upon the licence holder is affirmed save that the training and testing requirements must be completed within the period of suspension.
............[Sgd]..............
SENIOR MEMBER
CATCHWORDS
CIVIL AVIATION – offences in relation to Aviation – applicant holder of private pilots licences – respondent alleges multiple breaches of Civil Aviation Regulations – applicant breached regulations – applicant not a fit and proper person – suspension of licence appropriate – conditions on licence imposed
Civil Aviation Act 1988 s 20A(1), 29, 31A
Civil Aviation Regulations 1988 reg. 2, 5.52, 138, 157, 166(1)(g), 226, 269
Civil Aviation Orders s 40.1.0
Clyne v New South Wales Bar Association (1960) 104 CLR 186
REASONS FOR DECISION
4 August 2006 Senior Member B J McCabe introduction
1. David Murtagh holds a private pilots’ licence. The respondent, the Civil Aviation Safety Authority (CASA), decided to suspend the licence for a period of six months. The decision was notified to the applicant by letter dated 15 August 2005. The letter referred to several incidents and other evidence of shortcomings that the respondent says suggests the applicant is not a fit and proper person to hold a private pilots’ licence. Mr Murtagh disagrees with CASA’s decision and he has asked the Tribunal to reconsider the matter.
2. CASA’s decision has not taken effect. It was stayed for a period of 90 days pursuant to s 31A of the Civil Aviation Act 1988. The stay was subsequently extended pursuant to s 41(2) of the Administrative Appeals Tribunal Act 1975 until the application for review is heard and determined.
3. After hearing all of the evidence and considering the relevant legislation, I am satisfied the applicant is not a fit and proper person to hold a private pilot’s licence. A period of suspension will provide him with an opportunity to reflect on his conduct and consider opportunities for further training. I am satisfied it is appropriate to suspend his licence for a period of four months from the date of this decision.
the material before the tribunal
4. The Tribunal was provided with the documents required pursuant to s 37 of the Administrative Appeals Tribunal Act 1975. A number of statements and other documents were tendered into evidence. The applicant gave evidence at the hearing. He also called Messrs Munro and Beard to give evidence on his behalf. The respondent called Messrs Lewis and Ward, both of whom are in the employ of CASA.
5. Mr Carter represented the applicant. Mr Anastasi, from CASA’s Office of Legal Counsel, appeared on behalf of the respondent.
the background to casa’s decision to suspend the pilot’s licence
6. The applicant is a retired member of the RAAF although he did not fly military aircraft during the course of his service. He has nonetheless been interested in aircraft and flying for a long period. He flew a glider for the first time in 1970, and his first experience as a pilot of a light aircraft was in 1973. He has also flown ultra-light aircraft and powered hang-gliders. He said in his statement that he purchased and maintained a separate logbook in respect of each aircraft type.
7. Mr Murtagh continued flying aircraft after he retired from the RAAF. He no longer works but he retains a keen interest in aviation. He has been undertaking further training but he says he has no desire to work as a commercial pilot. Mr Carter said this was significant: he emphasised the applicant should be judged against the expectations of a private pilot rather than the more exacting standards of a commercial pilot.
8. CASA referred to a number of problems with the applicant’s conduct during the course of these proceedings. It says those problems provide a basis for suspending the applicant’s private pilot’s licence. The problems can be summarised as follows:
(a) the Raglan incident: the applicant took off from Raglan aerodrome on 13 June 2004 and changed his heading below 500 feet before completing a circuit and “buzzing” the airstrip (ie, flying at high speed along the length of the airstrip at low height).
(b) the Emu Park incident: after leaving Raglan aerodrome on 13 June 2004, the aircraft piloted by the applicant landed at Emu Park aerodrome where it was observed by two CASA officers. The officers say they saw a Mr Barry Hempel sitting in the left hand seat of the aircraft. They assumed he was acting as a member of the flight crew. The regulations require that the aircraft be operated with two crew members. Mr Hempel, although an experienced pilot, did not have authorisation to act as a member of the flight crew because of a medical condition. CASA says he should not have been sitting in the left hand seat of the aircraft. CASA also says the logbook was not completed correctly because it did not record Mr Hempel as part of the flight crew.
(c) log book issues. Pilots are required to maintain a log book. The applicant kept more than one, which CASA says is unacceptable. CASA also claims there were discrepancies in the recording of flights and times in the logbook(s) which enabled him to satisfy the requirements for an endorsement to fly a particular aircraft.
9. I shall deal with the evidence in relation to each of these issues in turn.
the raglan incident
10. The applicant attended a “fly in” (a gathering of aircraft enthusiasts) at Raglan aerodrome on the weekend of 12-13 June 2004. He travelled there with friends aboard an Antonov AN-2 single-engine aircraft (the AN2). At least 100 other enthusiasts attended the gathering with their aircraft.
11. The AN2 is, by all accounts, an impressive plane. The plane in question was painted yellow. It is relatively large. It must have an aircrew comprised of two people even though it only has one engine.
12. The participants in the fly-in departed the aerodrome on Monday 14 June 2004. Mr Ward, a CASA officer who was present at the fly-in, said all flight operations were to the east of the aerodrome. Mr Murtagh and his party boarded the AN2 and prepared for take-off. They were bound for Emu Park. Mr Murtagh said he was at the controls as pilot in command. Shortly after take-off to the east, the aircraft altered its heading. The applicant says he judged he was at least 500 feet off the ground when he commenced the turn. The aircraft continued the turn until it was in line with the airstrip, as if it were going to land. The applicant then flew the aircraft along the length of the landing strip. He said in his oral evidence that he was not sure how high off the ground he was at that point.
13. Mr Murtagh did not offer a satisfactory explanation for his decision to execute this manoeuvre. In his oral evidence he suggested he wanted to make sure the aircraft was operating properly and was safe to fly over rugged terrain before he left Raglan. There was also a suggestion he needed to practice his approach technique although he later conceded he did not require any practice. He also conceded at another point in his evidence that there was no particular reason for undertaking the circuit of the airfield.
14. Messrs Ward and Lewis are CASA officers. They were present at Raglan over the weekend. They were manning a stall, but they were also keeping an eye on proceedings. They had earlier cautioned at least one other pilot who had flown at a low height down the length of the airstrip. Mr Ward was aware of the AN2: he said it was the sort of aircraft everyone noticed. He says he was standing a short distance from the fence surrounding the airfield – a distance of about 50 metres from the strip – when the AN2 flew along the length of the airstrip. Mr Ward said the aircraft was definitely lower than 500 feet when it commenced the turn, and it was travelling about 50 metres off the ground when it flew past him along the length of the strip. He said the aircraft was travelling too fast and the nose was at the wrong altitude for a practice landing.
15. Messrs Monroe and Beard both gave evidence disputing whether it was possible for a person on the ground to make a reliable judgment about the height at which an aircraft was travelling. Mr Beard’s evidence is of particular interest given his experience as a champion aerobatic flyer and as chief judge for the Australian Aerobatic Championships. Mr Beard said he was able to make reliable guesses because of his experience but he said most people – even experienced pilots – were not very good at estimating the height of an aircraft. Mr Monroe’s evidence was to similar effect. It is also consistent with the evidence of Mr Murtagh, who admitted he was unsure of the altitude of the aircraft (although he thought he commenced the turn at about 500 feet).
16. I accept that estimating the height of aircraft is not an exact process. But the evidence of Mr Ward in particular is persuasive. He said the AN2 was turning at a lower point on the horizon than the other aircraft departing the field. He was located close to the runway when the aircraft flew past his position. He was in a good position to observe the AN2 and its handling. He was prepared to acknowledge a margin for error in his estimate of height. But he insisted the aircraft was travelling at less than 500 feet when it turned and proceeded down the centre-line of the runway. I accept his account of what occurred.
17. In those circumstances, it is apparent the applicant has contravened reg. 166(1)(g) of the Civil Aviation Regulations 1988 (CAR) because he altered his heading after takeoff before the aircraft reached 500 feet. He also breached CAR 157 which prohibits a pilot from flying less than 500 feet above the ground. I do not accept the applicant was practicing a landing. It is unclear why he did what he did. Perhaps he was showing off. In any event, he contravened the regulations.
18. The respondent also urged me to find Mr Murtagh’s low-flight over the airfield contravened s 20A(1) of the Civil Aviation Act 1988 (CAA). That section prohibits the operation of an aircraft “reckless as to whether the manner of operation could endanger the life of another person”. I note contravention of that section is a criminal offence: s 29 CAA. There is certainly evidence that suggests the applicant was behaving in a way that might endanger other people: there were passengers aboard his plane, and a number of aircraft that had participated in the fly-in were still on the ground over which he was travelling. The manoeuvre involved him taking an unnecessary risk. The applicant denied he would ever operate an aircraft without due regard for safety considerations. His insouciant air as he gave evidence left me wondering. I doubt the applicant has an adequate appreciation of the risk his actions posed to other people. Even so, I am not satisfied the applicant could be said to have behaved recklessly in contravention of s 20A CAA.
the emu park incident
19. The AN2 was piloted to Emu Park airstrip after it left Raglan aerodrome on 14 June 2004. There is no dispute that the aircraft landed, taxied and then took off again without coming to halt or cutting its engines. The applicant says he was in control of the aircraft, and his log book suggests the other crew member was Mr Jasinski.
20. Mr Lewis had already departed Raglan when the AN2 took off. Mr Lewis had travelled to Emu Park for the purposes of making an inspection. He said CASA officers routinely conducted surveillance of airstrips. Mr Lewis saw the AN2 land. He said there was no mistaking the aircraft. He told the Tribunal he saw Mr Barry Hempel sitting in the left hand front seat of the aircraft as it taxied past him at close range. Mr Lewis said there was no doubt it was Mr Hempel he saw: the aircraft passed within 10 metres of Mr Lewis’s position and he had a clear view into the aircraft. He assumed Mr Hempel was piloting the aircraft because the seat he was occupying was the pilot’s seat. That observation confirmed a suspicion which had formed in Mr Lewis’s mind when he had seen the AN2 fly overhead prior to the landing at Emu Park. Mr Lewis said Mr Hempel was an experienced pilot and it was possible to identify his distinct style of flying. Mr Lewis pointed out he had known Mr Hempel for many years.
21. It was common ground between the parties that Mr Hempel was not permitted to act as a member of the flight crew because of a health condition. Mr Murtagh agreed in his evidence that he was generally aware of the problem, and that it was an obstacle to Mr Hempel flying an aircraft. Mr Murtagh insisted he and Mr Jasinski were the flight crew. He denied that Mr Hempel was in the front left hand seat of the aircraft; even if Mr Hempel was seated there, he argued, there was no requirement that both front seats be occupied by the flight crew. He said Mr Jasinski was probably down the back. Mr Beard agreed that the pilot in command could operate from the right hand seat, and the other member of the flight crew could be located elsewhere in the aircraft.
22. CASA says Mr Hempel was in control of the aircraft as it came in for a landing. That creates two problems. One of them is a log-book issue. CASA says Mr Murtagh made a false entry into his logbook when he failed to mention Mr Hempel’s role as a member of the flight crew. The second problem arises because the applicant should never have allowed Mr Hempel to be seated in a control seat and pilot the aircraft when he was not authorised to do so. Mr Anastasi noted CAR 226 says an unauthorised person should not be sitting in a control seat of a dual control plane even if he is not flying the aircraft. That regulation suggests Mr Murtagh and Mr Beard misunderstand the rules as to who can sit where in the aircraft.
23. I am satisfied on the evidence of Mr Lewis that Mr Hempel was sitting in the front left seat of the aircraft. That is a control seat. CAR 226 says he should not have been sitting there. That seat should have been occupied by the other member of the flight crew – a failing which the respondent points out amounts to a contravention of CAR 138. The applicant must bear responsibility for each contravention given he was the pilot in command.
24. After careful consideration, I am not satisfied the evidence establishes Mr Hempel took an active role in piloting the aircraft. It follows the applicant did not falsify his logbook when he failed to report Mr Hempel as being part of the aircrew.
log book issues
25. CASA has identified a number of (what it says are) shortcomings in the applicant’s record keeping which should be taken into account. One explanation for the shortcomings is the fact the applicant kept multiple logbooks. CASA says a pilot should only have one and record all of his or her details in that book in a timely fashion. Mr Murtagh appears to have kept a different book for each different type of aircraft. He also agreed he did not necessarily record the required details of each flight in a logbook straight after flight was concluded. (CAR 5.52 requires the holder of a flight crew licence to record such detail as CASA may require in the log-book. CASA’s requirements in this regard are set out in section 40.1.0 of the Civil Aviation Orders (CAO) at paragraph 9.5.) He said it was his practice to note the relevant details on a piece of paper and make the formal entry later.
26. CASA conceded in its statement of facts and contentions that there was no express requirement in the delegated legislation that a flight crew member maintain a single logbook. Mr Beard confirmed Mr Murtagh’s evidence that maintaining multiple logbooks was reasonably common. I accept CASA’s claim that it is desirable to maintain a single logbook. Having more than one logbook may lead to confusion and affect the quality of the recordkeeping. That is the real issue: regardless of whether the applicant maintains one logbook or several, does his record keeping comply with the legal requirements? CASA says it does not.
27. A particular issue arose in relation to the way in which the applicant recorded the details of a series of flights in the AN2 in the first half of 2004. He initially recorded himself as being a member of the flight crew on eight flights. Mr Jasinski was listed in the applicant’s log-book as “captain” on those flights. Mr Jasinski’s logbook told a different story. It suggested Mr Jasinski was pilot in command. The applicant was not mentioned. The applicant subsequently transferred the entries in the logbook to a second logbook. In those entries, he recorded himself as pilot in command. Mr Jasinski was described as “other pilot or aircrew”.
28. CASA says the applicant’s logbook entries are incorrect. It says Mr Murtagh should not have logged the flight time unless he was pilot in command: CAO 40.1.0 at paragraphs 9 and 10. Mr Anastasi says the applicant amended the entries after he became aware that he needed to log a certain number of hours on the AN2 because he required a separate endorsement in respect of that aircraft. Mr Anastasi says the applicant realised he needed to make it clearer that he was pilot in command during the flights in question. The applicant denies this claim: he said he was under the impression there was a “grandfather” clause that had the effect of exempting him from the requirement of logging flight hours because of his extensive experience.
29. Mr Anastasi questioned this claim. He said the applicant would not have undertaken a flight test if he really believed he was already entitled to the endorsement. Mr Carter, for the applicant, said the check flight was arranged by the applicant’s flying school in the ordinary course. I was invited to infer the applicant was merely being diligent in his training.
30. I accept the applicant’s explanation that there was nothing sinister in the transfer of the entries and the discrepancies between the entries in the applicant’s two logbooks, and between those entries and the entries in Mr Jasinski’s logbook. But that does not change the fact there were discrepancies. I am satisfied the applicant’s record-keeping was unacceptably sloppy. He did not accurately record the information required under the rules imposed in section 40.1.0 CAO pursuant to CAR 5.52.
31. CASA also says the applicant consistently overstated the amount of flight time on those flights. It says “flight time” is defined in CAR 2. The applicant disputes CASA’s claim that CAR 2 provides the only permissible method of recording flight time. Mr Beard agreed with Mr Murtagh’s argument that there was a number of ways in which one could calculate flight time. They referred, for example, to flight time running from “chock to chock” or from the time when the engine starts to when it is shut down. I am inclined to the view that CASA is right: a member of the flight crew should use the definition in CAR 2 when completing his or her logbook. But I also accept the evidence that there is widespread disagreement or misunderstanding about this requirement amongst flight crew. It follows that even if I accept the applicant has technically breached the rules by miscalculating the amount of flight time, I accept it was done in good faith and as a result of a reasonable misapprehension.
should the applicant’s licence be suspended?
32. The power to suspend a private pilot’s licence is found in CAR 269. The power to suspend, vary or revoke the licence may be exercised on the following grounds set out in CAR 269(1):
(a) that the holder of the licence, certificate or authority has contravened, a provision of the Act or these regulations, including these regulations as in force by virtue of a law of a State;
(b) that the holder of the licence, certificate or authority fails to satisfy, or to continue to satisfy, any requirement prescribed by, or specified under, these regulations in relation to the obtaining or holding of such a licence or certificate or an authority;
(c) that the holder of the licence, certificate or authority has failed in his or her duty with respect to any matter affecting the safe navigation or operation of an aircraft;
(d) that the holder of the licence, certificate or authority is not a fit and proper person to have the responsibilities and exercise and perform the functions and duties of a holder of such a licence or certificate or an authority; or
(e) that the holder of the licence, certificate or authority has contravened, a direction or instruction with respect to a matter affecting the safe navigation and operation of an aircraft, being a direction or instruction that is contained in Civil Aviation Orders.
33. CASA’s “show cause” notice dated 10 May 2005 and addressed to the applicant (exhibit one, p 36 at 43) suggested CASA relied on grounds (b), (d) and (e). In the reasons for its decision dated 15 August 2005, CASA did not explicitly identify the grounds upon which it relied but it referred to the applicant not being a fit and proper person.
34. I have already found the applicant failed to comply with the regulations. The low flying incident at Raglan is the most serious of those breaches, but allowing an unauthorised person to sit in a control seat and the shortcomings I identified with respect to record keeping are also matters of concern. These breaches suggest the Tribunal has grounds to impose a sanction pursuant to CAR 269(1)(a). The fact that some of the record keeping requirements are set out in the Civil Aviation Orders means the applicant may also be dealt with under CAR 269(1)(e).
35. Mr Anastasi argued that the “fit and proper person” ground for action in CAR 269(1)(d) was also available to the Tribunal. I have not concluded the applicant was dishonest but a finding of dishonesty is not necessary in order to make out this ground. Fitness in particular is a reference to the ability to do a particular job competently. The fitness requirement is intended to protect the public from the risks flowing from having inappropriate people doing an important job: see, for example, Clyne v New South Wales Bar Association (1960) 104 CLR 186 at 202 per Dixon CJ, McTiernan, Fullagar, Menzies, and Windeyer JJ. Mr Murtagh might be a beacon of honesty but he may still be unfit to hold a pilots’ licence if he cannot obey the rules and understand and discharge the duties and responsibilities of a pilot.
36. After examining his conduct, I am satisfied Mr Murtagh is not a fit and proper person within the meaning of CAR 269(1)(d). He does not obey the rules. He is not adequately aware of what many of those rules say. He takes unwarranted risks. While I accept he has extensive experience and a good record, I think he exhibits an unhealthy disregard for rules and regulations designed to promote his safety, and that of the general public.
37. That leaves the question of penalty. CASA imposed a six month penalty. That penalty was imposed on the assumption that the applicant was dishonest on top of the other conduct that I identified. I have not found the applicant to be dishonest. If I had, I agree a six month penalty would certainly be reasonable. In the circumstances, I think a suspension for a shorter period is appropriate. The applicant’s licence should be suspended for a period of four months from the date of this decision. The period of suspension will provide an opportunity for reflection and retraining.
38. The training will be promoted as a result of two other conditions that CASA proposed would attach to the applicant’s licence when the period of suspension concluded. The conditions, set out at paragraphs 54 and 55 of the cancellation letter, read as follows:
I have decided that your flight crew licences shall be varied by the impositions of a condition under CAR 269(1) requiring you to obtain and provide to CASA within this 6 month period a certification from an Authorised Testing Officer (ATO) and CASA delegate that you have received training of a period not less than 2 hours and have satisfactorily passed an examination demonstrating your understanding of your obligations to keep accurate and honest records as a pilot, including the logging of flight time under CAO 40.1.0, subsection 10 and your obligation to conduct flights within the low flying limits set out in CAR 157.
As a further condition on your licence under CAR 269(1) I have decided that you shall be required to provide CASA on a calendar monthly basis for 1 year from the date of reinstatement of your licence following this suspension, with a copy of your personal log book page identifying flights undertaken by you as pilot in that monthly period, and certified as correct by the affixing of your signature and the signature of the operator of any aircraft you fly verifying the correctness of your personal log book entries. The documents are to be sent to CASA’s Hendra office at 39 Navigator Place Hendra Qld 4011 and marked “Attention: Team Leader flying Operations General Aviation Operations Group”.
39. I agree that these conditions are appropriate (save only that they should be amended to reflect the shorter period of suspension provided for in these reasons) because they will assist the applicant to better acquaint himself with his obligations and bring him to the level of fitness one would expect of the holder of a private pilot’s licence.
conclusion
40. The decision under review is varied. The applicant’s period of suspension is reduced from six months to four months, effective from the date of these reasons. That part of the decision imposing conditions imposing training, testing and reporting requirements upon the licence holder is affirmed save that the training and testing requirements must be completed within the period of suspension.
I certify that the 40 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member B J McCabe
Signed: Associate Adam Ryan
Date/s of Hearing 24 & 25 May 2006
Date of Decision 1 August 2006
The applicant was represented by Peter Carter, solicitor.
The respondent was represented by Adam Anastasi, a departmental advocate.
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