Nicholls and Civil Aviation Safety Authority - [2009] AATA 646

Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2009] AATA 646
ADMINISTRATIVE APPEALS TRIBUNAL )
) 2008/5161

GENERAL ADMINISTRATIVE DIVISION )

RE BRIAN KENNETH NICHOLLS

Applicant

And

CIVIL AVIATION SAFETY AUTHORITY

Respondent

DECISION

Tribunal Deputy President P E Hack SC
Date28 August 2009
PlaceBrisbane

Decision The Tribunal affirms the decision under review.

................Signed................
Deputy President

CATCHWORDS
CIVIL AVIATION – applicant holder of aeroplane licences – duties in respect to matters affecting safe navigation and operation of aircraft – requirement to be a fit and proper person – applicant’s plane made contact with terrain while attempting landing at Alice Springs’ aerodrome - applicant did not plan flight in accordance with obligations – did not obtain a forecast for an alternative aerodrome - the applicant’s descent into Alice Springs was not in accordance with obligations – failed to comply with lowest safe altitude requirements – breached duty to stay clear of cloud – circumstances of these failures also demonstrates that applicant is not a fit and proper person – ignored duties - absence of insight - decision under review affirmed.
Civil Aviation Act 1988 (Cth) s 9A,
Civil Aviation Regulations 1988 (Cth) rr 172(2), 174B(1), 239, 269(1)
Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321
Hughes and Vale Pty Ltd v New South Wales (No 2) (1955) 93 CLR 127
Re Taylor and Department of Transport (1978) 1 ALD 312
Re Griffiths and Civil Aviation Authority (1994) 34 ALD 554
REASONS FOR DECISION

28 August 2009 Deputy President P E Hack SC

Introduction

Late on the evening of 7 June 2008 the applicant, Mr Brian Nicholls, was the pilot in command and sole occupant of a Piper Seneca PA34 twin engine aircraft VH-WDP (WDP) on a flight from Coober Pedy to Alice Springs. WDP landed at Alice Springs shortly before midnight. The circumstances of the flight leading up to the landing prompted the respondent, the Civil Aviation Safety Authority, to undertake an investigation into the flight.
As a result of the investigation CASA decided that Mr Nicholls’ Commercial and Private Pilot (Aeroplane) Licences and Student Pilot Licence should be cancelled. In these proceedings Mr Nicholls seeks a review of that decision.
Factual Background
There is significant factual controversy but I will start by recording some matters that are not in dispute. Mr Nicholls is an experienced pilot who has held a Private Pilot (Aeroplane) licence since December 1971 and a Commercial Pilot (Aeroplane) licence since July 1977. His licences permitted him to fly as pilot in command of the Seneca and to do so at night under the visual flight rules (V.F.R.). He did not hold an instrument rating that would have authorised him to fly under the instrument flight rules (I.F.R.). Mr Nicholls has a total of 3,762 hours of aeronautical experience including 2,613 hours in Piper Seneca aircraft. Prior to this occasion he had landed at Alice Springs aerodrome on approximately 80 occasions, including at least 30 night landings.
On the evening of 7 June 2008 Mr Nicholls was planning to fly WDP to Alice Springs. He telephoned Airservices Australia from Coober Pedy aerodrome and obtained a weather forecast for the route to Alice Springs and a TAF[1] (terminal aerodrome forecast) for Alice Springs. The precise terms of the TAF are considered below. Mr Nicholls took off from Coober Pedy at approximately 2025 Central Standard Time[2]. He estimates that he had about five hours fuel on board the aircraft.
[1] In some of the material the term TAFOR is used.
[2] There are references in the material to UTC (Coordinated Universal Time) or Zulu. For simplicity and consistency all references will be to Central Standard Time which is the time zone for both Coober Pedy and Alice Springs.
WDP attained a cruising altitude of approximately 6,500 feet and maintained a consistent height and speed for a little over two hours. Mr Nicholls had a portable GPS unit in the cockpit with him, initially in a bracket mounted on the coaming panel. Much of what happened after WDP arrived in the vicinity of Alice Springs is also very much in issue. It is not in doubt that at 2250 Mr Nicholls advised air traffic control that he was trying to land at Alice Springs aerodrome and was unable to sight the runway lights and that at 2303 Mr Nicholls advised air traffic control “that he had hit something”. WDP was eventually able to land at Alice Springs at approximately 2343 and taxied to the western General Aviation area. Mr Nicholls was met by Mr Christopher Brand, then a member of the Northern Territory Police Force who had been seconded to the Australian Federal Police in the Joint Airports Intelligence Group. Mr Brand was, coincidentally, an experienced pilot.
Mr Brand had a brief conversation with Mr Nicholls in which Mr Nicholls acknowledged that he had made contact, possibly, with “the top of one of the ranges”. Mr Brand arranged for other police to take possession of the GPS unit. There is a dispute about the location of the GPS unit when Mr Nicholls landed in Alice Springs. Shortly after midnight, Mr Brand took a series of photographs of WDP depicting the damage to it. He took further photographs of the damage after sunrise on 8 June 2008. The steps taken by Mr Brand thereafter are also the subject of controversy and are dealt with at length below.
The legislative framework
At the outset it should be noted that that, by virtue of s 9A of the Civil Aviation Act 1988 (Cth) CASA, in exercising its powers and performing its functions must regard the safety of air navigation as the most important consideration. Necessarily, that obligation binds the Tribunal in performing its function of reviewing CASA’s decisions.
The power exercised by CASA in the present case is that in Regulation 269(1) of the Civil Aviation Regulations 1988 (Cth) (CAR) It provides that CASA may, by notice in writing, “vary, suspend or cancel the licence…where CASA is satisfied that one or more” of the grounds thereafter listed exist. The grounds relied upon here are those in paragraphs (c) and (d). They are in these terms:
“(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;”
The case for CASA makes it relevant to have regard to particular duties cast upon Mr Nicholls in the circumstances of the flight from Coober Pedy to Alice Springs. First, CAR 172(2) prohibits a pilot in command from conducting a V.F.R. flight where flight visibility and vertical and horizontal distances from cloud are not equal to or greater than distances determined by CASA. The mechanism for that determination is notified by way of Aeronautical Information Publication (AIP). AIP’s are published by Air Services Australia and provide much of the information necessary for the safe conduct of civil aviation in this country. They include the interpretation of weather data, planning requirements for alternate aerodromes, circuit procedures for aerodromes and suchlike.
It will suffice to say that the effect of the clauses 2.1 to 2.6 of section 1.23 of AIP-ENR is that V.F.R. flights must be conducted with a 1,500 metre vertical and 1,000 metre horizontal separation from cloud. Thus a V.F.R. flight must be conducted clear of cloud at all times.
CAR 174B sets out duties imposed in relation to V.F.R. flights at night in these terms:
“(1)The pilot in command of an aircraft must not fly the aircraft at night under the V.F.R. at a height of less than 1 000 feet above the highest obstacle located within 10 miles of the aircraft in flight if it is not necessary for take‑off or landing.”
It is material, as well, to have regard to CAR 239. It imposes a duty on the pilot in command to plan a flight in these terms:
“(1)Before beginning a flight, the pilot in command shall study all available information appropriate to the intended operation, and, in the cases of flights away from the vicinity of an aerodrome and all I.F.R. flights, shall make a careful study of:
(a)current weather reports and forecasts for the route to be followed and at aerodromes to be used;
(b)the airways facilities available on the route to be followed and the condition of those facilities;
(c)the condition of aerodromes to be used and their suitability for the aircraft to be used; and
(d)the air traffic control rules and procedure appertaining to the particular flight;
and the pilot shall plan the flight in relation to the information obtained.
(2)When meteorological conditions at the aerodromes of intended landing are forecast to be less than the minima specified by CASA, the pilot in command shall make provision for an alternative course of action and shall arrange for the aircraft to carry the necessary additional fuel.
….”
The parties’ cases
The case for CASA was put on the footing that either or both of CAR 269(1)(c) and (d) was engaged. It was said that Mr Nicholls had failed in his duty to plan the flight by not obtaining a forecast for an alternate aerodrome in circumstances where he was obliged to do so, failed to comply with the lowest safe altitude requirements of CAR 174B(1) and, as well, had breached his duty to stay clear of cloud by flying into cloud over Alice Springs.
Additionally, or alternatively, it was said that the circumstances of the flight and the events that followed demonstrated that Mr Nicholls was not a fit and proper person to have the responsibilities and exercise and perform the functions and duties of the licences that he held. CASA submitted that that conclusion was to be drawn from:
(a)his failure to plan the flight adequately, including a failure to properly understand the weather information provided;
(b)the descent into cloud and below the lowest safe altitude;
(c)Mr Nicholls’ absence of insight into his errors;
(d)the fact that he has fabricated a knowingly false case in an attempt to justify the conduct in question or, at least, minimise the severity of the errors.
These matters, it was said, warranted the conclusion that a cancellation of Mr Nicholls’ licences was the preferable decision.
Mr Nicholls’ case was put on the basis, at least in final submissions, that although he had made some errors in the course of the flight they were not such as warranted the cancellation of his licences; a requirement that he undertake further training could deal adequately with those errors.
It seems sensible to consider each of the matters relied upon by CASA seriatim and to make findings of fact by reference to those matters.
Flight planning
The requirements of CAR 239 have already been noticed. The practical application of that regulation in the present case is that CASA contends that the TAF for Alice Springs demonstrated that the weather forecast for the time of Mr Nicholls’ anticipated arrival was less than the specified minima and thus Mr Nicholls ought to have made, but did not make, provision for an alternate aerodrome in order to comply with the obligation in CAR 239(2) to “make provision for an alternative course of action”.
The practical application of CAR 239 is dealt with in the statement of Mr Owen Richards, an employee of CASA with vast experience in flying and flying training. CAR 239 is supported by AIP-ENR 73. The effect of clause 73.2.1 in the circumstances of the present case is that Mr Nicholls was required to provide for a suitable alternate aerodrome where his arrival in Alice Springs was to occur during the currency of, or up to 30 minutes prior to the forecast commencement of, more than scattered cloud below the alternate minima, which, under the V.F.R., was a ceiling of 1,500 feet and a visibility of 8 kilometres[3].
[3] See Clause 73.2.13.
The TAF for Alice Springs from 0600 on 7 June 2008 to 0600 on 8 June 2008 is expressed in a code that is incomprehensible to a lay person. The parties are agreed that a plain language translation of it was that it forecast wind from 120˚ at 10 knots, visibility 8000 metres in light rain, broken[4] cloud at 1200 feet and overcast cloud at 5000 feet. In addition, it warned of temporary periods of up to 60 minutes within the 24 hour span and of visibility at 5000 feet in rain with broken cloud at 1000 feet. On the face of it, this was a forecast of cloud more than scattered and below the permitted minimum ceiling of 1,500 feet.
[4] The hierarchy of clouds is FEW (few), SCT (scattered), BKN (broken) and OVC (overcast). A clear sky is reported as SKC.
Mr Nicholls has given varying accounts of the details provided to him when he contacted Air Services Australia before departing from Coober Pedy. In a letter to CASA of 15 September 2008 Mr Nicholls said:
“The weather presented to me was clear of cloud enroute and for landing at Alice Springs. There has [sic] been some rain in the area over days but Air Services gave me a forecast clear.”
Then in a statement dated 15 April 2009[5] Mr Nicholls spoke of having obtained the TAF for Alice Springs and having written down the details. He continued:
[5] Exhibit 5 at paragraph [3].
“The TAFOR was wind 120/10 visibility 8000 metres Rain Showers, Overcast at 5,000 Scat Cloud 1200’ in rain showers, Temps 11,11,10,9 QNH 1021.”
In the course of the hearing Mr Nicholls produced the handwritten note that he said he had made of the information provided to him. It records the following:
“TAF AS
120/10 V8000m RAN
1200’Breaking
OVC 5000
5000 5000 cld 1000
11 11 10 09 1021”
As the submissions for CASA rightly observe there is nothing in this note that suggests any reference to the “scattered cloud” referred to in Mr Nicholls’ statement. Had the TAF been of scattered cloud there would have been no requirement on Mr Nicholls to provide for a suitable alternate destination aerodrome; that requirement only comes into consideration if the cloud is at least broken. In cross-examination Mr Nicholls maintained that he had been told of a forecast for “scattered cloud” but had not recorded that detail in his contemporaneous note. The reference to “breaking” on his note was not a reference to breaking or broken cloud, rather, he said, it was a reference to a conversation in which he had been told that the weather was breaking. But Mr Richards gave evidence that the notion of breaking weather is foreign to TAF forecasts. Moreover it is not at all clear to me what “breaking” weather might be. Seemingly the adjective conveys the idea that the weather is changing however I would not have thought that it conveyed a clear view on whether that change was to better or worse weather conditions.
The two key elements of Mr Nicholls’ evidence are that he was told that the cloud was scattered and that he was told that the weather was breaking. I am unable to accept the evidence on either score. As will appear, there is much that gives me cause for concern about the reliability of Mr Nicholls’ evidence. But I find it quite implausible that the person providing the TAF to Mr Nicholls would wrongly describe the clouds as scattered when the document from which that operator must have been reading described the clouds as broken. Similarly I find it implausible that reference would be made to a weather feature i.e. breaking weather, which is not recognized in aviation forecasting and which is, in any event, meaningless.
The likelihood, in my view, is that Mr Nicholls was told of broken cloud, not scattered cloud and breaking weather. That being so he has breached his duty to plan for a suitable alternate aerodrome. It is not an answer to suggest, as do Mr Nicholls’ written submissions, that Mr Nicholls had enough fuel on board to fly to an alternate aerodrome if required. That is a separate and explicit requirement. The whole point of the requirement to provide for a suitable alternative is to know in advance, and before departure, whether that alternate is “suitable”. A pilot in command cannot know whether an alternate is suitable without at least knowing what the forecast is for the weather at the alternate. There may well be other matters about the alternate that the pilot in command will need to know before an alternate may be regarded as suitable but I need not decide that issue in these proceedings. It is enough to conclude that I am satisfied that Mr Nicholls, by not obtaining a TAF for a suitable alternate aerodrome when he was obliged to do so, breached his duty to make provision for an alternative course of action.
Similarly, I do not accept, as was also put in Mr Nicholls’ final submissions, that it was possible for a pilot to discharge the duty by ascertaining the forecast at the alternate when weather precludes landing at the primary destination. Since Mr Nicholls did not suggest that he had done that it is unnecessary to decide whether he would have discharged his CAR 239(2) duty by doing so.
The descent
This aspect of CASA’s case relies upon the accuracy of the data downloaded from the GPS unit in WDP after it had been seized by a member of the Australian Federal Police. The GPS unit produces a continuous stream of data at intervals varying from five seconds to about 30 seconds which have been recorded in a print-out as a series of columns showing a sequential number, date and time, elevation, distance travelled in the preceding period, the duration of the preceding period, ground speed, heading and latitude and longitude. Subsequently that data was plotted onto a map[6] that showed the path of WDP in and around Alice Springs.
[6] Exhibit 22.
Mr Nicholls contends that the data cannot be relied upon. First, it was said that during flight the instrument was on the floor of the cockpit or on the empty seat and rolling about. Assuming that to be so (and there is much reason to doubt the truth of Mr Nicholls’ assertion that it was) there is no evidence that that would make any difference to the reliability of the data. On the contrary, the evidence of Mr Ian Mallet, a CASA employee with enormous theoretical and practical experience with GPS systems, was that any rolling around would not have had any effect on the signal being received “or on the validity of the data which was downloaded.”[7]
[7] Exhibit 29, paragraph 18.
Next it is said that the data could not be regarded as being reliable as the particular system was not fitted with RAIM (random autonomous integrity monitoring) and did not satisfy the technical requirements for use as a tracking aid nor for aircraft separation purposes. It may be accepted that the system did not have these features however there is no evidence, only rhetorical questioning in Mr Nicholls’ written submissions, to suggest that the absence of these features would detract from the
reliability of the downloaded data. I accept, as Mr Mallet said, that the instrument used by Mr Nicholls “would have similar accuracy in lateral and vertical modes as a certified IFR receiver.”[8] The difference was that Mr Nicholls’ unit did not have “integrity protection” i.e. RAIM, a system that automatically self-tests and notifies the pilot of any internal error.
[8] Exhibit 29, paragraph 15.
It is also pertinent to observe, at this juncture, that the data extracted from Mr Nicholls’ instrument correlates very precisely with the location and height data for the known reference points at Coober Pedy and Alice Springs. Additionally, the altitude readout for the flight from Coober Pedy shows WDP cruising at 6,500 feet (give or take approximately 100 feet) from 2040 to 2228. That accords with Mr Nicholls’ statement that the “flight to Alice Springs was uneventful at 6,500 feet.”[9]
[9] Exhibit 5, paragraph [6].

But the lynchpin of Mr Nicholls’ contention that the data was unreliable lay in his contention that contact with the terrain was not made at the location to the south-west of Alice Springs where the GPS data, and the evidence of Mr Brand, suggest that it did. Rather, it was said, that contact occurred to the north of Alice Springs when Mr Nicholls made contact with trees on the Ilparpa Ranges to the north of Alice Springs. That raises for consideration the various conflicts in the evidence of Mr Nichols and Mr Brand and, in particular, the allegation implicit in Mr Nicholls’ case that Mr Brand has given knowingly false evidence and, perhaps with others, has conspired to fabricate evidence against him.
Mr Brand’s dealing in this matter commenced when he was contacted at his home at 2305 on 7 June 2008 and was told that WDP was in trouble and that the pilot was unable to locate the runway. That accords with the report to Air Traffic Control at 2250 that WDP “could not sight the runway lights”[10]. Mr Brand arrived at the aerodrome, a distance of some seven nautical miles from the township, at 2325. Between the town and the aerodrome and at the aerodrome it was raining with low cloud. Mr Brand rejected the proposition put to him that it was fog rather than cloud that was affecting the aerodrome and that the weather was clear in and around the town.
[10] See Exhibit 1 at page 8. The time references in that document are to UTC which is 9.5 hours behind CST.
Mr Brand observed that the runway lights on runway 12/30 were functioning correctly. He estimated visibility of approximately 1,000 metres and that there was a cloud base at 200 to 300 feet. Over the next 15 minutes or so until WDP finally landed around 2340 Mr Brand caught occasional glimpses of the aircraft and heard its engine noise from time to time. As WDP landed Mr Brand says that he was able to observe three navigation lights – one on the tail and one on each wing.
Once WDP had taxied to the general aviation area and shut down Mr Brand went over to WDP and observed damage to the wings, fuselage, propellers, engine cowls, tail, horizontal stabiliser and vertical stabiliser. He asked Mr Nicholls what he believed that he had hit. Mr Nicholls said:
“I don’t know, the top of one of the ranges.”
There was further conversation between Mr Brand and Mr Nicholls. Mr Nicholls describes Mr Brand’s manner as “very aggressive” and says that Mr Brand threatened him with arrest and “kept” him at the airport until 0530. Mr Brand took a series of photographs of the damage to WDP at 0010 on 8 June 2008 and further photographs after sunrise that day.
On 9 June 2008 Mr Brand climbed part of the Ilparpa Range but was unable to locate any area that indicated contact with the terrain by an aircraft. Subsequently Mr Brand downloaded the date from Mr Nicholls’ GPS unit and produced a print-out of the data. Mr Brand says that on 11 June 2008, and using information from the print-out, he attended at a location 10.1 km southwest of Alice Springs aerodrome at S23 53 15.6 E 133 53 08.9 where he says he observed aircraft debris and marks on the ground and in the foliage consistent with WDP making contact with the terrain in that location. On that day and the following he photographed the area and measured a distance of 98 metres between what he regarded as the initial impact point and the last of the foliage damage.
As I have said Mr Nicholls disputes the location of the contact by WDP with the terrain. He produced a series of photographs designed to show that the location was not to the south-west, but to the north, of Alice Springs. Those photographs included some taken at the rear of the Australian Federal Police Headquarters in Alice Springs. The suggestion put was that some, at least, of Mr Brand’s photographs had been taken at that location.
The written submissions lodged by Mr Clough, for the solicitor for Mr Nicholls mount a quite extraordinary attack on the credit and reliability of Mr Brand. The submission was put in language that was both florid and intemperate. I reject the attack on Mr Brand for the reasons that follow.
When stripped of the rhetorical flourishes – for example, a reference to Mr Brand’s “chutzpah” and a reminder that Mr Brand “worked for the same organization that gave Australia, the Mohammed Haneff [sic] fiasco” – eight particular reasons were advanced why Mr Brand’s evidence ought not to have been accepted.
First, it is said, that Mr Brand’s evidence of having seen all three navigation lights on WDP ought be rejected. That, was so, it was said, because CAR 196, which prescribes the way in which navigation lights are to be displayed, suggested that it was not possible to see all three navigation lights at one time. I am unable to read CAR 196 in this way and unfortunately the opportunity was not taken to take up this issue with either of the experienced pilots who gave evidence in CASA’s case. I can see no reason why I ought accept an explanation proffered in Mr Nicholls’ written submissions when the opportunity to canvass this issue with other witnesses was not taken.
Next it was said that the automatic weather reports from Alice Springs aerodrome contradicted Mr Brand’s evidence of his observations of drizzle. Reference to those documents[11] show that at 2200, the last report compiled by an observer, there was light drizzle and that 9.8mm had been recorded since 0900 that day. Thereafter the automated weather reports until 23.30 show no increase in rain fall from the 9.8mm earlier recorded. It is said that Mr Brand’s evidence was at variance from the objective reports in two ways – because the automated weather reports for the period between 2300 and 2400 do not report any observations of drizzle and because no increase in rainfall is reported over that period.
[11] The plain English translations appear in Exhibit 33.
There is nothing in the first point since on my understanding of the weather reports those after 2200 were automated and thus devoid of the necessarily human observations of visibility, weather and cloud.
The second aspect of this criticism has some substance however it is of limited worth in attacking the credit or reliability of Mr Brand. It is not clear to me what effect drizzle (as Mr Brand described it) would be expected to have on the rainfall recordings. But in any event it is Mr Brand’s observations of cloud, not of rainfall, that are critical.
Then it is said, by reference to the photographs in Exhibit 27 taken by Mr Brand and those taken by Mr Nicholls in Exhibit 6 and 7, that I ought conclude from the outline of hills in the background that Mr Brand’s evidence that the Exhibit 27 photographs were taken at the crash site identified by him in the south-west of Alice Springs was wrong, and deliberately so, and that in truth the photographs were taken at the rear of the Alice Springs Australian Federal Police base.
I am unable to discern the similarity said to exist but, in any event, I would have thought that before that comparison was to be made it would need to be established that the lenses used to capture the images were identical in each case.
Criticism is then made of Mr Brand’s observations of the cloud cover and his evidence of a cloud base at 200 to 300 feet. That evidence was compared, unfavourably with the recorded observation of a Mr Simon Hatfield the “ARO”[12] for Alice Springs that the cloud base was 500 to 1000 feet. Given that Mr Nicholls says that there was no cloud and that it was fog that impeded his visibility this seems to be a curious comparison to draw. Nonetheless I accept that it might suggest that Mr Brand is fallible on this minor aspect of the matter. Equally, it might suggest that Mr Hatfield (who was not called) is fallible. Either way there is nothing in the point.
[12] I am unaware what this acronym stands for.
The next point relied upon is that Mr Brand’s evidence of having located the crash site cannot be correct because, according to the GPS data, Mr Nicholls was at that location and necessarily on Mr Brand’s account came into contact with the terrain at 2254 yet did not report the collision until some 9 minutes later, “an inordinate delay”, it is said. So much may be accepted. The error in the asserted logic is in the next submission:
“It does not stand to reason that in the event of an unspecified collision with anything that a pilot would delay what may be a life saving transmission in excess of 9 minutes but that is what Mr Bland [sic] alleges by his deduction based on the GPS data.”
It may not stand to reason to delay making the transmission but that assumes that Mr Nicholls was acting rationally and reasonably when, in circumstances of limited visibility, he came into collision with the terrain. Much of what Mr Nicholls did that evening can be demonstrated by objective evidence to have been quite irrational. I can see no basis upon which I should conclude that Mr Nicholls acted rationally in the immediate aftermath of the collision. Thus I reject this process of reasoning as a basis for a rejection of Mr Brand’s evidence.
Moreover Mr Brand’s evidence of his observations of the evidence of debris and other indicia of a collision at this site is objectively verified by the GPS data. I have already rejected Mr Nicholls’ contention that the GPS data cannot be relied upon. There is no reason to conclude that the data was unreliable, indeed, for the reasons recited in paragraph 28 to 30 above, there is every reason to be satisfied, as I am, that the data was reliable.
Then it is said, at least by implication, that Mr Brand took the red lens from the tail beacon of WDP after it had landed and took it to “his” crash site to demonstrate by photographs the collision by WDP. The elements of this argument appear to be:
(a)Mr Nicholls said that the red tail beacon was operating after landing;
(b)CASA has not explained how the lens cover, but not the surrounding parts, was damaged by impact;
(c)Mr Brand, by threatening Mr Nicholls with arrest if he returned to WDP, created the opportunity to take the lens cover from WDP;
(d)Mr Brand took photographs of the interior of WDP and for that purpose, opened the cockpit “without any evidence of a search warrant, permission or other authority” and “interfered with the configuration of the aircraft by lowering the seats and photographing the interior of the aircraft.”
What remains unexplained in this theory is what could possibly have motivated Mr Brand to fabricate and tamper with evidence and to give perjured evidence. The more logical explanation, and that which I accept, is that Mr Brand did not act in the way suggested and that he is giving honest evidence which is supported by the evidence of the GPS data.
The next attack relies upon an examination that I am invited to make the damage to the underside of the aircraft as depicted in the photographs. The absence of damage to the transponder and marker antenna aerials and to the undercarriage doors or underside of the aircraft at the front of the fuselage would cause me, it was said, to “have serious doubts as to Mr Brand’s evidence…that the underside of the aircraft was badly or seriously damaged.”
Examination of the photographs, in particular photographs 14 and 16 of Exhibit 27 demonstrate, to me at least, considerable damage.
A further appeal is then made in Mr Nicholls’ submission to “common sense” as demonstrating that a propeller making contact with “a hard surface such as sandy loam they will bend backwards”. The absence of a photograph demonstrating this feature demonstrates that Mr Brand’s evidence “is most unreliable”. This “common sense” proposition is not self-evident to me. On the contrary I would have thought that a propeller would be more likely to be able to travel through sandy loam soil without distorting.
The final matter relied upon is a comparison between the damage evident in a newspaper photograph[13] and photograph 3 of Exhibit 27 taken by Mr Brand. It is said that the two photographs “are quite different in fibreglass content and exposure” and that I “may have a doubt objectively as to the content of the fibreglass from Mr Brand’s photograph as opposed to the newspaper photograph”.
[13] Exhibit 10.
I am unable to accept the factual premise of the proposition as I am unable to discern the difference between the two photographs. It is obvious that they are taken at different angles and in differing lighting conditions. The apparent differences between the photographs may well be explicable on that basis. But even it I were persuaded that there were significant differences (and I am not) no reason is advanced why I ought infer from that conclusion that Mr Brand’s evidence ought not be accepted. The submission hints at a suggestion that Mr Brand has tampered with the damage evident on WDP. If that is the suggestion being made I reject it. It is utterly devoid of any foundation.
As is evident, none of the criticisms of Mr Brand advanced by Mr Nicholls causes me any real concern about the critical aspects of Mr Brand’s evidence. I should say that I regarded him as an impressive witness. Self-evidently he approached his task of investigating the circumstances of this incident with the trained eye of an investigator. I saw absolutely no evidence that he acted other than as an objective investigator into the circumstances of the collision. And, as I have already observed, the critical evidence he gives about the location of the crash site is corroborated by the GPS data.
Mr Nicholls, on the other hand, did not impress me. He was argumentative and his evidence was replete with self-justification. He may have persuaded himself of the accuracy of his account of events that evening but I reject it because it is flatly contradicted by the objective evidence of the GPS data and by the evidence of Mr Brand which I accept. Moreover it seems to me to be plain from the letter sent by Mr Nicholls to CASA, the statement of 15 April 2009 and Mr Nicholls’ handwritten note that his account of critical details has altered significantly over time. Mr Nicholls’ account on this aspect of the matter has a disturbing degree of flexibility.
His original letter speaks of having been given “a forecast clear” and of weather “clear of cloud enroute and for landing at Alice Springs”. That cannot have been true and he must have known that it was not true because he recorded “breaking” on his note. Then the statement refers to ”Scat Cloud…in rain showers”. That is inconsistent, of course, with “a forecast clear” and equally inconsistent with his subsequent evidence and with the handwritten note.
I am satisfied that the accounts of events given by Mr Nicholls on this critical aspect of the matter have simply been concocted. I am unable to place any reliance on Mr Nicholls’ evidence of matters in issue and on those matters prefer the evidence of Mr Brand.
It follows from this conclusion that I am satisfied by the evidence of Mr Brand that the weather conditions at the Alice Springs aerodrome, and in particular the cloud cover, were as he described them. Importantly, I am satisfied that it was cloud and not a localised fog that obscured Mr Nicholls’ visibility that evening.
My rejection of Mr Nicholls’ evidence and my acceptance of the accuracy of the GPS data and the evidence of Mr Brand leads me to the following conclusions:
(a) Mr Nicholls arrived overhead of the Alice Springs aerodrome at 2239 at an altitude of 2700;
(b) low cloud prevented Mr Nicholls from seeing the aerodrome runway lighting;
(c) thereafter until about 2250 Mr Nicholls undertook a series of left hand orbits at an elevation of 3000 feet or thereabouts;
(d) at 2250 Mr Nicholls advised ATC of his inability to sight the runway lights;
(e) from that point control of WDP became more erratic with a descent of some 1500 feet (from 3326 feet to 1759 feet) in about 78 seconds;
(f) at 2254 WDP impacted terrain to the southwest of Alice Springs at 1759 feet;
(g) erratic control continued thereafter with ground speed varying considerably;
(h) at 2303 Mr Nicholls reported the impact to ATC;
(i) thereafter Mr Nicholls flew erratically to the west, southwest and south of Alice Springs in the manner graphically illustrated in Exhibit 22 before finally landing at 2341.
I am thus satisfied that Mr Nicholls breached the duty under CAR 174B on his arrival overhead of Alice Springs and in the descent that preceded the impact with terrain. The impact, of course, demonstrates the purpose of the duty. Equally I am satisfied, as Mr Richards suggests and as the GPS data confirms, that Mr Nicholls became disoriented, most likely because he failed to remain clear of cloud.
Absence of insight
Human nature being what it is pilots in command will, from time to time, fall into error. As it seems to me, a pilot with a proper appreciation of the importance of safety will take the opportunity to reflect upon the error and analyse what lead to it in order to prevent a recurrence. There should be, I would think, an appreciation of the fact of the error. But I see none of that in Mr Nicholls. His response, by letter of 15 September 2008, to CASA’s “show cause” notice contains no suggestion that Mr Nicholls has any appreciation of the mistake that he made on the evening of 7 June 2008.
That lack of insight was mirrored in his statement and in his evidence. He claimed that he had done nothing wrong and the forecast he had been given for Alice Springs was “misleading” and “defective”.
A knowingly false account
It is hard to avoid the conclusion that Mr Nicholls’ account of events is knowingly false. The more charitable view is that he was mistaken in his recollection of events but has, with the benefit of hindsight and reconstruction, persuaded himself of the correctness of his account and, necessarily, the falsity of any contrary account.
Ultimately I need not decide whether his account is knowingly false because I am able to reach conclusions sufficient to dispose of the case without reference to the point.
A failure of duty
It follows from the findings that I have made that I am satisfied that Mr Nicholls failed in his duty with respect to matters affecting the safe navigation or operation of WDP.
He breached the duty to make provision for an alternative course of action when forecast weather conditions obliged him to do so. He flew below the minimum permissible height. Most likely, he flew in cloud.
Thus I am satisfied that the ground specified in CAR 269(1)(c) is made out.
A fit and proper person
It is, of course, to be remembered that in considering the issue of a fit and proper person it is unwise to attempt to define the matters that may be legitimately enquired into and that each case must depend upon its own circumstances[14]. But in the present context it is possible to say that a fit and proper pilot is one who has an appreciation of the statutory responsibilities and who discharges them[15]. In Re Taylor and Department of Transport[16] the Tribunal was considering reg 258 of the Air Navigation Regulations, the statutory precursor to CAR 269 and relevantly identical to it. The Tribunal said[17],
“In the context of reg 258(1)(d), the enquiry whether the applicant is a ‘fit and proper person’ is directly focused upon the fitness and the propriety of the applicant exercising the ‘responsibilities’ and performing the ‘functions’ and ‘duties’ of the holder of a licence – in this case a commercial pilot licence. It is not simply a question of competence to fly an aircraft which the Secretary must consider for this purpose.
In our view, what the regulation requires is a consideration of the applicant's conduct measured against the responsibilities, functions and duties of the holder of a commercial pilot licence as they emerge from the provisions of the Air Navigation Regulations. Whilst it would be inappropriate to endeavour to catalogue those responsibilities, functions and duties in any exhaustive fashion, it is clear that they include observing the interests of the safety of air navigation – not only the interests of pilots, passengers and the owners of aircraft, but also the interests of the public at large.”
[14]       Hughes and Vale Pty Ltd v New South Wales (No 2) (1955) 93 CLR 127 at 157.
[15]       Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 349.
[16] (1978) 1 ALD 312.
[17]       At page 321.

That passage has been applied in many subsequent decisions of the Tribunal[18]. In my view it is appropriate to apply it in the present case.
[18] See e.g. Re Griffiths and Civil Aviation Authority (1994) 34 ALD 554
I should note at the outset of this discussion that Mr Nicholls conceded at the outset and during the conduct of his case that he ought undertake more training. The final paragraph of the stated grounds of his application to the Tribunal suggests that,
“he should be permitted to complete 5 hours ground tuition in bad weather operations and 5 hours actual flying training in bad weather instrument procedures to assist him to handle unusual weather conditions better…”
To similar effect this was said in the written submissions for Mr Nicholls:
“In my submission, my client would benefit from undertaking about 10 hours of ground school training in weather appreciation, flight planning and experience in decision making when the weather he expected turns adverse and especially handling of his aircraft in both azimuth and elevation when conducting an approach in adverse weather. My client needs a degree of mentoring in his thinking. Additionally, I submit that my client would benefit from about 10 hours flying experience to renew his handling skills in capturing a heading or radial, tracking inbound and outbound on a bearing or radial and general instrument handling qualities. At the completion of such training my client should undergo a flight test with an industry examiner or ATO to ensure he has advanced his skill to an acceptable standard.”
In my view these concessions make it abundantly clear that Mr Nicholls is not a fit and proper person “to have the responsibilities and exercise and perform the functions and duties” of a pilot. A “fit and proper” pilot is one who already has the attributes that the submission suggests Mr Nicholls needs.
But, independent of the concessions made, I am satisfied that Mr Nicholls’ conduct as a pilot in command on that evening demonstrated the same conclusion.
Mr Nicholls’ flight planning was inadequate. He appears to have an inadequate grasp of the technical details of the weather forecast. He arrived over Alice Springs at a height below the minimum permitted. When confronted with the inability to see the runway lights he did not contemplate an alternate nor take steps to notify ATC of his dilemma or seek guidance. He descended, quite foolishly in my opinion, without any clear idea of where he was or of any obstacles in his path. It is not apparent to me that Mr Nicholls gave any thought to the overriding consideration of safety. Instead, in my view, he was over reliant upon his own experience and simply ignored the duties imposed upon him. And, in my view, Mr Nicholls’ conduct on the night is exacerbated by his lack of appreciation of the gravity of his conduct.
It is undoubtedly correct that Mr Nicholls requires more training. In my view he requires additional training to properly equip him to have the responsibilities and exercise and perform the functions of a pilot. Perhaps after additional training he can persuade CASA that he is a fit and proper person. That is a decision for another day. At present the findings I have made satisfy me of the matters in CAR 269(1)(d).
I add, that in reaching this conclusion I pay no regard to the matters from 1989. The vintage of these events is such that I regard them as having no bearing on the question of whether Mr Nicholls is now a fit and proper person.
The preferable decision
In light of my conclusion that both of CAR 269(1)(c) and (d) are satisfied the discretion to vary, suspend or cancel Mr Nicholls’ licences in enlivened. It was not suggested in argument, nor, in my view, is it open to be suggested, that some variation to the terms of Mr Nicholls’ licences would deal adequately with his demonstrated failings. The question is one of either suspension or cancellation.
I consider cancellation to be the only conclusion open on the material before me. The lapses by Mr Nicholls satisfy me that he is not a fit and proper person to hold the licences. Once that conclusion is reached it is difficult to see how any decision short of cancellation could be warranted. Certainly this is not such a case.
It follows that I would affirm the decision under review.
I certify that the 80 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President P E Hack SC
Signed:         .........................Signed............................................
  Lynne Stalley, Administrative Assistant
Dates of Hearing  21 - 22 April 2009 and 5 August 2009
Date of Decision  28 August 2009
Solicitor for the Applicant          Mr P Clough
Solicitor for the Respondent     Mr J Rule

GENERAL ADMINISTRATIVE DIVISION		)
RE		BRIAN KENNETH NICHOLLS