Oasis Flight Training Pty Ltd and Civil Aviation Safety Authority - [2013] AATA 600

[2013] AATA 600

Division GENERAL ADMINISTRATIVE DIVISION

File Number

2012/4999

Re

Oasis Flight Training Pty Ltd

APPLICANT

And

Civil Aviation Safety Authority

RESPONDENT

DECISION

Tribunal
Egon Fice, Senior Member

Date 23 August 2013

Place Melbourne
The Tribunal affirms the decision of the Civil Aviation Safety Authority dated
2 November 2012.
.......[sgd Egon Fice].................................................................
Egon Fice, Senior Member
AVIATION – Air Operator’s Certificate – Flying training – General aviation charter and aerial work – Safety Rules – Smoking within 15m of an aircraft – Restriction on advertising of commercial operations – Recreational aircraft and flying training – Infringement notices – Allowing a student to fly solo in an aircraft without a licence – False and misleading information on an AOC application – Standard of proof
Legislation
Civil Aviation Act 1988 (Cth) ss 3, 9A, 20AB, 27, 28, 29, 30DB, 30DC, 31
Criminal Code Act 1995 (Cth) ss 9.1, 9.2, 136.1
Regulations
Civil Aviation Regulations 1988 (Cth) regs 5.20, 206, 210, 269, 282, 289, 296F, 308
Civil Aviation Safety Regulations 1998 (Cth)
Order
Civil Aviation Order 95.55
Cases
Briginshaw v Briginshaw (1938) 60 CLR 336
Civil Aviation Safety Authority v Boatman [2006] FCA 460
George v Rockett (1990) 170 CLR 104
Jones v Dunkel (1959) 101 CLR 298
Phillips and Inspector-General in Bankruptcy [2012] AATA 788
Rejfek v McElroy (1965) 112 CLR 517
REASONS FOR DECISION
Egon Fice, Senior Member
23 August 2013

Mr Kristos Konstandopoulos, who is the sole director of Oasis Flight Training Pty Ltd (Oasis), lodged an application with the Civil Aviation Safety Authority (CASA) on 23 March 2011 for the issue of an Air Operator’s Certificate (AOC) to permit the conduct of General Aviation (GA) charter and aerial work operations (including flying training).
Oasis currently operates a flying training School at Moorabbin airport using recreational (formerly referred to as ultra-light) aircraft operated under Civil Aviation Order 95.55 (CAO 95.55). Approval for that operation was granted by Recreational Aviation Australia Incorporated (RA-Aus), a CASA approved organisation. In essence, CAO 95.55 applies to single place or two place lightweight recreational aircraft, registered by RA-Aus, and whose weight does not exceed 600 kg. It does not apply to GA aircraft.
In his AOC application, Mr Konstandopoulos named himself as the Chief Executive Officer/Managing Director of Oasis which was to hold the AOC as well as the nominated Head of Flying Operations (Chief Pilot) and Head of Aircraft Maintenance. He also nominated himself for the position of Chief Flying Instructor. On 25 January 2012

Mr Konstandopoulos also applied for approval as an Approved Testing Officer (General Aviation), indicating that he had applied for an AOC and needed to have this delegation in order to test students who conducted flight training with Oasis.
On 17 May 2012, prior to his AOC application being determined, CASA issued

Mr Konstandopoulos with an infringement notice alleging that Oasis had advertised claiming to undertake, by use of Australian aircraft, a commercial operation while it did not hold an AOC authorising that operation. Also on that day a CASA officer,

Mr Maxwell McGregor, Manager, Operations Southern Region, sent a recommendation to Mr Mark Taylor, Manager, Permissions Applications Centre, stating that Southern Region Office was not satisfied that Mr Konstandopoulos met, or was capable of meeting the requirements for the issue of an AOC.
In a letter dated 2 July 2012 CASA informed Mr Konstandopoulos that it proposed to refuse to issue an AOC to Oasis. CASA invited Mr Konstandopoulos to attend a show cause conference to allow him to make a case against the proposed recommendation. That letter also informed Mr Konstandopoulos of his rights to seek review before the Tribunal. Mr Konstandopoulos attended a show cause conference with CASA on

9 August 2012.
On 11 September 2012 CASA sent to Mr Konstandopoulos a further notice stating that it remained of the view that the AOC application lodged by Oasis should be refused. It again invited Mr Konstandopoulos to respond to that notice. Maitland Lawyers, acting on behalf of Oasis, responded on 17 September 2012. CASA, having had regard to Mr Konstandopoulos' responses to the two show cause notices, on 1 November 2012 again recommended that the issue of an AOC to Oasis be refused.
In a letter dated 2 November 2012 CASA notified Oasis that it refused to issue an AOC. Mr Konstandopoulos on behalf of Oasis lodged an application for review with the Tribunal on 5 November 2012. Section 31 of the Civil Aviation Act 1988 (the CA Act) makes provision for the review of decisions as follows:
… reviewable decision means:
(a)a refusal to grant or issue, or a cancellation, suspension or variation of, a certificate, permission, permit or licence granted or issued under this Act or the regulations;…
(2) Application may be made to the Administrative Appeals Tribunal for review of a reviewable decision.
I am required to determine whether the decision made by CASA on 2 November 2012 to refuse to grant Oasis an AOC was the correct decision. The issues which arise in making that determination are those which CASA must consider and be satisfied about before it can issue an AOC. In this matter, they are whether:
(a)Oasis has complied with, or is capable of complying with the provisions of the regulations and the CAO's relating to safety;
(b)the organisation is suitable to ensure that the AOC operations can be conducted or carried out safely;
(c)the organisation's chain of command is appropriate to ensure that the AOC operations can be conducted or carried out safely; and
(d)the organisation has a sufficient number of suitably qualified and competent employees to conduct the AOC operations safely.
THE ISSUE OF AOCS GENERALLY
Subdivision D of Division 2, Part III of the CA Act deals generally with the issue of AOCs. Section 28, in so far as it is relevant to this matter, provides:
28 CASA must issue AOC if satisfied about certain matters
(1) If a person applies to CASA for an AOC, CASA must issue the AOC if, and only if:
(a)CASA is satisfied that the applicant has complied with, or is capable of complying with the safety rules; and
(b)CASA is satisfied about the following matters in relation to the applicant's organisation:
(i)      the organisation is suitable to ensure that the AOC operations can be conducted or carried out safely, having regard to the nature of the AOC operations;
(ii)     the organisation's chain of command is appropriate to ensure that the AOC operations can be conducted or carried out safely;
(iii)    the organisation has a sufficient number of suitably qualified and competent employees to conduct or carry out the AOC operations safely;
(iv)     key personnel in the organisation have appropriate experience in air operations to conduct or carry out the AOC operations safely;…
It should be immediately apparent from the provisions I have quoted above, and in particular s. 28(1)(a) of the CA Act, that CASA must examine the history of an applicant, without reservation, in order to determine whether an applicant has complied with safety rules. That history, and in particular the more recent history, may be an indicator of whether an applicant will comply with safety rules in the future. The expression safety rules is defined in s. 3 of the CA Act as:
safety rules, in relation to a permission or AOC, means the provisions of this Act, the regulations and the Civil Aviation Orders that relate to safety (including rules about the competence of persons to do anything that would be covered by the permission or AOC).
2007 – 2008 INFRINGEMENT NOTICES
According to the evidence before me, Mr Konstandopoulos first came to the attention of CASA in an adverse way in May 2007. Shortly prior to that incident, on 3 February 2007, Oasis made an application for a charter and aerial work AOC. It appears that Mr Konstandopoulos, in anticipation of being granted an AOC, advertised on the Oasis website that it could provide charter and flying training. CASA issued an infringement notice (07-0051) on the grounds that Oasis had breached Civil Aviation Regulations 1988 (CAR) 210. That regulation provides:
210 Restriction of advertising of commercial operations
(1) A person must not give public notice, by newspaper advertisement, broadcast statement or any other means of public announcement, to the effect that a person is willing to undertake by use of an Australian aircraft any commercial operations if the last-mentioned person has not obtained an Air Operator's Certificate authorising the conduct of those operations.
Penalty: 10 penalty units.
(2) An offence against subregulation (1) is an offence of strict liability.
In fact, in a letter dated 29 May 2007 from CASA, it was said that the Moorabbin Field Office alerted Mr Konstandopoulos to the restrictions set out in CAR 210 and that despite being informed of those restrictions, he continued to advertise commercial operations on the Oasis website. In its statement of facts, issues and contentions, CASA said Mr Konstandopoulos subsequently paid a fine of $550 and lost one demerit point from his pilot licence. On the evidence before me, the prescribed penalty for that offence was $110 and not the $550 claimed by CASA.
In a written statement dated 11 January 2013 made by Mr Konstandopoulos, which was admitted into evidence, he said that he was authorised to conduct flying training in Australian aircraft pursuant to a Certificate of Approval issued by RA-Aus. He said he was in the process of making an application for an AOC and a CASA Flight Operations Inspector (FOI), Mr Priest, said to him:… words to the effect that reference to charter in the advertising would not be an adverse issue with CASA as I was in the process of obtaining an AOC. I informed CASA of the representation made by FOI Priest and paid the penalty with no admission as to fault.
However, despite what Mr Konstandopoulos said in his witness statement, I had in evidence the copy of an e-mail sent by Mr Priest to Oasis Flight Training on 18 May 2007, some 11 days prior to CASA informing him that he was in breach of CAR 210 and that an infringement notice would issue. Mr Priest said: I have also, today, spoken with CASA's legal counsel who confirmed, according to the description I gave, that your website (e.g. is in breach of CAR 210. Therefore this must be immediately altered to comply, otherwise CASA will be obligated to consider further action. In fact, Mr Priest sent an internal e-mail to another CASA officer on 25 May 2007 stating that, to the best of his knowledge, the Oasis website breached CAR 210. Mr Priest repeated the quote I have referred to above and added:
This is the first advise (sic) in writing I have given to Kris, but it was not the first advise (sic). I verbally advised him that I believed this to be in breach of CAR 210 in a phone call with Kris on Saturday morning 12th May, and again when I had an extensive discussion with him on 18th May 2007 over the issues I had found with his Operations Manual.
Consequently, I believe that while Kris remains non-compliant with CAR 210 (and I just checked the website now to see if any appropriate changes had been made – which is what I wrote to him to do) CASA should suspend his application, and consider issuing him with an admin fine.
Please note he has made a change to his website viz:
"We provide the flight training for GA under MAS AOC and the charter under Oasis Flight Training AOC"…
However MAS is not defined, nor is he still compliant in that the website is advertising that he has an AOC (namely Oasis Flight Training).
It also raises the question of whether, after having been informed that this on three occasions now, whether he is demonstrating a satisfactory record in the conduct or management of flying operations (CAO 82.0 appendix 1, 1.3 (a)).
Mr Konstandopoulos wrote to CASA on 6 June 2007 regarding the infringement notice which he had received by that time requesting an extension of time to pay and also to having it withdrawn. In that letter Mr Konstandopoulos said he explained to Mr Priest that what he (Mr Priest) had suggested would contravene CAR 210 because Oasis did not have a charter AOC. He said Mr Priest told him that this was not an issue because the application was on foot. That cannot be logically reconciled with the e-mail Mr Priest sent to Mr Konstandopoulos or the e-mail Mr Priest sent internally.
The e-mails I have referred to above from Mr Priest were put to Mr Konstandopoulos in the course of his examination in chief. When he was asked to describe discussions he had with Mr Priest at that time, Mr Konstandopoulos responded by saying that those discussions were about the AOC application for charter only, excluding flying training. When asked if he was clear about what Mr Priest's concerns were, he said he wasn't exactly clear about the name of the school and the charter, about which he remained confused, and that led to what was put on the website page. This appears to be in response to what Mr Priest said in an e-mail dated 30 April 2007 to Mr Konstandopoulos where he said he did not know whether CASA would have any issues with Oasis continuing to use the terms Flight Training in its name when it did not hold an AOC to conduct flight training. However, Mr Priest made it clear that he did not regard that as a regulatory issue but rather a misdescription which could be misleading to the public. Mr Konstandopoulos said that he had altered what was on the website in order to satisfy CASA.
Despite Mr Konstandopoulos having sworn that the evidence set out in his witness statement was true and correct at the time I admitted it into evidence, it is plain from the objective evidence that his statement is false. Mr Priest's e-mails make that abundantly clear. There is nothing in the e-mails from Mr Priest which would even suggest that he told Mr Konstandopoulos that it was acceptable to advertise that Oasis had a charter AOC when it did not. In fact, in the internal e-mail, he makes it clear that it is not acceptable. A CASA manager with the Enforcement Policy and Practice Branch wrote to Mr Konstandopoulos on 15 June 2007 regarding his application for an extension of time to pay the infringement fine and withdrawal of the infringement notice. After making enquiries of the Moorabbin Field Office and the CASA Inspector involved (Mr Priest), the officer said: I can find no evidence to support your claim that you were given instructions or advice to advertise commercial operations in breach of CAR 210 of the Civil Aviation Regulations 1988. A breach of CAR 210 is an offence of 'strict liability'.
Mr Konstandopoulos' oral evidence was unenlightening and appeared to be an attempt to justify the actions which he took. Mr Priest's e-mails make it abundantly clear what was required to ensure compliance with CAR 210. Mr Priest was not only concerned about the fact that the website stated that Oasis could provide charter aircraft under its AOC, which Oasis did not hold at that time, but that Mr Konstandopoulos continued to ignore this advice. While I accept that this may be due simply to an error on his part, it does not instil confidence in his sworn testimony. Furthermore, on its face, this evidence discloses that Mr Konstandopoulos, despite being warned about a probable breach of the CARs by a CASA officer on a number of occasions, failed to act upon that advice. That, understandably, was of some concern to CASA given that Mr Konstandopoulos had applied to become an AOC holder.
Mr Konstandopoulos again came to the attention of CASA in an adverse way in July 2007 and ongoing into early 2008 as result of complaints raised by members of the Royal Australian Air Force (RAAF) at Point Cook or, as it is now known, RAAF Base Williams. At that time, Oasis conducted its flying training operations from that airfield. The main complaint was that Mr Konstandopoulos was smoking cigarettes in prohibited areas. CAR 289 deals with fire hazards. It provides that a person must not smoke or do any act to procure a naked flame within 15 m of an aircraft or any part of an aerodrome in which a notice indicates that smoking is prohibited.
From the evidence before me, it appears the first such complaint was raised in a letter to Mr Konstandopoulos from Wing Commander Forster, the Base Commander of RAAF Williams. Wing Commander Forster said that on two occasions she had approached personnel standing in the immediate vicinity of his building and his aircraft and directed them to extinguish their cigarettes because they were in a no-smoking area. On one of those occasions, the person in question was standing within 1 m of the aircraft. On

6 March 2008 Wing Commander Sloane, Deputy Director Aviation Safety, sent an

e-mail to Mr McAlister of CASA setting out a series of complaints about the operations of Oasis and in particular Mr Konstandopoulos. He described Oasis as having been a safety concern to the RAAF for a period of over one year. He described

Mr Konstandopoulos as blatantly breaking rules by continuing to smoke while standing next to aircraft while they were being refuelled despite being notified of his breach. He was also described as having acted contemptibly towards RAAF personnel when confronted. It appears from an e-mail dated 12 March 2008 that Mr Konstandopoulos was banned from entering RAAF Base Williams.
CASA issued an infringement notice to Mr Konstandopoulos on 29 April 2008 stating that contrary to CAR 289(1) he smoked within 15 m of an aircraft. Mr Konstandopoulos engaged the services of lawyers, Lewenberg & Lewenberg, who wrote to CASA stating that Mr Konstandopoulos would rather have the matter heard by a court than pay the prescribed penalty. The prescribed penalty was $110. CASA then served on

Mr Konstandopoulos a Charge and Summons issued by the Magistrates' Court citing 12 charges relating to breaches of CAR 289(1).
The matter was heard by the Melbourne Magistrates' Court on 1-3 September 2009 and Mr Konstandopoulos was found to be guilty on 10 of the 12 charges. Although I did not have in evidence any documents from the Court, in an e-mail dated 10 September 2009 from a Mr Corr, to Mr Campbell, it was stated: His Honour said that it was "appalling" that they had been attacked (prosecution witnesses); unfavourable comments about the defendant – in any case where the evidence conflicted the Crown witnesses were accepted – and on sentence His Honour found that the defendant had shown absolutely no remorse and a contumacious disregard for safety or the law and his attitude had been that he could do as he liked. Mr Konstandopoulos was fined $3000.
In the course of his application for the AOC which is the subject of this proceeding,

Mr Campbell, an investigator with the Investigations Branch, Legal Services Division of CASA, provided a record held by that Branch with respect to Mr Konstandopoulos in an e-mail dated 7 February 2012. Mr Campbell said this about the proceeding in the Magistrates' Court:
The matter proceeded to the Melbourne Magistrates Court for a full contested hearing on the 1-3/9/2009. Mr Konstandopoulos was found guilty of 10 charges of smoking within 15 metres of an aircraft in breach of CAR 289. Mr Konstandopoulos gave evidence in the witness box on oath that he never smoked within 15 metres of an aircraft. The magistrate found Mr Konstandopoulos not to be a believable witness.
Mr Konstandopoulos appealed his conviction on the smoking charges to the Melbourne County Court. The Court handed down its decision on 16 September 2010 with the judge stating: I have little hesitation in finding each of the charges proven beyond reasonable doubt. His Honour also said:
I accept that the occasions outlined by Mr Le Paure that Mr Konstandopoulos was smoking within 15 metres of an aircraft, that is in relation to Charges 1, 2, 3, 4, 5, 6, 7, 8, 10 and 11. I am satisfied on the evidence of Messrs Appleby, Tan and Gunn and particularly Wing Commander Foster, that Mr Konstandopoulos was smoking within 15 metres of an aircraft on 3 March 2008, Charge 12. I accept Commander Foster's evidence as to the conversations and letters which were sent and I accept that Mr Konstandopoulos had admitted smoking within 15 metres of an aircraft during the meeting about which the evidence has been given.
On his own evidence, he was in an area which on any view is not inside the demountable building where Oasis conducted its business. Even his own witness, Gill, gave no evidence that he smoked there, that he only smoked inside. I do not accept his evidence is truthful in relation to the planes on the site.
…
I think this appeal has been a monumental waste of the court's time and witnesses time.

Mr Konstandopoulos was fined a total of $3000 as well as being ordered to pay costs of $3250.50.
In his witness statement Mr Konstandopoulos said he believed that the allegations regarding smoking too close to aircraft were made vexatiously by persons with whom he was in dispute over a lease at the RAAF Base Williams. He said he strongly disputed the allegations and sought legal advice. He accepted the Court found against him and he said that he had taken full responsibility for his actions. He also said he had given up smoking.
At the show cause conference which was held on 9 August 2012 he was asked about his smoking and whether he regretted what had happened. Mr Konstandopoulos said:
Well, certainly, I've given up smoking, and – so that's never going to happen again. I’m aware of the rules and regs. I follow the rules and regs. And I continue to do so, and I will continue to do so.
In an e-mail Mr Konstandopoulos sent to Mr Sheppard, who I assume is a CASA officer, he admitted that on 16 September 2010 he was convicted of 10 breaches of CAR 289(1) in the Melbourne County Court. He then said:
This was a contested matter by myself as it went from the Magistrates Court to the County Court. I have maintained my innocence throughout these proceedings and continue to do so.
When asked by Mr N Harrington of counsel, who appeared on behalf of CASA, whether he continued to maintain his innocence, Mr Konstandopoulos responded by saying that he accepted he was within 15 m of an aircraft, but that he was inside a building. With respect to Mr Konstandopoulos, the County Court judge found that even on Mr Konstandopoulos' own evidence, he was in an area which was not inside the demountable building where Oasis conducted its business. His response in cross-examination that he was inside a building was plainly incorrect and he must have been aware of that.
The only conclusion or inference which can reasonably be drawn from this is that despite having said something to the contrary previously, and despite findings in a court which has thoroughly examined the evidence before it, Mr Konstandopoulos is prepared to say anything to advance his cause regardless of the truth.
TRAINING FLIGHTS OUT OF RAAF BASE WILLIAMS
CASA claimed that Mr Konstandopoulos conducted training flights for flying instructors out of RAAF Base Williams allegedly under an AOC held by Bendigo Aviation Services (BAS). Those flights were said to have taken place between 2005 and 2008. CASA alleged that those flights were conducted contrary to s. 27(2) and 29(1)(b)(ii) of the CA Act.
In so far as it is relevant, s. 27(2) provides:
(2) Except as authorised by an AOC, by a New Zealand AOC with ANZA privileges that is in force for Australia (but only so far as it authorises ANZA activities in Australian territory), or by a permission under section 27A:
(a)…; and
(b)an aircraft shall not operate in Australian territory; and
(c)…
Section 29 deals with offences in relation to aircraft. In so far as it is relevant,

s. 29(1)(b)(ii) provides:
(1) The owner, operator, hirer (not being the Crown) or pilot of an aircraft commits an offence if he or she:
(a)…
(b)the operation of the aircraft results in:
(i) …
(ii) the aircraft being flown or operated in contravention of a provision of this Part (other than subsection 20A(1) or 23(1)), or of a direction given or condition imposed, under such a provision.
Included in the documents in evidence was a bundle of AOCs issued to BAS which were effective between November 2002 and October 2008. Those AOC's permitted BAS to conduct flying training at Bendigo, Echuca and Mildura. They did not permit flying training to take place at RAAF Base Williams which is at Point Cook.
The transcript of the show cause conference conducted on 9 August 2012 was in evidence and it discloses that Mr Konstandopoulos was asked whether he conducted any instructor training at Point Cook. Mr McGregor asked Mr Konstandopoulos whether BAS had Point Cook on its AOC and he responded:
At that stage, the training was not done for instructor training at Point Cook. It was done at Bendigo in the Bendigo training area, because they didn't have Point Cook in their – the Point Cook training area in their AOC. So the training would be conducted at Bendigo.
When asked to confirm that the instructor training was not conducted at Point Cook,

Mr Konstandopoulos responded: No. When asked whether he remembered the names of any of the students involved, he said: Jackie (sic) Hayes, I think rings a bell. When asked if there was anyone else, Mr Konstandopoulos said: Chris – there was a Chris, as well.
Mr Konstandopoulos was then taken to 2 entries in his log book, the first on 3 April and the second on 16 May. Mr McGregor pointed out to Mr Konstandopoulos that on 3 April his log book had entries for 1.5 hours with Ms Jacqui Hayes; then a one hour entry in the Jabiru which is a RA - Aus aircraft; and then a further 2.9 hours flight with Ms Hayes. When asked how long it took to fly from Point Cook to Bendigo Mr Konstandopoulos said just over an hour. Mr McGregor also took Mr Konstandopoulos to an entry on

16 May which also had entries in relation to flying the Jabiru which was based at Point Cook and a flight with Ms Hayes which he suggested took place in Bendigo. At the show cause conference, Mr McGregor said that he would need to look further into those flights.
Following the show cause conference, CASA conducted some enquiries with Ms Hayes and Mr Christos Kritsantonis, who was the second trainee instructor identified by

Mr Konstandopoulos. In response to questions asked by CASA regarding her instructor training in an e-mail dated 13 August 2012, Ms Hayes said:
1.I commenced my instructor training in March 2006 and achieved my Instructor Rating in May 2006
2.This training was done through Moorabbin Aviation Services
3.I flew out of Point Cook during my instructor training except for one flight from Bendigo with Chris Gobel on 12^th May, which was done from Bendigo, and the Instructor Rating test on 26^th May which was also done from Bendigo.
Mr Kritsantonis was also asked a number of questions regarding his flying instructor training. He said that he received his initial flight instructor training from

Mr Konstandopoulos. He agreed that the training took place in about 2005 and that the training took place from Point Cook. He did not recall doing any of his instructor training at Bendigo. He also said:
As far as I remember, all briefs were delivered at Point Cook and all flights originated from that same airfield.
I also had in evidence some handwritten notes dated 14 August 2012 which appeared to be a record made by a CASA officer in the course of an interview with somebody from BAS, probably Mr Gobel. The notes state:
Kris Konstandopoulos – conducted the majority of the IT training at PCK however some progress flights were conducted at Bendigo.
Chris Gobel visited PCK about a dozen times. (For other than IT tests)
KK was the only inst. providing instructor trng @ PCK for BAS.
The training records were not kept @ BAS.
Darren Hurley was not working for B.A.S.
Flights were signed out @ PCK. The sheets were never transferred to Bendigo.
BAS a/c were not used.
At the flight test KK presented the trng records to CG to look at.
CG flew with the IT trainees regularly.
CG was generally satisfied with Mr K.
There is no current arrangement with Mr K.
The investigation carried out by CASA officers following the first show cause conference was put to Mr Konstandopoulos in a supplementary notice of proposed action dated 11 September 2012 to refuse the issue of the AOC to Oasis. On 17 September 2012 Maitland Lawyers, on instructions from Mr Konstandopoulos, provided a response. In respect of this issue, Maitland Lawyers said:
We do not agree with the assertions in these paragraphs. It has been over 7 years since the events of which you asked our client to record during the "show cause" conference. Our client did the best he could with his recollection of these events, which were put to him without notice. We note that our clients did say that [he] recorded his flights on separate pieces of paper before transcribing them in his log book. It would appear that you are trawling for any faults.
In the course of cross-examination by Mr Harrington, Mr Konstandopoulos was asked whether he read the BAS AOC and he said he had not but he asked Mr Gobel about it. When Mr Harrington suggested to him that his log book entries were incorrect because he could not have, in the time stated, conducted training at point Cook and at Bendigo as he claimed, I understood him to agree. When he was taken to the e-mail from

Mr Kritsantonis and it was put to him that he got it wrong when he conducted instructor training at Point Cook because BAS was not authorised to conduct training at that airfield, Mr Konstandopoulos simply said he had not seen the AOC. He agreed he did not check if he could do the training but simply relied on Mr Gobel who he said he called and who approved it. When asked if he considered that was a serious breach of the AOC, he responded: I don't think so.
I find that the evidence regarding the flight instructor training conducted by

Mr Konstandopoulos at Point Cook establishes that Mr Konstandopoulos breached

s. 27(2) and s. 29(1)(b)(ii) of the CA Act. Although Mr Konstandopoulos did not consider that to be a serious breach, the penalty for an offence under s. 29 of the CA Act is imprisonment for two years. It is plainly a serious offence. Significantly, for the purposes of this application, it reflects badly on Mr Konstandopoulos' attitude towards regulatory compliance. That is particularly so given his initial denial that flight instructor training took place at Point Cook and in his subsequent explanation which strongly suggested it was Mr Gobel's responsibility as he approved it and authorised the training. I agree with CASA that Mr Konstandopoulos' handling of this matter suggests that CASA can have little confidence in him to ensure diligent compliance with the safety rules.
SOLO FLIGHT WITHOUT LICENCE
According to CASA, between 2010 and 2011 Mr Konstandopoulos provided flying training to a Mr Smith from premises operated by Oasis at Moorabbin airport. The training was conducted under AOCs held by Melbourne Flight Training (MFT) and Moorabbin Aviation Services (MAS). On 12 June 2010, 3 July 2010 and 12 July 2010 Mr Smith was permitted to fly solo despite the fact that he had not been issued with a student pilot licence at that time. Section 20AB of the CA Act provides:
20AB Flying aircraft without licence etc.
(1)A person must not perform any duty that is essential to the operation of an Australian aircraft during flight time unless:
(a)the person holds a civil aviation authorisation that is in force and authorises the person to perform that duty; or
(b)the person is authorised by or under the regulations to perform that duty without the civil aviation authorisation concerned.
Penalty: Imprisonment for 2 years.
The expression civil aviation authorisation is defined in s. 3 of the CA Act in the following way:
civil aviation authorisation means an authorisation under this Act or the regulations to undertake a particular activity (whether the authorisation is called an AOC, permission, authority, licence, certificate, rating or endorsement or is known by some other name).
Division 1 of Part 17 of the CAR deals with penal provisions in prosecutions. Relevantly, CAR 282 provides:
(1)A person shall not, if the person is not specially permitted by or under these regulations, perform any duty or exercise any function or do any act for which:
(a)a licence;
(b)a certificate; or
(c)a rating or other endorsement on a licence or certificate;
is required under these regulations, without holding:
(d)the appropriate licence or certificate; or
(e)a licence or certificate containing the appropriate rating or other endorsement.
Penalty: 50 penalty units.
In his witness statement Mr Konstandopoulos said that at the time that this incident took place, he was working as a flying instructor for MFT under the direction and supervision of the Chief Flying Instructor (CFI), Mr Glen Buckley. He said that Mr Smith held a valid medical certificate prior to him being allowed to fly solo and that he was informed by the CFI that Mr Smith's paperwork was in order and that he was okay to be sent solo. He said he relied on the advice of the CFI and did not personally check the paperwork. He maintained Mr Smith was capable of flying solo and posed no danger to air safety despite the fact that his paperwork was not in order. In his witness statement, he said he regretted his oversight and that he took full responsibility for his actions.
In the course of the show cause conference on 9 August 2012, Mr Maitland, who appeared on behalf of Mr Konstandopoulos, asked him to focus on the matters raised in the show cause notice and in particular about his attention to detail when signing up students or sending them solo. Mr Konstandopoulos responded:
Yes. Well, I am very dedicated to safety and standards. It's my major priority. In relation to the student going solo, I didn't see that particular file in the records, and I approached the CFI at that time, and they (sic) told me that, "yes, no, they've got it. It's fine. He's right to go solo." He had done all the training. He had done all the theory component. I was assured that it was safe to do so, and I believe the CFI. I don't have any reason to doubt their comments, so I complied.
At the show cause conference Mr McGregor asked Mr Konstandopoulos whose responsibly it was to check a pilot before going solo. He answered: Well, I accept responsibility for not having asked the CFI for me to sight it [the student pilot licence] and perhaps, "Would you allow me to put it in the records for you?" Mr McGregor then asked if he asked Mr Smith for his licence and Mr Konstandopoulos responded: [Mr Smith], yes he didn't have it. He said "I don't have it on me," I think. I think he is – from memory – this is all from memory.… I think from memory he had a copy. The original was with the CFI. I think that's what [Mr Smith] told me. But he didn't have the copy. I think he had a photocopy.… Of course, absolutely. See, what I was hoping was that I can get a photocopy for [Mr Smith], but he said he had a copy at home. He never had a copy at all.
Mr Smith attended the hearing and gave oral evidence. He also provided CASA with answers to questions in an e-mail dated 13 August 2012. Mr Smith explained that in 2010, he was in year 11 at school and was aged 17 years. The flying training was conducted as part of obtaining a certificate in vocational and educational training. In response to an e-mail question from CASA regarding whether he told

Mr Konstandopoulos that prior to going solo, he told him that he had left his student pilot licence at home, Mr Smith said he had no recollection of this due to the passage of time. He said the solo flights occurred on 12 and 13 June 2010. He was not told that when he commenced training at Oasis, he was doing that training under the AOC held by MFT. He recalled that he sat for his GFPT on 2 April 2011 and that part of this training was undertaken by MAS. Mr Smith said he had never met the CFI of MFT, Mr Glen Buckley. Nor had he ever met Mr Darren Hurley, the CFI of MAS.
In his examination in chief Mr Smith confirmed that the statements he made in the e-mail sent to CASA on 13 August 2012 were true and correct. He was asked whether he recalled Mr Konstandopoulos asking him about the whereabouts of his student pilot licence and he said he had no recollection of telling him that he had left it at home. He was adamant that he would not have told Mr Konstandopoulos a lie and he is certain that he did not. In cross-examination Mr Smith was asked when he realised he was required to produce a student pilot licence and he said it was some two or three weeks after sitting for the GFPT. In fact his application for a student pilot licence was signed by Mr Smith and dated 16 May 2011. The name of the flying school on that application is MAS.
On 15 August 2012 CASA wrote to Mr Buckley asking him some questions about

Mr Smith's student pilot licence and first solo flights. Mr Buckley agreed that he was the CFI of MFT when Mr Smith conducted his first solo flight on 12 June 2010. In that letter CASA said that Mr Konstandopoulos, who was then a Grade 1 instructor for MFT, claimed that he brought the absence of Mr Smith's student pilot's licence to his attention and he said words to the effect: I've got the SPL. It has been issued. Don't worry about it. In answer to the question as to whether he had a conversation with

Mr Konstandopoulos regarding the whereabouts of Mr Smith's student pilot licence,

Mr Buckley said:
I have no recollection of this conversation. Had that conversation occurred that would not be my response. There is (sic) no circumstances that I would hold a student's SPL.
In a further response to questions asked by CASA, Mr Buckley said that he was prepared to sign a statutory declaration that the conversation Mr Konstandopoulos said he had about Mr Smith's student pilot licence did not take place. In fact Mr Buckley made a statutory declaration on 15 August 2012 in which he said:
… I did not have a conversation with Kristos Konstandopoulos regarding me having the students Student Pilot Licence.
If that conversation had taken place that would not be my response.
I never met with the student [Smith] and therefore played no part in an application for a student pilot licence.
I did not take any action to indicate that [Smith] held a student pilot licence.
In his examination in chief Mr Buckley was taken to his statutory declaration and asked if he stood by it. Mr Buckley said: yes.
In cross-examination Mr Buckley was asked, when he said in response to the questions raised by CASA that he had no recollection of the conversation, whether he meant that he had no recollection of it having occurred, Mr Buckley answered: yes.
Nevertheless, regardless of whether Mr Buckley recalled a conversation

Mr Konstandopoulos said took place regarding Mr Smith's student pilot licence, the evidence is clear that at the time of his first solo flight, Mr Smith had not applied for a student pilot licence. In other words, there was no such document. Furthermore,

Mr Smith's evidence is consistent with Mr Buckley's statement that he had never met

Mr Smith. It follows, in my opinion, that it is highly unlikely that Mr Buckley had any knowledge whatsoever about Mr Smith's student pilot licence, or rather, the lack of it. Had he been aware of that situation, I have no doubt that he would have made some enquiries of Mr Smith and one or other of those persons would have recalled that conversation.
I also had in evidence a document, described as a Solo Authorisation sheet, from MFT which was signed by Mr Smith on 12 June 2010, immediately prior to Mr Smith undertaking his first solo flight. Mr Smith was taken to that document in cross-examination and he confirmed he had signed it. On that document, there is a question regarding whether particular documents had been reviewed before a flight. On the particular section in which that question appears, it is said to be completed by the Authorising Instructor. The Authorising Instructor's name on that document is K Konstandopoulos. Mr Konstandopoulos has circled the word yes against the label Licence and Medical indicating that he had reviewed both of those documents. Given that Mr Smith did not lodge an application for his student pilot licence until 18 May 2011, he did not at that time have a student pilot licence as is required by the CA Act. Furthermore, Mr Konstandopoulos could not possibly have reviewed the licence at the time he signed the MFT document. It did not exist.

Although Mr Konstandopoulos now says he takes full responsibility for his actions and that he has learnt a valuable lesson from this mistake which he would never repeat, of considerable concern to me for the purposes of this application is the fact that

Mr Konstandopoulos was prepared to implicate others in an attempt to justify his mistake. I find that Mr Buckley's evidence should be believed rather than the evidence given by Mr Konstandopoulos. That is because Mr Buckley's evidence is consistent with what Mr Smith said and recalled about the events regarding his first solo flight and subsequent solo flights at a time when he did not hold a student pilot licence. That evidence is further supported by the fact that Mr Konstandopoulos signed a document in which he claimed to have reviewed the student pilot licence prior to the flight taking place. Even if the conversation he said took place with Mr Buckley did occur, he falsely signed the MFT document knowing that he had not reviewed Mr Smith's student pilot licence prior to his first solo flight.
FALSE AND MISLEADING INFORMATION ON AOC APPLICATION
CASA contended that Mr Konstandopoulos provided false and misleading information in his application for the Oasis AOC in that he misstated his instructional experience training students for a flight instructor rating; and in response to a question which asked whether the applicant or the key personnel had ever been subjected to regulatory action by CASA or the aviation regulatory authority of a foreign country in the last 10 years which resulted in a fine, conviction, variation, suspension or cancellation of the civil aviation authorisation, licence or certificate.
On the Oasis AOC application form, Mr Konstandopoulos nominated himself as the Chief Flying Instructor. In stating his total aeronautical experience, he entered 500 hours as being his instructional experience training students for a flight instructor rating. CASA asked Mr Konstandopoulos to substantiate those hours and, attached to an e-mail sent on 4 April 2012, Mr Konstandopoulos provided what is described as a logbook summary which indicates that his instructional experience training students for a flight instructor rating amounted to 327.1 hours.
Maitland Lawyers, on the behalf of Mr Konstandopoulos, responded to the show cause notice in a letter dated 13 July 2012. Presumably on Mr Konstandopoulos’ instructions, his lawyers said that the error was discovered by Mr Konstandopoulos later in the application process when he was checking through his records. His lawyers also said that upon discovering the error, Mr Konstandopoulos notified FOI Naomichi Nishizawa who told him that he did not have to correct the application form but he simply needed to provide FOI Nishizawa with a photocopy of his pilot logbook, which he promptly did. His lawyers then said that Mr Konstandopoulos subsequently advised FOI Nishizawa that Oasis would not pursue the instructor training section in the AOC application at that time.
In his evidence in chief Mr Konstandopoulos explained the cause of the incorrect statement of hours flown in instructing students for a flight instructor rating as being due to an input error in the program he used at home to enter his flying hours. He said that error in the program was rectified and he informed FOI Nishizawa of the error. He also said that he had decided by then not to pursue flying instructor training which he said could be added at a later time. At the show cause conference, Mr Konstandopoulos gave this explanation:
First of all, that's – I had a spreadsheet, and that's what I misread on the spreadsheet. Well, the spreadsheet was wrong, actually. One of the formulas had gone – in the spreadsheet – in the Excel spreadsheet had gone wrong. So, anyway, when I filled out the form, that's what I did. But then subsequently checking through my log book, I found that that's not correct, so I notified me Michi, Naomichi Nishizawa, and indicated to him, "Sorry, Michi, its 327.1.
Mr Konstandopoulos also maintained that it was he who discovered the error and brought it immediately to the attention of FOI Nishizawa.
When it was put to Mr Konstandopoulos in cross-examination that the spreadsheet was not the problem, he responded by saying that FOI Nishizawa had the spreadsheet, that he had e-mailed it to him.
With respect to Mr Konstandopoulos, there are a number of problems with his explanation regarding the error in the flying hours experience he claimed to have an recorded on his AOC application. The first and somewhat obvious inconsistency regarding the use of a computer program and spreadsheet to maintain flying hours is that all of the hours required to be notified on the AOC application, some eight in total, were given in round figures. Not one of them is a precise recording of the hours. In other words, it is patently obvious that on the application form, Mr Konstandopoulos has simply estimated or rounded up the figure to suit his application.
The second obvious inconsistency between Mr Konstandopoulos' evidence and the objective documentary evidence is that the so-called spreadsheet Mr Konstandopoulos said he sent by e-mail to FOI Nishizawa does not appear to be an Excel spreadsheet. Rather, it looks like an extract or an incomplete spreadsheet. In fact the document attached to the email to FOI Nishizawa was in PDF format which means the original document may or may not have been an Excel document. It is a document with two columns, one for multi-engine CPL operations and the other, single-engine CPL operations. Furthermore, every entry appears to be a precise number of hours, for example, 1076.7 multi-engine command day flying hours. The entries in the AOC application were clearly not taken from this summary. Furthermore, although

Mr Konstandopoulos said that he volunteered the information without being requested, in the covering letter to which he attached his logbook summary he said: I have attached the Logbook Summary as requested.
While the misstatement of his flying hours may appear to be a relatively minor indiscretion, the problem that I have is that his explanation for the error is clearly an attempt to avoid his error being described as misleading. It does not instil confidence that Mr Konstandopoulos is capable of being truthful under testing circumstances.
The second matter which CASA claimed was misleading on Oasis’ AOC application was the answer given by Mr Konstandopoulos regarding criminal and regulatory action. This is dealt with under part A3 of the application form and it bears the heading: Criminal and Regulatory Action. It seems reasonably clear that the questions under this heading deal with two distinct issues, criminal prosecutions which have nothing to do with CASA and regulatory action taken by CASA.
The first question posed is whether the applicant or any of the applicant's key personnel have been charged with or convicted of any criminal offence in Australia, its territories, or a foreign country in the last 10 years. Mr Konstandopoulos marked the No box.
The second question posed under this heading is whether the applicant or any of the key personnel had ever been subject to regulatory action by CASA or the aviation regulatory authority of a foreign country in the last 10 years that resulted in a fine, conviction, variation, suspension or cancellation of the civil aviation authorisation, licence or certificate.
While the two questions may appear to overlap to a certain degree, careful consideration of the words used indicates that they do not. The first question does not refer to any action taken by CASA which results in a person being charged or convicted of a criminal offence. It is plainly a question unrelated to aviation but it may go to the question of the character of the person concerned. On the other hand, the second question deals with regulatory action taken by CASA and its consequences. Therefore, Mr Konstandopoulos' indication that he had not been charged with or convicted of any criminal offence unrelated to actions taken by CASA was plainly correct, assuming of course that he had no other convictions.
In answer to the second question, Mr Konstandopoulos ticked the Yes box and in the details section referred to smoking near aircraft and a fine of $6200. He also noted that the conviction was recorded. This was also correct. However, as CASA pointed out,

Mr Konstandopoulos failed to record the Infringement Notice (07 – 0051) issued on

29 May 2007. There was no dispute about the fact that Mr Konstandopoulos paid the fine in this case rather than have the matter heard by a court. Clearly, it should also have been recorded on the AOC application lodged on behalf of Oasis.
In response to the show cause notice, Maitland Lawyers said that on their instructions, Mr Konstandopoulos simply forgot to include this very minor matter when completing the form. They went on to cite CAR 296F which provides that where an infringement notice is served on a person and the person pays the prescribed penalty within 28 days after the date of service of the notice, then any liability in respect of the offence specified in the notice is taken to be discharged; further proceedings cannot be taken against a person for the offence; and the person is not regarded as having been convicted of the offence. Mr Maitland then submitted that the question itself suggests the information which required declaration was one which would be of a material particular. He suggested that it would be such a matter which resulted in prosecution and/or action against a certificate. With respect to Mr Maitland, that is reading words into the question which are simply not there. Regardless of the infringement involved, where an infringement notice is issued by CASA and the person to whom that notice is issued pays a fine, that fact must be disclosed on an AOC application.
In the show cause conference, when Mr Konstandopoulos was asked about this matter, he said he had forgotten all about it. In a leading question put to him by Mr Maitland regarding whether he understood that he only had to record convictions rather than a finding of guilt or administrative fine, Mr Konstandopoulos said that was correct. That answer is quite plainly incorrect and may have been induced by the leading question. Regardless, once again, it seems that Mr Konstandopoulos was intent on avoiding bearing responsibility for his own actions.
I find that Mr Konstandopoulos' responses to questions regarding the hours he had flown training students for a flight instructor rating and regulatory action taken by CASA following the issue of an infringement notice to have been misleading. That is a serious matter because, as CASA said in its show cause notice, it discloses an inappropriate attitude to compliance with regulatory obligations and a lack of essential honesty and integrity in dealings with CASA. Furthermore, it is a breach of s. 136.1(1) of the Criminal Code Act1995 which provides:
(1)A person is guilty of an offence if:
(a)the person makes a statement (whether orally, in a document or in any other way); and
(b)the person does so knowing that the statement:
(i)      is false or misleading; or
(ii)     omits any matter or thing without which the statement is misleading; and
(c)the statement is made in, or in connection with:
(i)      an application for a licence, permit or authority; or
(ii)     …
(iii)    …
(d)any of the following subparagraphs applies:
(i)      the statement is made to a Commonwealth entity;
(ii)     …
(iii)    …
Penalty: Imprisonment for 12 months.
Although Mr Maitland referred to ss 9.1 and 9.2 of the Criminal Code Act 1995 which absolve a person from criminal responsibility for an offence for which there is a fault element and a no fault element, those sections only apply where the person is under a mistaken belief about, or is ignorant of facts, and the existence of that mistaken belief or ignorance negates any fault element applying to the physical element. It cannot be said in this case that Mr Konstandopoulos held the mistaken belief or was ignorant regarding the hours of experience he in fact had; or that he was required to pay a fine following the issue of an Infringement Notice.
2012 INFRINGEMENT NOTICE
On 17 May 2012 CASA issued Mr Konstandopoulos with an Infringement Notice (12-0083) claiming that he had again breached CAR 210(1) by displaying on public signage boards that Oasis Flight Training was willing to undertake, by use of Australian aircraft, a commercial operation without holding an AOC authorising the operation.
The signage which was the subject of the complaint had the word Oasis in large letters under which was an eagle. Directly under that logo were the words: FLIGHT TRAINING. Beside the Oasis name were the words: BEGINNER TO AIRLINE PILOT. Directly beneath that in smaller letters in sequence were the statements: All Theory Courses; Registered Training Organisation; and Cert IV In Aviation.
In a letter dated 24 May 2012 Mr Konstandopoulos requested that CASA review the infringement notice and withdraw it. Mr Konstandopoulos said:
Oasis Flight Training was established in 2003 as a Flight Training organisation with the Australian Ultralight Federation, now known as Recreational Aviation Australia. I have supplied you with a copy of the Oasis Flight Training approval as a Flight Training Facility including my approval as the Chief Flying Instructor, Pilot Examiner and the Company registration.
I should point out that aircraft which are registered with RA - Aus are exempt from a number of the provisions of the CAR including CAR 210. CAO 95.55 subsection 3 deals with exemptions under CAR 308. In essence, CAR 308, prior to its repeal in 2011, provided that CASA may, in relation to a category of aircraft, exempt that category from compliance with specified provisions of CAR. Despite the repeal of CAR 308, an exemption from compliance with a provision of the CAR which was in force under that regulation immediately before 27 June 2011 continues in force after that date according to its terms (Civil Aviation Safety Regulations 1998, Transitional provisions for Part 11, Subpart 202.011(1) and (2)). CAO 95.55 paragraph 3.1 provides:
If the conditions set out in this Order are complied with, in relation to an aeroplane to which this Order applies, the aeroplane is exempt from compliance with the following provisions of the CAR 1988:
(a)Parts 4A, 4B, 4C, 4D, and 5;
…
(f)Regulation 210 as far as advertising of flying training to qualify for a pilot standard specified in the RAA Operations Manual is concerned;…
Part 5 of the CAR deals with the qualifications of flight crew. CAR 5.20 deals with approval to give flight crew training.
The pilot standard referred to in CAO 95.55 is a reference to a pilot certificate, which is not to be confused with a pilot licence. Section 20AB of the CA Act provides that a person must not perform any duty essential to the operation of an Australian aircraft during flight time unless the person holds a civil aviation authorisation which is in force and authorises the person to perform that duty. A civil aviation authorisation includes a pilot licence. However, in respect of aircraft registered with RA - Aus, CAO 95.55 subparagraph 5.1 provides:
For section 20AB of the Act, a person is authorised to perform a duty essential to the operation of an aeroplane to which this Order applies without holding a flight crew licence if he or she complies with the conditions set out in subsections 6 and 7.
Paragraph 6 of CAO 95.55, insofar as it is relevant, provides:
The exemptions given by subsection 3 in relation to an aeroplane, to which this Order applies, are subject to the following general conditions:
…
(b)the aeroplane must not be operated by a person as a pilot in command unless the person holds a valid pilot certificate and, subject to the other conditions set out in this Order, operates the aeroplane in accordance with the privileges and limitations of that certificate;
(c) subject to paragraph 6.2, if the aeroplane is being used for flying training, the person conducting the training must hold a valid flight instructor certificate;…
Oasis holds an approval from Australian Ultralight Federation which states: Certificate of Approval of an Ultralight Flight Training Facility. Therefore, subject to meeting the requirements set out in CAO 95.55, Oasis was permitted to conduct flying training in RA - Aus registered aircraft to enable a person to obtain a Pilot Certificate, assuming Mr Konstandopoulos held a valid Flight Instructor Certificate. Furthermore, it was entitled to advertise that it conducted flying training to qualify applicants for a Pilot Certificate. It was not permitted to provide flying training to persons seeking to obtain a private pilot licence; a commercial pilot licence; or an air transport pilot licence. Furthermore, unless it held an AOC authorising it to do so, it was not permitted to advertise that it was willing to undertake by use of an Australian aircraft any commercial operations. CAR 206 sets out what are commercial purposes for the purpose of s. 27(9) the CA Act. CAR 206(1)(a)(vi) refers to flying training.
With respect to Mr Konstandopoulos, a sign which refers to flight training – Beginner to Airline Pilot misstates the capacity of Oasis to conduct the flight training it claimed. It could not lawfully provide flying training to the standard described unless it held an AOC permitting it to conduct flying training. It did not hold an AOC at the time when the offending sign was observed by CASA. It was plainly in breach of CAR 210.
In the response to the show cause notice Mr Maitland maintained that Oasis was entitled to conduct flying training under its RA - Aus certificate of approval and that it could conduct all theory courses from beginner to airline pilot. However, and with respect to Mr Maitland, the expression, beginner to airline pilot, is not necessarily solely a reference to the words all theory courses. In fact, in the course of the show cause conference, in a leading question from Mr Maitland when asked about what was meant by the sign, he said: That sign there simply means, for me, that we cover all the theory courses from beginner to airline pilot. That is plainly not what the sign says. When

Mr Maitland put to Mr Konstandopoulos what he would say if the person said that flight training and beginner to airline pilot was misleading if one looked only at those words, Mr Konstandopoulos said that was not the intention of the sign. He said the sign was for all theory courses.
However, I also had in evidence an Internet advertisement for Oasis in which it was said, under the heading Fact Sheet: Oasis Flight Training caters for flight training needs from beginner to airline pilot standard,…. In fact on another website for Moorabbin Airport under the heading Airport Based Companies is an entry for Oasis which states: A registered training organisation offering flight training from beginner to airline pilot. I find that Mr Konstandopoulos' attempts to rationalise what is on his sign, knowing full well what he intended to convey to the reader, were disingenuous. The offending sign is clearly designed to mislead a reader into believing that Oasis can provide flying training to the beginner and through to an airline transport licence. Oasis cannot lawfully do that.
Despite a considerable volume of correspondence between CASA and

Mr Konstandopoulos regarding the signage which CASA claims offended CAR 210, I also had in evidence a copy of an advertisement lodged by Oasis Flight Training in the magazine Sport Pilot, August 2012 edition. It sets out the following:
Recreational and GA Training
Theory Courses for Recreational Pilots and GA Pilots
The theory courses cover all theory from BAK to IREX and a ATPL
We cater for all your needs ranging from the Recreational Pilot Licence to the Professional Pilot Licence. We also cover aerobatics training and endorsements. Our range of aircraft includes Jabiru, PA28, PA28R, and multi engine aircraft for advanced training. We also offer a certificate IV in aviation.

As I understood Mr Konstandopoulos, he believed this advertisement did not offend CAR 210 because Oasis could cater for courses leading to the issue of a professional pilot licence. That was because he did General Aviation (GA) training under the MAS AOC. With respect to Mr Konstandopoulos, that cannot be correct. If he were to do GA training it would not be in his capacity as an instructor with Oasis, but rather as an instructor engaged by MAS. An uninformed person reading that advertisement would most likely understand that Oasis could provide flying training up to a professional pilot licence. In fact, use of the expression Recreational Pilot Licence is also incorrect and misleading. It conflates the Recreational Pilot Certificate with GA licences. While Oasis could provide flying training leading to the issue of a pilot certificate, it could not provide flying training in GA aircraft.
It appears there is a further problem with what Mr Konstandopoulos said about conducting GA flying training under the MAS AOC. I had in evidence an undated statement made by Ms Susan Matthews, who was the CFI employed by MAS between
31 May 2011 and 19 May 2013. While I will deal in more detail with his conduct while engaged by MAS in GA flying training operations presently, suffice to say for the present that Ms Matthews testified she formally suspended Mr Konstandopoulos from conducting flying training operations with MAS on 28 June 2012. After giving
Mr Konstandopoulos the opportunity to explain his reasons for failing to comply with her directions regarding briefing, debriefing and signing authorisations for flying,
Ms Matthews terminated MAS's authority permitting Mr Konstandopoulos to conduct flight training on 20 July 2012. When this was put to Mr Konstandopoulos in cross-examination and he was asked why he was asked to leave MAS, he responded by saying that flight and duty times were incorrect and that apparently created problem. With respect to Mr Konstandopoulos, that was only part of the reason why he was asked to leave MAS.
Therefore, at the time CASA recognised there were issues with Oasis' advertising of the availability of flying training, he was certainly not permitted to conduct that GA flying training. Because the show cause conference took place on 9 August 2012, any responses he gave to questions about flying training in GA aircraft must necessarily have been a reference to some other qualified pilot engaged by MAS, even though during that conference Mr Konstandopoulos constantly referred to we. It is unclear whether that is a reference to Oasis as a training organisation or if Mr Konstandopoulos was referring to himself and some other pilot.
In a letter dated 14 June 2012 attached to her witness statement, Ms Matthews referred to Mr Konstandopoulos and a Mr Scott Kandillotis. The complaint in that letter was about flight training operations conducted by Mr Konstandopoulos and Mr Kandillotis contra to her directions. In fact it warned both men that if the situation continued she would suspend all of their flight training operations conducted under MAS's AOC.
In her examination in chief Ms Matthews was asked what the association was between Oasis and MAS after 20 July 2012. She explained that Mr Konstandopoulos was engaged as an individual and that it was not under an agreement between MAS and Oasis. Following her letter of 20 July 2012 to Mr Konstandopoulos, the only remaining connection with Oasis was the engagement of Mr Kandillotis. That association ceased in about April 2013.
In the course of the show cause conference on 9 August 2012 Mr Konstandopoulos was asked what he would tell a person who came to Oasis stating that they wanted to be a commercial pilot and to fly GA aircraft. Mr Konstandopoulos said:
Yes, they can fly GA aircraft. We are – they are clearly briefed on the fact that we are an RAA school. We operate GA under MAS, so they can do their GA component under Moorabbin Aviation Services, and their RAA component under Oasis Flight Training.…
All their log books and records are with the GA side with MAS. All the log books and records with the RA - Aus with Oasis Flight Training.
The problem with Mr Konstandopoulos' response to the question raised above is that there was evidence to the contrary. In an e-mail to a CASA officer Mr Smith, in answer to a question whether he was aware he was being trained under the MAS AOC when he commenced his training at Oasis, said: No. Mr Smith was taken to this e-mail in the course of this examination in chief and asked whether its contents were true and correct to which he responded: Yes. He also agreed that the responses he gave to the questions asked of him were accurate. Given that Mr Smith has nothing to gain or lose from answering the question in either the positive or the negative; I prefer his evidence to that of Mr Konstandopoulos. I also had in evidence a statement made by Mr Darren Williams on 22 August 2012. Mr Williams was the CFI of MAS at the time Mr Smith transferred from MFT to MAS in early 2011. Mr Williams said that at that time, Mr Smith was in the final stages of his GFPT training and:
As part of my CFI duties I received from Mr Konstandopoulos [Mr Smith's] GFP application and associated training records.
As innocuous as this may seem, the question which does arise is what

Mr Konstandopoulos was doing with Mr Smith's flying training records? Attached to

Ms Matthews' witness statement is a document described as a Staff Internal Memo. The first paragraph of that memo is a reminder to all GA flight instructors that MAS only operates out of three locations. They are described as: 21 First Avenue; 125 Second Avenue; and Point Cook which currently only Ms Matthews and a person identified as Rowan can operate from. Oasis operates from 32 Second Street Moorabbin. The memo then states:
No records are to be removed from the above locations and shall be available for me to inspect at ALL TIMES!
In fact the MAS Operations Manual, which was approved by CASA on the grant of its AOC, expressly provides for the maintenance of student records at E 2.1. It provides: Records for individual student pilots are to be maintained by the flying school as follows: …
The complaint Ms Matthews raised in her 14 June 2012 letter to Mr Konstandopoulos and Mr Kandillotis stated:
I wish to advise that the following has been brought to my attention, that flight training operations conducted by yourselves have not been conducted solely out of the facilities of Moorabbin Aviation Services. Therefore you are both failing to comply with my previous directions with regards to briefing, debriefing and signing (for flight authorization (sic)) of your GFPT, PPL & CPL students.
In her witness statement Ms Matthews set out in considerable detail why she formed the view that Mr Konstandopoulos was conducting GA training operations from the Oasis premises. It was based on her observations having seen Mr Konstandopoulos sign up for a flight with the student which in fact occurred after the flight had taken place. She then began to time stamp Mr Konstandopoulos' flight authorisation sheets and that enabled her to determine, positively, that Mr Konstandopoulos had signed the flight authorisation after the flight had in fact taken place. An example of these flight authorisation sheets was attached to Ms Matthews' witness statement and they clearly demonstrate entries made after the dates on which those flights took place. Ms Matthews also asked the control tower at Moorabbin to provide landing times for the aircraft bearing registration VH-MGV, which was the aircraft used by Mr Konstandopoulos. The times recorded by the control tower on 26 June 2012 disclosed three landings at times prior to the date stamp on the authorisation sheet and when no such flights were recorded. That evidence disclosed that on 26 and 27 June 2012, Mr Konstandopoulos conducted four flights without authorisation prior to the flight. Ms Matthews terminated Mr Konstandopoulos' authority to conduct training flights under the MAS AOC on 20 July 2012 because he failed to meet the company standards expected of any instructor, let alone a Grade 1 Instructor, who she considered should be providing leadership within the industry.
In cross-examination Mr Konstandopoulos was asked whether it mattered that flights were not signed out as authorised before the flight took place. Mr Konstandopoulos did not regard that as a major error but rather merely an administrative error. He said: it doesn't really matter.
In her witness statement Ms Matthews also said that because of the concerns she had about flight authorisations, she spoke with other members of MAS staff and asked whether they had seen Mr Konstandopoulos brief, debrief, sign out or sign in the students. She was told they had not.
In my opinion, the objective evidence points to the fact that Mr Konstandopoulos, while authorised to operate under the MAS AOC, did not do so in accordance with directions given by the CFI, Ms Matthews, or at the locations where MAS was authorised to conduct its operations. In fact, Mr Konstandopoulos conducted those GA training operations as if Oasis was the AOC holder. That is undoubtedly why Mr Smith was not aware that his training was conducted under the MFT and MAS AOCs.
This behaviour of Mr Konstandopoulos is also consistent with the advertising conducted by Oasis. That advertising was, in my opinion, clearly misleading. The misleading advertising was perpetuated by the way in which Mr Konstandopoulos operated under the MAS AOC. Also, Mr Konstandopoulos' responses to questions in cross-examination regarding the matter do not give me any confidence that he is a person who strictly complies with all aviation regulatory requirements. In fact, the evidence discloses that he does not and that he is prepared to rationalise his failure to do so. As for the misleading advertising, I have no doubt whatsoever that Mr Konstandopoulos understands why the signage about which CASA has complained offends CAR 210. He chooses not to distinguish between Oasis as a flying training organisation and himself as an individual operating under another organisation's AOC.
STANDARD OF PROOF
On 19 June 2013, a week after the close of hearing this matter, Maitland Lawyers lodged with the Tribunal written submissions regarding the standard of proof and in particular what Mr Maitland referred to as the Briginshaw standard. This issue arose during the course of the hearing and I invited the applicant's legal advisers to provide me with written submissions regarding the application of the High Court of Australia decision in Briginshaw v Briginshaw (1938) 60 CLR 336. That was because there has been some controversy about its application, particularly in aviation matters. In the course of the hearing I pointed out to the parties that in the unreported decision Civil Aviation Safety Authority v Boatman [2006] FCA 460, Madgwick J held that the evidentiary principles stated in Briginshaw were inapplicable.
The first thing which needs to be said is that Deputy President SA Forgie in Phillips and Inspector-General in Bankruptcy [2012] AATA 788 has dealt comprehensively with the principles involved at [226 – 264]. Respectfully, I agree with the Deputy President's analysis. I do not intend to repeat all that she said although I do find it necessary to add some thoughts of my own and in particular to address the submissions made by

Mr Maitland.
The often quoted passage from Briginshaw comes from Dixon J where he said, at 362:
The seriousness of an allegation made, the inherent likelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters "reasonable satisfaction" should not be produced by inexact proofs, indefinite testimony, or indirect inferences.
It seems to me that the problem with the many cases which have cited the above passage is that they have not taken into consideration the context in which the statement was made by Dixon J. Briginshaw's case was brought by the Petitioner seeking the dissolution of his marriage. He claimed that his wife, the Respondent, had committed adultery with the Co-Respondent. The judge at first instance (Martin J) applied the criminal standard of proof to the case, that is, satisfaction beyond reasonable doubt. On appeal to the High Court of Australia, the Appellant argued that the incorrect standard of proof had been applied by the judge at first instance and that he should have determined the matter on the civil standard, that is, on the balance of probabilities. The evidentiary problem which confronted the appellant arose out of what was said in s. 80 of the Marriage Act 1928 (Vict.). That section provided:
Upon any petition for dissolution of marriage, it shall be the duty of the court to satisfy itself, so far as it reasonably can, as to the facts alleged and also to inquire into any countercharge which may be made against the petitioner.
The expression used in s. 80, to satisfy itself, so far as it reasonably can, was explained by Latham CJ who said, at 346 – 347:
But the actual phrase is not merely "satisfy itself" but "satisfy itself, so far as it reasonably can." The addition of the words "so far as it reasonably can" strongly supports the view that the legislature did not intend the court to reach that degree of moral certainty which is required in the proof of a criminal charge. The words are apt and suitable for applying in the new jurisdiction the civil standard of proof, but they are not apt words of description for the criminal standard of proof.…
The result is that the ordinary standard of proof in civil matters must be applied to the proof of adultery in divorce proceedings, subject only to the rule of prudence that any tribunal should act with much care and caution before finding that a serious allegation such as that of adultery is established.
Starke J described the problem this way, at 352:
Even on the argument addressed to us the matter is one of degree: it depends upon "the strength of conviction that must be produced in the mind of the tribunal." Sir James FitzJames Stephen, referring to the rule that a criminal offence must be proved beyond all reasonable doubt, observes: – "The word 'reasonable' is indefinite, but a rule is not worthless because it is vague. Its real meaning, and I think its practical operation, is that it is an emphatic caution against haste in coming to a conclusion adverse to the prisoner"… "Civil cases may be proved by a preponderance of evidence; criminal charges must be proved beyond reasonable doubt."… The difference in measure has never been defined…
His Honour then explained the problem inherent in matters dealing with matrimonial causes. He continued:
Matrimonial causes are in their nature civil proceedings, but the method in which judges have from time to time dealt practically with the proof of adultery and other charges in matrimonial cases is instructive. In Loveden v Loveden (3) Sir William Scott said: – "In every case almost the fact [of adultery] is inferred from circumstances that lead to it by fair inference as a necessary conclusion." "The only general rule that can be laid down upon the subject is that the circumstances must be such as would lead the guarded discretion of a reasonable and just man to the conclusion."
His Honour concluded, at 354:
Both the respondent and the co-respondent denied adultery on oath, and all that the petitioner relied upon was the evidence of paid agents of statements made by the respondents which were wholly denied by them in all essential matters. Such evidence does not necessarily lead the "guarded discretion of a reasonable and just man to the conclusion" that the adultery charged in this case is proved.
Briginshaw's case was essentially about how the court was to reach the requisite level of satisfaction when it had no direct evidence before it of the claimed adultery. It could only do so by drawing inferences from the evidence. Latham CJ said at 342:
In Allen v. Allen (2) the Court of Appeal approved the words of Sir William Scott in Loveden v. Loveden (3): "In every case almost the fact" (of adultery) "is inferred from circumstances that lead to it by fair inference as a necessary conclusion." The judgement of the Court of Appeal proceeds: – "to lay down any general rule, to attempt to define what circumstances would be sufficient and what insufficient upon which to infer the fact of adultery, is impossible. Each case must depend on its own circumstances.… A jury in a case like the present ought to exercise their judgement with caution, applying their knowledge of the world and of human nature to all the circumstances relied on in proof of adultery, and then determine whether those circumstances are capable of any other reasonable solution other than that of the guilt of the party sought to be implicated" (4).
Latham CJ was critical of the above description and described it as not being very informative. He then said, at 343 – 344:
There is no mathematical scale according to which degrees of certainty of intellectual conviction can be computed or valued. But there are differences in degree of certainty, which are real, and which can be intelligently stated, although it is impossible to draw precise lines as upon a diagram, and to assign each case to a particular subdivision of certainty. No court should act on mere suspicion, surmise or guesswork in any case. In a civil case, fair inference may justify a finding upon the preponderance of probability. The standard of proof required by a cautious and responsible tribunal will naturally vary in accordance with the seriousness or importance of the issue…
Rich J referred to the phrase satisfy itself, so far as it reasonably can, and said that it obviously reflected the influence of the common expression reasonable satisfaction. His Honour then said, at 350:
In a serious matter like a charge of adultery the satisfaction of a just and prudent mind cannot be produced by slender and exiguous proofs or circumstances pointing with a wavering finger to an affirmative conclusion. The nature of the allegation requires as a matter of common sense and worldly wisdom the careful weighing of testimony, the close examination of facts proved as the basis of inference and a comfortable satisfaction that the tribunal has reached both a correct and just conclusion.
This leads me to what Dixon J said in Briginshaw. At the outset, his Honour referred to the basis of the appeal before him in this way, at 355:
The husband's appeal is based upon the contentions that the learned judge set too high a standard of proof or persuasion and that, in any case, the inference of adultery ought to be drawn from the evidence.
Although Mr Maitland referred to the Briginshaw standard of proof, with respect, there is no such third standard known in law. Dixon J put that beyond doubt where he said, at 361 – 362:
The truth is that, when the law requires the proof of any fact, the tribunal must feel an actual persuasion of its occurrence or existence before it can be found. It cannot be found as a result of mere mechanical comparison of probabilities independently of any belief in its reality. No doubt an opinion that the state of facts exist may be held according to indefinite gradations of certainty; and this has led to attempts to define exactly the certainty required by the law for various purposes. Fortunately, however, at common law no third standard of persuasion was definitely developed. Except upon criminal issues to be proved by the prosecution, it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal.
If that were not sufficient, the High Court of Australia (Mason CJ, Brennan, Deane and Gaudron JJ) in Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 110 ALR 449 made that abundantly clear. Their Honours explained, at 449 – 450:
The ordinary standard of proof required of a party who bears the onus in civil litigation in this country is proof on the balance of probabilities. That remains so even where the matter to be proved involves criminal conduct or fraud. On the other hand, the strength of the evidence necessary to establish a fact or facts on the balance of probabilities may vary according to the nature of what it is sought to prove. Thus, authoritative statements have often been made to the effect that clear or cogent or strict proof is necessary "where so serious a matter as fraud is to be found". Statements to that effect should not, however, be understood as directed to the standard of proof.
And further, at 451:
When an issue falls for determination on the balance of probabilities and the determination depends on a choice between competing and mutually inconsistent allegations of fraudulent conduct, generalisations about the need for clear and cogent proof are likely to be at best unhelpful and at worst misleading. If such generalisations were to affect the proof required of the party bearing the onus of proving the issue, the issue would be determinative not on the balance of probabilities but by an unbalanced standard. The most that can validly be said in such a case is that the trial judge should be conscious of the gravity of the allegations made on both sides when reaching his or her conclusion. Ultimately, however, it remains incumbent upon the trial judge to determine the issue by reference to the balance of probabilities.

In my respectful opinion, Briginshaw does not establish a different or higher standard of proof in cases where it is said the allegations or the consequences of a finding may result in serious consequences for the person concerned. Briginshaw's case was about whether inferences should be drawn from inconclusive evidence in the particular circumstances of that case. The courts have frequently cautioned about distinguishing inferences from supposition or conjecture. A good example of this may be found in the reasons of Menzies J in Jones v Dunkel (1959) 101 CLR 298 where his Honour said, at 309 – 310:
As has been said, "Inferences from actual facts that are proved are just as much part of the evidence as those facts themselves. In a civil cause 'you need only circumstances raising a more probable inference in favour of what is alleged… where direct proof is not available it is enough if the circumstances appearing in the evidence give rise to a reasonable and definite inference; they must do more than give rise to conflicting inference’s of equal degree of probability so that the choice between them is mere matter of conjecture: see per Lord Robson, Richard Evans & Co. Ltd. v. Astley (1).… By more probable is meant no more than that upon a balance of probabilities such an inference might reasonably be considered to have some greater degree of likelihood'.
A more recent example of the Court dealing with inferential evidence may be found in the Full Court of the Federal Court (Greenwood, Tracey and Buchanan JJ) case, Tisdall v Webber (2011) 193 FCR 260 where his Honour, Buchanan J said at 297:
It is important to bear in mind also that the inferential process is not one where speculation, guesswork or mere assumption is accommodated. So far as the work of courts is concerned, where the application of a judicial method is expected, the process of drawing an inference from available facts is not to be equated with conjecture, surmise or guesswork. The arbitrary selection of one possibility over others from an available number of possibilities by such a method is not merely lacking in logic; it fails to conform to the necessity that inferences be drawn as matters of legitimate deduction, based on probative values.
In Bell IXL Investments Ltd v Life Therapeutics Ltd (2008) 68 ACSR 154 Middleton J said (at [14]):
In considering the material before the Court, the trier of fact must be careful to distinguish between inference and conjecture. A conjecture may be plausible, but it is effectively still a mere guess. An inference is a deduction from the evidence, and if reasonable can be treated as part of the legal proof to be considered in making a factual determination in any particular proceeding. Whilst sometimes it may be difficult to distinguish between conjecture and inference, nevertheless the distinction is an important one.
His Honour's observations, with respect, state a fundamental principle which is authoritatively established but which is not always observed (see also Luxton v Vines (1952) 85 CLR 352 at 358, quoting Bradshaw v McEwans Pty Ltd (1951) 217 ALR 1).
There is one other decision made by the High Court of Australia (Barwick CJ, Kitto, Taylor, Menzies and Windeyer JJ) in Rejfek v McElroy (1965) 112 CLR 517 which is not dissimilar to the Briginshaw case. That case involved the rescission of a contract on the grounds of allegedly fraudulent untrue representations inducing the contract. The matter was heard at first instance by the Supreme Court of Queensland where the judge, Douglas J, considered himself bound by decisions of the Full Court of the Supreme Court of Queensland which apparently held that for an appellant to succeed in an action for deceit, they had to establish that claim on the criminal standard, that is, beyond reasonable doubt. Douglas J found that the appellant had not satisfied him to that standard of proof and he gave judgement for the respondents.
The High Court held that the Supreme Court of Queensland was in error and that cases in which it decided that the criminal standard of proof had to be satisfied in civil proceedings as to facts which amounted to a crime should be overruled. As to the civil standard of proof, the Court said, at 521 – 522:
But the standard of proof to be applied in the case and the relationship between the degree of persuasion of the mind according to the balance of probabilities and the gravity or otherwise of the fact of whose existence the mind is to be persuaded are not to be confused. The difference between the criminal standard of proof and the civil standard of proof is no mere matter of words; it is a matter of critical substance. No matter how grave the fact which is to be found in a civil case, the mind has only to be reasonably satisfied and has not with respect to any matter in issue in such a proceeding to attain that degree of certainty which is indispensable to the support of a conviction upon a criminal charge…
In his written submissions Mr Maitland said that the standard of proof required by a cautious and responsible tribunal would vary in accordance with the seriousness or importance of the issue. He referred to the statement made by Latham J in Briginshaw. With respect, Latham J said no such thing. In fact, the citation referred to by

Mr Maitland at pages 363 – 364 is where his Honour explained that the two standards of proof was the work of the common law. However the ecclesiastical courts dealt with matrimonial matters prior to the introduction of the Matrimonial Causes Act 1857. Those courts did not attempt to define the degree of certainty required before making a finding of adultery. His Honour's subsequent statements were based on the fact that most cases in matrimonial causes depended upon circumstantial evidence and while it was true that direct evidence of the fact of adultery was not required because it would render relief almost impracticable, it was natural that reasons given by the court for its decision in particular cases often contained general observations as to the nature and amount of evidence required to justify a finding.
Regardless, Mr Maitland submitted that Briginshaw should be applied in situations where the consequences of a finding of an allegation against the person are serious, for example the cancellation of a pilot licence or the refusal to issue an AOC. With respect to Mr Maitland, I do not understand the observations made by the High Court in Briginshaw to be stating anything novel or different to what the courts have always said about drawing inferences from the evidence before them. Any such inference must be based on deduction from the evidence before the tribunal or court. It is not about selecting one possibility from a number of others.
Madgwick J in an unreported decision in the matter of Boatman declined to apply the principles enunciated in Briginshaw. The respondents submitted that given the seriousness of the consequences for their reputation and livelihood, those principles were applicable. His Honour said, at [62]:
As to the ease with which the court should be satisfied of matters adverse to them, the respondents submitted that, given the seriousness of the consequences for their reputation and livelihood of adverse findings, the evidentiary principles in Briginshaw at 361-3 are applicable. I disagree. The proceedings are primarily protective of the public, notwithstanding that fairness to impugned authorisation holders is an important part of the process. Further, any adverse finding that the court might make are provisional only: it would merely assert that there are reasonable grounds for believing that some conduct had been in contravention of the statutory requirement. It would be inconsistent with the statutory commands to the Court to consider 'reasonable grounds to believe' and to give safety the primary emphasis to require that the Court only act on proofs which are not 'inexact', testimony which is not 'indefinite' and inferences which are not 'indirect' (see Briginshaw at 362).
Mr Maitland submitted that Boatman should be distinguished from the matter before me. That was because Boatman involved a finding which was provisional and which involved the serious and imminent risk provisions in Division 3A of the CA Act. Although I accept that Mr Maitland is correct in part, that is not the entire story.
In aviation matters, where the safety of air navigation is the most important consideration (s. 9A of the CA Act), a court or tribunal must consider more than just the authorisation holders concerned in the proceeding. As Deputy President Forgie said in Phillips, the regulatory regime dealing with aviation is directed to the safety of those engaged in the aviation industry, those who fly with them on either a commercial or recreational basis and those on the ground ([247]). This was clearly alluded to by Madgwick J in Boatman.
Madgwick J's reference to having reasonable grounds to believe is plainly a reference to s. 30DC(1) of the CA Act. That section provides that where CASA has reason to believe that the holder of a civil aviation authorisation has engaged in, is engaging in, or is likely to engage in, conduct that contravenes s. 30DB, CASA may suspend the authorisation. The suspension of the authorisation is made for the purpose of enabling CASA to further investigate the matter. It is plainly provisional.
Also, the expression used in s. 28 of the CA Act dealing with the issue of AOCs requires CASA to be satisfied that the applicant has complied with, or is capable of complying with, the safety rules…. Use of the expression is satisfied is clearly a reference to being satisfied to the civil standard of proof, the balance of probabilities. The expression reason to believe is not a reference to the civil standard of proof. The High Court of Australia (Mason CJ, Brennan, Deane, Dawson, Toohey, Gaudron and McHugh JJ) in George v Rockett (1990) 170 CLR 104, when dealing with the grounds for issuing a search warrant, said at 116:
The objective circumstances sufficient to show a reason to believe something need to point more clearly to the subject matter of the belief, but that is not to say that the objective circumstances must establish on the balance of probabilities that the subject matter in fact occurred or exists: the assent of belief is given on more slender evidence than proof. Belief is an inclination of the mind towards assenting to, rather than rejecting, a proposition and the grounds which can reasonably induce that inclination of the mind may, depending on the circumstances leave something to surmise or conjecture.
It is clear that Madgwick J in Boatman's case, in rejecting the application of Briginshaw, relied on three discrete grounds for doing so. Those grounds can be summarised as: protection of the public; the provisional nature of the decision the Court was required to make; and even though the requisite level of satisfaction was below that applied by the civil standard of proof, it would be inconsistent to do so given the principal consideration must be the safety of air navigation. The first and third grounds referred to by Madgwick J in Boatman must apply equally to decisions which are not provisional. The safety of the public remains regardless of whether the decision is provisional or final. Although I accept that where a statutory provision refers to the decision maker being satisfied of a particular fact, it invokes the civil standard of proof, the application of s. 9A nevertheless requires the decision maker to regard the safety of air navigation as the most important consideration.
In my respectful opinion, the reliance by Mr Maitland on Briginshaw as the foundation upon which to argue that the standard of proof in cases where the consequences of a finding against an applicant may be serious is elevated from the civil standard, being on the balance of probabilities, is ill-conceived. There is only one standard of proof which must be met in civil proceedings. That is, the court or tribunal hearing the matter must be satisfied on the balance of probabilities. Where there is no direct evidence of matters in dispute, the court or tribunal must be very cautious if it is to draw a conclusion from indirect evidence by means of the inferential process. Inferences can only be drawn as matters of legitimate deduction based on the probative value of the evidence.
In any event, as Madgwick J explained in Boatman's case, in aviation cases where the statutory command set out in s. 9A of the CA Act requires a court or tribunal to regard the safety of air navigation as the most important consideration, while concern about the impact on the authorisation holder is an important matter, it is by no means the only matter which must be considered. The safety of air navigation impacts on members of the public, those that fly and also those on the ground. That plainly becomes the overriding consideration.
Although Mr Maitland, in his submissions on this topic, said that Mr Konstandopoulos faced allegations that he was not a fit and proper person to occupy the key personnel positions referred to in s. 28 of the CA Act, respectfully, that was not a ground upon which CASA refused to issue to him an AOC. Nor is it a ground on which CASA could have done so. The relevant provisions found in s. 28(1)(b)(i) – (iii) only refer to whether operations can be conducted or carried out safely having regard to the nature of the AOC operations. Those grounds are far narrower than the basis upon which CASA may cancel or suspend an AOC on the grounds set out in CAR 269(1). In fact CAR 269(1)(d) refers specifically to the holder not being a fit and proper person to have responsibilities and exercise and perform the functions or duties of the holder. That is not one of the bases upon which CASA refused Mr Konstandopoulos' application for an AOC.
CONCLUSIONS
Section 27(2) of the CA Act relevantly provides that except as authorised by an AOC, an aircraft shall not operate in Australian territory. That provision is modified by s. 27(9) which provides that subsection (2) applies only to the flying or operation of aircraft for such purposes as are prescribed.
The prescribed purposes referred to in s. 27(9) of the CA Act are set out in CAR 206. The prescribed purposes can generally be described as commercial purposes. Therefore, any person or company wishing to conduct commercial aviation operations in Australia using GA or RPT aircraft must hold a valid AOC. While Oasis is able to conduct flying training using RA - Aus recreational aircraft without the requirement to hold an AOC, Mr Konstandopoulos, its sole director and shareholder, wishes to expand his operation to include GA aircraft. Hence his application for an AOC. CASA must issue to an Applicant an AOC if, and only if, the Applicant satisfies CASA of the matters set out in s. 28 of the CA Act.
CASA has rejected the application for an AOC lodged by Mr Konstandopoulos on behalf of Oasis on the grounds that it was not satisfied about the matters set out in s. 28(1)(a) and s. 28(1)(b)(i) – (iii) of the CA Act. I have set out the grounds for that refusal above.
The first matter which I considered in respect of the application to this Tribunal was the infringement notices issued to Mr Konstandopoulos in 2007 on the grounds that CASA considered he had breached CAR 210 regarding the advertising of commercial operations. What is troubling about this incident is not so much the advertising itself, but Mr Konstandopoulos' reaction to the infringement notice issued by CASA. He attempted to justify his actions on the grounds that a CASA officer told him that he was permitted to go ahead and advertise commercial operations despite the fact that, at that time, he did not hold an AOC but had an application lodged with CASA for the issue of that certificate. The objective evidence before me in the form of an e-mail from CASA to

Mr Konstandopoulos and also an internal CASA e-mail made it very plain that the officer Mr Konstandopoulos said authorised the advertisement had not only done no such thing, but had told him that it offended against CAR 210. The internal e-mail also stated that the CASA officer had a number of telephone conversations with Mr Konstandopoulos explaining the breach to him. Despite all of this objective evidence, Mr Konstandopoulos maintained his stand up to and during the hearing of this matter.
In fact, Mr Konstandopoulos had altered his evidence slightly at the time of hearing stating that the discussions he had with the CASA officer were in respect only of charter flying which was the subject of his AOC application at that time. He also attempted to justify what he had said by claiming that there was some confusion about the name used by Oasis (Flight Training) although the AOC application excluded flying training. In fact the internal e-mail makes it clear that Mr Konstandopoulos considered that it was Oasis which provided flight training for GA under the MAS AOC. Quite plainly it did not. GA flight training was conducted by Mr Konstandopoulos under the MAS AOC. It had nothing to do with Oasis. What concerns me most about this incident is that Mr Konstandopoulos swore that the evidence set out in his witness statement was true and correct at the time it was admitted into evidence. The objective evidence indicated that his statement was false. Also of grave concern is the fact that despite being told of the infringement, Mr Konstandopoulos simply ignored that advice. This is a common theme running through Mr Konstandopoulos' history in his dealings with CASA.
The second matter raised by CASA concerned the infringement notices issued to

Mr Konstandopoulos for breaches of CAR 289(1) involving smoking within the vicinity of aircraft. Once again, the objective evidence disclosed, beyond reasonable doubt, that Mr Konstandopoulos ignored the prohibition set out in CAR 289(1) despite a number of warnings and complaints made by RAAF personnel at RAAF Base Williams. Despite his conviction on 10 charges of breaching CAR 289(1) and his failure on a subsequent appeal where the County Court judge said that he had little hesitation in finding each of the charges proven beyond reasonable doubt, in the witness statement he prepared for the hearing of this matter he said he believed the allegations were made vexatiously by persons with whom he was in dispute. Also, even after his failed appeal, in an e-mail to CASA on 16 September 2010 he claimed to maintain his innocence.

Mr Konstandopoulos in cross-examination also suggested that although he may have been within 15 m of an aircraft while smoking, he was inside a building. That statement contradicts a statement made by the County Court judge. Despite the strong evidence with which he was confronted, Mr Konstandopoulos continued to maintain his innocence.
The next matter referred to by CASA was the training flights conducted by

Mr Konstandopoulos for flying instructors out of RAAF Base Williams under the BAS AOC. Mr Konstandopoulos denied having done so and maintained that denial at the show cause conference conducted on 9 August 2012. CASA's investigation of the persons involved in those training flights revealed that they maintained the flights were conducted from RAAF Base Williams. Mr Konstandopoulos then changed his evidence claiming that he had not seen the BAS AOC and did not check whether he could do training from Point Cook but simply relied on Mr Gobel, who was the principal of BAS. It should be apparent that once again, Mr Konstandopoulos has maintained he committed no breach of any safety rule despite being confronted with the objective evidence to the contrary. Upon that evidence being produced, he has simply changed his story and attempted to move the blame to another person. That response was totally unsatisfactory.
Mr Konstandopoulos displayed the same attitude and behaviour once again when CASA put to him that Mr Smith was permitted to fly solo although he had not been issued with the student pilot licence which is a requirement under s. 20AB of the CA Act. At the show cause conference on 9 August 2012 Mr Konstandopoulos said that he approached the CFI of MFT at that time, Mr Buckley, who told him that he had the student pilot licence. Mr Buckley subsequently denied that in a statutory declaration. He also attempted to say that Mr Smith told him he had the licence but he didn't have it on him. Mr Smith denied that to be the case. I had no reason to disbelieve either Mr Smith or Mr Buckley because they have no interest in this matter whatsoever. In fact Mr Smith lodged an application for his student pilot licence shortly after completing his GFPT. At this time Mr Smith was conducting his flying training with MAS where Mr Williams was the CFI. In his witness statement dated 22 August 2012 Mr Williams recalled

Mr Konstandopoulos approaching him to certify and sign a student pilot licence application form for Mr Smith stating: CASA had lost his paperwork and has to be sent again. The evidence I had from Mr Buckley, Mr Williams and Mr Smith was all consistent and contrary to what Mr Konstandopoulos said.

CASA also identified false and misleading information which Mr Konstandopoulos entered on his AOC application form. Once again, Mr Konstandopoulos had an excuse relating to an error on a spreadsheet. However, I did not have in evidence the spreadsheet or the program he said was incorrect which caused the error. Furthermore, all of the hours entered on the AOC application form were in round figures and plainly not an accurate extract from his log book. Again, it is not so much the error or the carelessness perhaps which resulted in the error, but rather Mr Konstandopoulos' attempts to shift the blame to anyone or anything other than himself. The same can be said regarding his failure to record the infringement notice regarding misleading advertising in 2007. Although Mr Maitland submitted that this was a minor matter, given that it constituted a breach of s. 136.1(1) of the Criminal Code Act 1995, it clearly was not.
Mr Konstandopoulos was again issued with an Infringement Notice in May 2012 again regarding a breach of CAR 210(1). On this occasion, Mr Konstandopoulos attempted to rationalise what was on the Oasis signs offering flying training and theory courses. In my view, Mr Konstandopoulos' attempted to obfuscate by conflating Oasis' right to conduct flying training in RA - Aus registered aircraft, which would result in a trainee being granted a Recreational Pilot Certificate, with training on GA aircraft which would lead to various categories of pilots' licences being granted. Oasis was not authorised to conduct any flying training on GA aircraft. Although Mr Konstandopoulos conducted GA flying training as an individual contracted to an AOC holder, that is plainly not the same thing. In fact the evidence regarding the misleading nature of this signage was clearly illustrated by Mr Smith's evidence. He believed that his entire GA flying training up to the GFPT was conducted by Oasis. That is precisely what the signage suggests.
I also had in evidence the problems MAS encountered with Mr Konstandopoulos' failure to comply with directions given by the CFI of MAS and its Operations Manual. That failure to comply resulted in Ms Matthews, who was then the CFI, severing its relationship with Mr Konstandopoulos regarding flying training.
In my opinion, taking account of all the evidence produced to me on the hearing of this matter, CASA was right to be concerned about the issue of an AOC to Oasis. That is because Mr Konstandopoulos was the sole director and shareholder of Oasis. Furthermore, all of the positions in Oasis which are described as key personnel were to be occupied by Mr Konstandopoulos. He nominated himself as the Chief Executive Officer, Head of Flying Operations (Chief Pilot), and the Head of Aircraft Maintenance. Although he also nominated himself as the Chief Flying Instructor, the application for a flying school operation was subsequently withdrawn.
In my opinion, the direct objective evidence before me in this matter discloses that

Mr Konstandopoulos has not complied with safety rules in the past and in fact, given his attempts to justify the actions he took which CASA deemed, and subsequently proved, to be in breach of safety rules, I have no confidence whatsoever that he will comply with safety rules in the future. He disclosed no willingness by his actions to cooperate with CASA or to accept its officers' advice regarding breaches of the safety rules. I find that Oasis does not, on the balance of probabilities, satisfy the requirement to comply with or to demonstrate that it will comply with safety rules.
I also find that Oasis has not satisfied the requirement to demonstrate that its organisation is suitable to ensure that AOC operations can be conducted or carried out safely or that Oasis' chain of command is appropriate to ensure that the AOC operations can be conducted or carried out safely. Its organisation is comprised essentially one person,

Mr Konstandopoulos.
Although CASA also complained that Oasis did not meet the requirement to have a sufficient number of suitably qualified and competent employees to conduct and carry out the AOC operations safely, this point was not argued by CASA in the course of the hearing and I note from the evidentiary material before me, that Mr Konstandopoulos met the qualifications required for the AOC operations which Oasis intended to conduct. I make no finding about that.
It follows that I am of the opinion that the decision made by CASA regarding Oasis’ failure to meet the requirements set out in s. 28(1)(a) and s. 28(1)(b)(i) and (ii) was correct. That is sufficient for CASA to properly refuse to issue the AOC to Oasis as it did on 2 November 2012. I affirm that decision.

I certify that the preceding 145 (one hundred and forty-five) paragraphs are a true copy of the reasons for the decision herein of Senior Member Egon Fice
....[sgd]....................................................................
Associate
Dated 23 August 2013

Dates of hearing 11-12 June 2013

Date final submissions received 19 June 2013

Counsel for the Applicant Mr J Kewley

Solicitors for the Applicant Maitland Lawyers

Counsel for the Respondent Mr N Harrington

Solicitors for the Respondent Civil Aviation Safety Authority

Division	GENERAL ADMINISTRATIVE DIVISION
File Number	2012/4999
Re	Oasis Flight Training Pty Ltd
APPLICANT
And	Civil Aviation Safety Authority
RESPONDENT

Tribunal	Egon Fice, Senior Member
Date	23 August 2013
Place	Melbourne

Dates of hearing	11-12 June 2013
Date final submissions received	19 June 2013
Counsel for the Applicant	Mr J Kewley
Solicitors for the Applicant	Maitland Lawyers
Counsel for the Respondent	Mr N Harrington
Solicitors for the Respondent	Civil Aviation Safety Authority