Pantovic and Civil Aviation Safety Authority
[2015] AATA 992
•18 December 2015
Pantovic and Civil Aviation Safety Authority [2015] AATA 992 (18 December 2015)
Division
GENERAL DIVISION
File Number
2014/2133
Re
Jason Pantovic
APPLICANT
And
Civil Aviation Safety Authority
RESPONDENT
DECISION
Tribunal Senior Member Bernard J McCabe
Date 18 December 2015 Place Brisbane 1. The decision to cancel the applicant’s approval to act as Chief Pilot is affirmed. The decision shall take effect within 28 days of the date of these reasons.
2. The decision to cancel the applicant’s flight crew licences shall be varied in accordance with these reasons. The parties shall make written submissions within 21 days of the date of these reasons as to the appropriate form of orders giving effect to these reasons.
3. Being satisfied that it is reasonable to do so in light of the confidential nature of the material, the contents of paragraphs [16]-[22] of these reasons shall not be published to any person apart from the parties and their legal representatives and the Tribunal pursuant to s 35(2) of the Administrative Appeals Tribunal Act 1975.
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Senior Member Bernard J McCabe
CATCHWORDS
CIVIL AVIATION – Chief Pilot approval – flight crew licences – whether applicant fit and proper person – applicant failed to remain at controls of aircraft while engine running – applicant flew over water at 10-15 feet – applicant failed to ensure passengers wore life jackets – applicant consumed alcohol while piloting aircraft – sequence of events captured on video – applicant reckless and endangered lives of passengers – applicant not a fit and proper person to hold flight crew licences – period of suspension required – decision to cancel private helicopter pilot’s licence varied – suspended for six months – suspension suspended after one month provided applicant enters into enforceable undertakings – decision to cancel approval to act as Chief Pilot affirmed.
LEGISLATION
Civil Aviation Act 1988 (Cth), ss 9A, 20A, 30DK
CASES
Jones and Civil Aviation Safety Authority [2014] AATA 820
Quadrio and Civil Aviation Safety Authority [2011] AATA 709
SECONDARY MATERIALS
Civil Aviation Regulations 1988 (Cth), regs 157(1)(b), 225(1), 256(3), 256(4), 269(1)
Civil Aviation Orders, 20.11, 82.0
REASONS FOR DECISION
Senior Member Bernard J McCabe
18 December 2015
The central allegation against the applicant, Jason Pantovic, reads like a producer’s pitch to a movie studio. The scene is set: three friends at a barbeque in the country run out of beer. Police officers lurking on the back roads to town threaten to disrupt the resupply process. Relief is at hand: the leading character, Mr Pantovic, is a daring-do helicopter pilot. His helicopter is stored nearby. The three friends climb into the two-seat helicopter and lumber into the air, bound for a quintessential North Queensland hotel with wide verandahs. Mr Pantovic lands outside the hotel and one of the party swaggers inside to purchase a slab. But when the purchaser returns to the helicopter with the beer and Mr Pantovic attempts a take-off, the helicopter is unable to clear the nearby trees. It lands heavily after clipping the branches. The additional weight of the beer makes take-off from that location impossible. One of the passengers is offloaded and cadges a lift from the bemused publican to a nearby oval. The helicopter picks him up from there and, using the open space, manages to take off in the direction of the barbeque.
If that story is true – and the Civil Aviation Safety Authority (CASA) says it is – the applicant’s various licences and approvals should be cancelled at once because the story suggests the applicant was not a fit and proper person to hold them, and because he recklessly disregarded his duties under aviation law. The applicant acknowledged at the hearing he should be in deep trouble if the story were true. But he says it is not. He denies the flight occurred, and says that aspect of the case against him rests centrally on the account of witnesses who are demonstrably unreliable. He acknowledges the truth of some other allegations made against him, and disputes others, but he rejects the central allegation about the beer run in a helicopter. He says his licences and approvals should not be cancelled in all the circumstances, although he has offered undertakings that are intended to address his admitted conduct.
I am not satisfied the central allegation against Mr Pantovic is true, yet regulatory action against him is clearly appropriate in light of the other conduct I will discuss. While I would vary the decision to cancel his private helicopter pilot’s licence, I affirm the decision to cancel his approval to act as chief pilot. I explain my findings and reasons below.
THE REGULATORY FRAMEWORK
I will begin with a brief discussion of the regulatory framework and the powers which have been exercised against Mr Pantovic. It will help to provide some focus to the discussion which follows.
The regulatory system is established under the Civil Aviation Act 1988 (Cth) (the Act). Airlines, pilots and others involved in the industry require various licences and approvals issued by CASA, the regulator. Holders of the various licences and approvals are expected to comply with the detailed rules in the legislative scheme, which includes regulations (principally the Civil Aviation Regulations 1988 (Cth), or CAR) and Civil Aviation Orders (CAO). Licence and approval holders are also expected to meet minimum standards of conduct, competence and integrity.
Mr Pantovic holds a number of licences and approvals issued under the Act and subordinate legislation, including:
·A Private Pilot (Helicopter) licence, a Commercial Pilot (Helicopter) licence and a Flight Radiotelephone operator licence, collectively referred to in these reasons as “the flight crew licences”; and
·An approval to act as Chief Pilot of Panmer Pty Ltd (the Chief Pilot’s approval). Panmer owns and operates helicopters. Panmer’s Air Operator’s Certificate (AOC) requires the appointment of an approved chief pilot.
CASA says the conduct I will discuss below breaches a number of specific rules and regulations, as well as more general norms of conduct provided for in the legislation. CASA says that conduct should lead to the cancellation of the applicant’s flight crew licences pursuant to CAR 269(1), and the revocation of the chief pilot’s approval pursuant to subclause 6.1 of Appendix 1 of CAO 82.0. CASA’s reviewable decision to that effect was made on 17 April 2014. The cancellation power in CAR 269(1) permits CASA (or the Tribunal, on review) to vary, suspend or cancel an authorisation (including the flight crew licences) in any of the circumstances identified in CAR 269(1)(a)-(e). CASA adds that if the Tribunal is satisfied the grounds exist for cancellation of the flight crew licences under CAR 269(1), it also follows the applicant is surely not suitable to hold an approval to act as chief pilot under CAO 82.1.
THE PRINCIPAL PERSONALITIES
The hearing was conducted over several days in Cairns, with a resumed hearing in Brisbane when an additional witness became available. The parties subsequently provided written submissions.
A number of allegations were made against Mr Pantovic. I have already mentioned the central allegation. I will briefly introduce the principal witnesses before returning to discuss each of the allegations in more detail and make findings of fact. Once I have made those findings, I will explain how I have reached my decision with respect to the flight crew licences and the chief pilot’s approval.
Mr Jason Pantovic
The applicant in these proceedings is an experienced helicopter pilot who lives on a property in Biboohra, near the North Queensland town of Mount Molloy. Mr Pantovic obtained his commercial helicopter pilot’s licence in 2001. His licence is endorsed to permit him to operate Hughes 269, Robinson R-22 and Robinson R-44 helicopters. (At the relevant time, he owned and operated an R-22 helicopter – registration VH-HTD – that was stored on his property, although he also flew other helicopters. VH-HTD was destroyed in an unrelated incident on 9 December 2012.) His licence also permits him to conduct low flying, mustering and sling load operations. Since 2008, he has been the chief pilot of Panmer Pty Ltd. Panmer is, in effect, a family business in which he has played a central role. It holds an air operations certificate (AOC) issued under the Act. Mr Pantovic explained in his statement that he operates helicopters pursuant to the Panmer operations manual (and, it might be interpolated, in accordance with the conditions of Panmer’s AOC): exhibit 33 at [5]-[8].
Mr Pantovic accuses CASA’s principal witness of witness tampering, but the applicant himself was not above attempting to secure questionable witness statements. (I refer in particular to the statutory declaration obtained from Mr Eric Bale in uncertain circumstances: exhibit 6). After hearing all of the evidence in this case, I was left with the uncomfortable impression of Mr Pantovic and Mr Allan Gibb engaging in a shifting and unedifying contest to line up and neutralise witnesses. Mr Pantovic at least had a legitimate and understandable interest in gathering evidence, whereas Mr Gibb had darker motives.
Mr Pantovic gave evidence at the hearing, and provided two statements, exhibits 33 and 34.
Mr Allan Gibb
Mr Gibb looms large in these proceedings. He was CASA’s informant and (initially, at least) its principal witness. He claimed to be present on a number of occasions when Mr Pantovic transgressed – most obviously during the flight to the Mount Molloy hotel, but also on at least one other flight. He provided some video that was shot on his phone which appears to depict Mr Pantovic consuming beer whilst at the controls of the helicopter and flying very fast at low altitude, amongst other things. Mr Gibb gave evidence on the first day of the hearing, and provided two statements: exhibits 8 and 9.
The applicant attacked Mr Gibb’s credibility. Mr Pantovic says Mr Gibb is motivated by malice. It turns out Mr Pantovic had an affair with Mr Gibb’s former partner in May 2013, and Mr Gibb found out: exhibit 33 at [16]-[17]. The applicant said Mr Gibb peddled stories to CASA in order to even the score. As the evidence unfolded, it became clear Mr Pantovic was right about Mr Gibb’s motivation.
Mr Gibb agreed in cross-examination he was very angry when he learned of the affair. He agreed he vandalised Mr Pantovic’s home in July 2013 and made threats on the applicant’s life. Mr Pantovic called the police after that incident and Mr Gibb was subsequently charged with burglary. Mr Pantovic said he decided to withdraw the charges in August 2013 although he did obtain a restraining order: exhibit 33 at [22]-[25]. Mr Gibb agreed in cross-examination that he told the applicant he would talk to the police and make Mr Pantovic pay for what happened between the applicant and Mr Gibb’s former partner. When asked about his approaches to CASA, Mr Gibb agreed he wanted revenge. He acknowledged he wanted to make the applicant suffer, although he also claimed in his statement (exhibit 8 at [38]-[39]) that he made the threats in order to secure a confession from the applicant because “I wanted the full story”: transcript at p 53. When Mr Emmett, counsel for the applicant, suggested to Mr Gibb in cross-examination that he had made up the whole story, Mr Gibb responded flatly: “I told him if he rang the police on me that I would go to CASA”: transcript at p 78.
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The CASA investigators
There were a number of CASA officers involved in the investigation into Mr Pantovic. Mr Stallard, for example, looked into the maintenance records and other information available in relation to the damaged rotor blades of the helicopter. He provided a statement (exhibit 19) and gave evidence at the hearing. His evidence was unremarkable. The evidence of some other investigators was more problematic.
CASA investigators knew the story was suspicious from the beginning. Mr Nick Coulson, a CASA officer, rang alarm bells early on in the investigation when he said in an email dated 29 August 2013 (exhibit 14) “…I find it difficult to believe the story with respect to there having been three grown men in the cockpit of an R22”. While Mr Coulson went on to accept it might have been possible, he asked: “So I am just wondering if they are having a lend of us?”
As well he might: the nature of the allegations and the way they were offered up to CASA should have prompted a measure of scepticism. But CASA investigators were quick – too quick – to embrace Mr Gibb, and they tended to interpret the rest of the evidence with Mr Gibb’s evidence firmly in mind. It was a classic example of ‘confirmation bias’.
Mr Leif Nystrom said he first became involved in the matter when he was tasked by the manager of investigations to take statements from, amongst others, Mr Gibb. Mr Nystrom insisted in his oral evidence that he was not carrying out an investigation as such. He said he was merely “working on a tasking” assigned to him by others: transcript at p 117; see also transcript at pp 95, 111-112, and 116-118. But other evidence suggested he was conducting an investigation, even if it was not an investigation under Part IIIA of the Act. He called it an ‘investigation’ in correspondence with another CASA officer: exhibit 16. Mr Nystrom’s insistence that he was merely completing tasks rather carrying out an investigation created the impression he was trying to minimise his role, and perhaps excuse his approach. Given how things turned out, that is not altogether unsurprising.
Mr Nystrom allowed Mr Gibb to organise Mr Graham Gear to provide evidence without warning either of them not to discuss their evidence: transcript at pp 109-110. The running sheets attached to Mr Nystrom’s statement (exhibit 13), which record his investigative activities, confirm he was aware Mr Gear and Mr Gibb were talking about their evidence, and that Mr Gear had read Mr Gibb’s statement. The running sheets also confirm Mr Gibb expressed a view about the likelihood of the hotel publican giving evidence against a client: one could draw an inference that Mr Gibb had already raised that question with Mr Scott Peters, the publican. (Mr Peters subsequently agreed to give evidence, albeit reluctantly.) Mr Nystrom also agreed he provided Ms Andersen, a potential witness, with copies of draft statements for Mr Gibb: transcript at pp 110-111. (Mr Nystrom said he was provided with an email address for Mr Gibb that was used by Ms Andersen.) Those statements named Ms Andersen, yet Mr Nystrom did not recall warning the two to keep their evidence separate. He conceded as much in the following exchange with Mr Emmett during cross examination:
Mr Emmett: Didn’t you say, “Look, it’s best not to talk about the substance of the evidence” knowing that they were both potential witnesses and that they were otherwise likely to talk about it together on a daily basis?
Mr Nystrom: I think it is likely that I did not brief Mr Gibb along those lines.
Mr Emmett also asked Mr Nystrom about an early comment from Mr Gibb (recorded in the running sheet attached to Mr Nystrom’s statement at exhibit 13) in which he claimed he was seated in the helicopter on the flight to Mount Molloy “with his knees up around his ears”. The email from Mr Coulson, from which I have already quoted, suggested that would not be possible: Mr Coulson, a test pilot, said the only way the third individual could fit in the helicopter was if he had his legs hanging out the door (exhibit 14). Yet Mr Nystrom said in cross-examination that he did not put that discrepancy to Mr Gibb. Mr Nystrom’s explanation for his failure to do so is worth noting. In cross-examination, he said:
I haven’t flown in a Robinson R22. I’m an investigator, I take on board any information that I receive. Mr Coulson made those comments as an expert pilot. Those comments are there for you to digest and deem if it’s appropriate. I have no views on the matter.
I am troubled by that view of the investigator’s role. Investigators are not cyphers who passively receive and collate information from witnesses – particularly witnesses who self-select, or who are selected by an outsider with an axe to grind – without exercising any judgment as to the veracity of what they are told. But it is not an accurate description of Mr Nystrom’s role in any event. He did not simply “take on board any information that [he received]”. There appeared to be an element of selectivity in his approach to the evidence. For example, Mr Nystrom did not approach another potential witness, Mr Allan Scott. Mr Scott was a friend of Mr Pantovic. Mr Gibb told Mr Nystrom that Mr Scott was unlikely to give evidence, and Mr Nystrom took his enquiries no further. When Mr Emmett asked in cross-examination why Mr Nystrom did not approach Mr Scott, who might help Mr Pantovic, but approached other witnesses who were suggested by Mr Gibb, Mr Nystrom again insisted it was not his investigation: transcript at p 118.
I have difficulty accepting Mr Nystrom’s argument that he could not be expected to exercise judgment or take responsibility for the investigative strategy because he was not conducting an investigation. But even if he was not in a position to direct the investigation, it is unclear who within CASA was responsible.
Mr Haslam also participated in the investigation, albeit after it had progressed somewhat. He provided a written statement dated 30 October 2014 (exhibit 20) and gave evidence at the hearing. He explained in his oral evidence that he was the investigator attached to CASA’s Cairns regional office but he was on leave when the Gibb allegations came to light. He said Mr Nystrom, who is based in Canberra, was tasked to provide “investigative assistance”. When Mr Haslam returned from leave, he was also tasked to provide assistance. Mr Haslam initially appeared keen to downplay his own role: he said he was assigned tasks by the head of the investigations branch (there were several persons acting in that role over time, it seems) at the request of the regional manager who wanted to obtain additional evidence for the purposes of these proceedings: transcript at p 138. In cross-examination, he agreed he worked “very closely in relation to this investigation” and pursued his own lines of inquiry: transcript at p 145.
Mr Haslam was invited to comment on whether he was satisfied the flights in question all occurred. Curiously, he declined to do so. He said he had not formed a view. He explained he was not present so he was not in a position to talk about whether the flights occurred as alleged. That is puzzling. When pressed to explain himself, he said (transcript at p 146):
All I can say that this is what has been reported to us, and on that basis then if they did occur, then this is CASA’s position.
I am not sure what that means. It certainly seems odd that an investigator has no view about the integrity of the evidence he provided to the Tribunal. As it happens, Mr Haslam subsequently gave a different view of his role when he said in cross-examination (transcript at p 158):
We get gut feelings, all sorts of things, all the time, and we act on those gut feelings.
Mr Haslam conceded he had some concerns from an early stage about the reliability of some of the witnesses – Mr Gibb in particular, and Ms Andersen. He said he was aware of the animus between Mr Gibb and Mr Pantovic. When Mr Emmett asked in cross-examination whether that knowledge informed his approach to his dealings with Mr Gibb, he downplayed the level of contact he had with Mr Gibb. He said he only spoke with Mr Gibb about twice on the phone and once in person when he needed to get a further statement to “shore up or clarify some issues in his first statement …”: transcript at p 147.
It is unsurprising that Mr Haslam would seek to shore up Mr Gibb’s evidence. He must have been aware of the problems that were apparent from the running sheets recording the details of Mr Nystrom’s investigation: transcript at p 149ff. Mr Haslam must have been aware that Mr Gibb and Mr Gear were talking to each other about their evidence. He agreed in cross-examination that he never instructed Mr Gibb or Mr Gear not to talk to other witnesses about the evidence: transcript at pp 151-152. His own running sheets confirm Ms Andersen told him on 7 May 2014 that she had also read Mr Gibb’s statement. He agreed he did not caution her against discussing the evidence with Mr Gibb even though he anticipated obtaining a statement from her: transcript at p 153.
Mr Haslam said he was aware of the difficulties in the relationship between Mr Gibb and Ms Andersen – although he conceded he did not make any record of threats of violence being made by Mr Gibb against Ms Andersen: transcript at p 165. He said he kept those difficulties in the back of his mind but added (transcript, at p 154):
… I rely on the witness to tell the truth in relation to their dealings, and if they are prepared to sign a statement attesting to the evidence they’re giving me, then I have to have some faith that they are telling me the truth.
Interestingly, Mr Haslam did not take the same essentially trusting approach towards Mr Eric Bale. Mr Bale resided next door to the Mount Molloy hotel. CASA says Mr Pantovic landed his helicopter in Mr Bale’s yard. Mr Haslam confirmed in his oral evidence that Mr Bale initially told him the helicopter did not land on or near his property. But Mr Haslam was having none of that: he said there was something in the way Mr Bale spoke to him on the telephone that caused him to doubt Mr Bale’s denials. He decided to enlist the services of the local police. He explained in cross-examination (at p 157):
I asked [the local police] if they knew Mr Bale, and whether or not they could make some further inquiries in the area.
Mr Haslam decided to arm the police with Mr Gibb’s version of events. He agreed he informed them of his suspicions about Mr Bale before they went about whatever inquiries they made: transcript at p 158. Unsurprisingly, an obliging police officer confirmed Mr Bale “was being cagey” when the officer paid him a visit on 13 May 2014: transcript at p 168; see also running sheets annexed to exhibit 20. Mr Bale subsequently withdrew his denial and agreed to attend the station to sign a statement making allegations about Mr Pantovic after his discussion with the police officer: see entries for 13-14 May 2014 in running sheet annexed to exhibit 20.
This is worrying stuff. Mr Haslam clearly formed an adverse view of Mr Pantovic and he was prepared to pressure witnesses into cooperating with his “investigative activities” by enlisting the assistance of the local constabulary in what was not, at that point, a criminal investigation. He demonstrated slightly more subtlety when he was discussing significant changes Ms Andersen wanted to make to her draft statement. She had indicated she wanted to remove a number of passages from the draft Mr Haslam had prepared and discussed with her previously. Mr Haslam contacted her and, in effect, talked her out of making the changes: transcript at pp 171-172. He denied he pressured, hassled or badgered her to sign the statement without making the changes she sought. She agreed to sign the statement without significant amendment after Mr Haslam visited her: transcript at pp 171-173. Given Ms Andersen has since renounced what she said in her statement, Mr Haslam’s role in convincing her to sign it is particularly unfortunate.
I have already noted Mr Haslam was aware Mr Gibb had an axe to grind. Mr Haslam was also questioned in cross-examination about his discussion with Ms Sally Morris. The investigator’s running sheet annexed to exhibit 20 included an entry for 19 May 2014 which recorded the following information:
She asked if I was aware that there are some nasty vindictive people trying to do awful things to [Mr Pantovic]. I said I was not interested in any potential personal conflicts and only interested in facts surrounding the operation of the helicopter …
In cross-examination, Mr Haslam said he responded in that way because he wanted to focus on the aviation-related matters and did not want to be distracted by personal issues. He insisted (transcript at p 173):
I’m not interested in the private affairs of the persons involved. I want to get to the facts of the matter.
Unfortunately for Mr Haslam, the tangled “private affairs” of individuals in this community could not be separated from the allegations that were being made. It was, at a minimum, naïve to ignore the motivations of the witnesses.
The CASA investigators did not do a good job. They were clearly predisposed to believe Mr Gibb and ignored warning signs about the reliability of his evidence. They allowed him to contaminate the evidence provided by other witnesses when they failed to warn him, and the other witnesses, that they should not discuss their statements with each other. The investigators gave Mr Gibb too much credit and may have relied on him too heavily to identify and contact witnesses. They also appeared to bring pressure to bear on witnesses to cooperate – cooperation that was subsequently withdrawn.
I do not suggest the CASA investigators acted dishonestly or in bad faith. They were simply taken in by a story about Mr Pantovic and then pursued him in a determined and blinkered way, confident in their conviction that he had done that which was alleged against him.
THE INCIDENTS
The flight to the Mount Molloy hotel
Mr Gibb told the story of the flight to the Mount Molloy hotel in his statement (exhibit 8), and repeated some of the detail in his evidence-in-chief at the hearing. In his statement, he said the flight to the Mount Molloy hotel occurred in October or November 2012. Mr Gibb said he and the applicant ran out of beer while drinking at Mr Gibb’s home. Mr Gibb said he and Mr Pantovic had drunk 12-15 stubbies each by that point. The applicant volunteered to take Mr Gibb and another friend, Mr Graham Gear, on a resupply run to the Mount Molloy hotel. The three men climbed aboard the applicant’s two-seater R-22 helicopter and took off with Mr Pantovic at the controls. After a short flight, the aircraft landed adjacent to the hotel. The landing site was a vacant block beside and behind the hotel, but it was bordered by trees on at least one side and by houses on another. One of the men alighted from the helicopter and went into the hotel to purchase a slab of beer. (Mr Gibb said in his first statement that he recalled it was the applicant who went into the pub to acquire the beer: exhibit 8 at [19]. He changed his story in his second statement. He said he had gone into the pub to buy the beer where he also had a conversation with Mr Mark Wessels: exhibit 9 at [11]-[12].) The person who acquired the beer returned with the hefty slab and boarded the helicopter. Mr Gibb recalled it was placed in the compartment under the seat: exhibit 9 at [13], although he did not provide that detail in his earlier statement. The extra weight of the slab made it harder for the already overloaded aircraft to take off in the relatively confined space around the hotel. The aircraft struggled to get into the air and was unable to clear the surrounding trees. The spinning rotors struck branches and the helicopter came back to earth, landing heavily. Mr Gear alighted from the aircraft. Apparently it was decided the helicopter would take off with two people and meet Mr Gear down the road at an oval. The aircraft would have a better chance of achieving flight if it had more room to effect a take-off. The publican gave Mr Gear a lift to the oval. Mr Gear boarded the aircraft and it lumbered into the air. It returned home without further incident.
The applicant subsequently reported damage to one of the rotor blades. CASA says the rotor blade was damaged in the incident when it struck the tree branches behind the hotel in the course of the abortive take-off.
I will deal with the allegations about the flight first. I have already noted Mr Gibb was an unreliable witness who was motivated by malice. CASA has produced other witnesses to corroborate his account. But before I proceed to consider those witnesses, I should first deal with Mr Gear.
Mr Gear did not give evidence at the hearing. That is a pity. He was supposedly the third person in the helicopter on the fateful flight to the Mount Molloy hotel in 2012. It seems he was unwilling to cooperate with CASA. That much was clear from the statement of Mr Nystrom, the CASA investigator who spoke with Mr Gear: exhibit 13. Mr Nystrom spoke with Gear on a number of occasions and prepared drafts of a statement. Mr Gear refused or failed to sign the draft statement and avoided further contact with Mr Nystrom after initially providing some information: at [15]. The unsigned witness statement was included in the s 37 documents: exhibit 1 at p 261ff. In that statement, Mr Gear confirmed he was friends with Mr Gibb and Mr Pantovic and that he had discussed the matter with Mr Gibb before making the statement.
Mr Gear also provided CASA with a statutory declaration dated 24 April 2014. That statement is annexed to Mr Nystrom’s statement and is reproduced in exhibit 1 at p 186. Mr Gear said:
I didn’t accompany Jason Pantovic and Alan Gibb on a flight to mt molloy in December 2011. And have never been in a helicopter with Jason Pantovic ever.
I cannot give the unsigned statement any weight. The applicant did not have the opportunity to cross-examine Mr Gear. Given the question marks which have arisen over his evidence – the potential influence of Mr Gibb, for example – and the fact Mr Gear has given an inconsistent statement (which I also propose to set aside), I am satisfied it would be unfair to use the document. I turn then to the other evidence.
It was initially suggested it may not be physically possible to squeeze three people into the cabin of an R-22 helicopter. I wondered about that after I had the opportunity to inspect an R-22 at Cairns airport in the course of a view organised by the parties. It is a very small aircraft. But CASA’s expert witness, Mr David Lamb, was able to demonstrate three people could be squeezed into the tiny cabin, albeit uncomfortably. The applicant conceded it was possible. Mr Lamb also testified the helicopter was capable of achieving and sustaining flight with three people aboard, albeit that its performance was dangerously compromised: exhibit 22 at [21]. That evidence was contradicted by the applicant’s expert, Mr Barry Dick, an experienced pilot who had flown overloaded helicopters during his military service. Mr Dick doubted whether there would be sufficient aft cyclic available when the helicopter was overloaded and its centre of gravity was too far forward: transcript at pp 304-305. In final submissions, the applicant conceded Mr Lamb’s opinion “should carry some weight” and conceded the evidence, taken as a whole, did not establish it would have been impossible for the helicopter to achieve flight and make it back to its point of origin when overloaded in the way described by CASA’s witnesses: submissions at [30]. I agree. I accept Mr Lamb’s evidence corroborates Mr Gibb’s evidence to the extent Mr Lamb’s evidence shows the flight was practically possible.
CASA called Mr Bale to give evidence at the hearing. Mr Bale also provided a statement (exhibit 6). At the relevant time, Mr Bale lived with his partner in a house adjoining the south-east corner of the boundary of the Mount Molloy hotel. He said in his statement that his view of the hotel yard was partly obscured by foliage. He recalled an afternoon “at least several years ago” when he heard a helicopter overhead. He said he heard an aircraft come in to land nearby but – surprisingly – he did not come out to watch. He had no idea where it actually landed. He assumed the landing site was in the vicinity of the rear yard to the hotel. About half an hour later, he heard the engine start up and the aircraft apparently readied for take-off. (I note other witnesses said the aircraft was on the ground for a much shorter period: see below.) Mr Bale said he came outside to watch at that point. When he caught site of the helicopter, it was already in the air and on the move, albeit that it was low to the ground. He did not see the aircraft hit anything or come into contact with the foliage. His statement records what happened next (exhibit 6 at [10]-[12]):
[10]The helicopter started to turn towards the south and was flying over a neighbour’s property on my northern boundary and just above a tree. The helicopter seemed to be struggling to gain height and was moving forward at a slow pace. He wasn’t loosing [sic] height but just seemed to be having difficulty gain [sic] lift. The engine wasn’t spluttering or anything like that but he just appeared to be having difficulties.
[11]I stood up and gestured to the pilot to land on my back yard. The helicopter then landed in my rear yard. It did not strike anything as it landed but did appear to land a bit heavy.
[12]The engine slowed and I saw a fairly solid male person get out of the left hand side of the helicopter. I don’t recall how many others were on board the helicopter when this male got out. The engine remained on but at an idle speed and the rotors were still turning.
Mr Bale did not approach the helicopter or speak to any of the occupants even though he said the aircraft was on the ground in his yard for about five minutes. That seems odd: it was hardly an everyday event (Mr Bale confirmed in his oral evidence it had never happened before: transcript at p 23), so one would expect the witness to have a clear recollection of the details, and to have made some attempt to speak to the occupants of the aircraft which had just dropped unheralded onto his property. He could not remember much about the helicopter other than that it was small, and he did not attempt to take note of the registration. He did recall seeing a yellow carton in the helicopter, or perhaps in the hands of one of the occupants: exhibit 6 at [14].
While Mr Bale said in his statement that he gestured to the pilot when the aircraft was still in the air, he also said in his statement that he did not know Mr Pantovic was the pilot until sometime later when Mr Pantovic was a passenger on Mr Bale’s bus en route to a fundraising event. He said they had a conversation during the course of the journey which Mr Bale recounted in his statement as follows: exhibit 6 at [18],
One of the passengers I picked up from the Biboohra school was a person who I now know to be Jack. I don’t know how the conversation started but I recall that during the drive back to Mount Molloy, Jack had a conversation with me. I can’t recall exactly what was said but from the conversation I became aware that he was the pilot of the helicopter than [sic] landed in my back yard.
Mr Bale said Mr Pantovic had visited the Bale residence on several occasions after they met on the bus. Mr Bale said Mr Pantovic asked whether investigators had been in contact regarding the incident in his backyard. Mr Bale recalled the applicant asking him not to say anything to investigators. He also recalled Mr Pantovic visiting in May 2014. During that visit, Mr Bale was asked to fill out a statutory declaration confirming he did not notice any aviation movements on a particular date. Mr Bale said he completed the declaration because he did not have a recollection of specific dates. He said he did not remember what he wrote. The declaration is annexed to Mr Pantovic’s statement (exhibit 33, annexure JP-5).
Mr Bale was a poor witness when called to the stand. He was obviously reluctant to give evidence, and he was vague and occasionally evasive. He agreed he sometimes had memory problems: transcript at p 39. He was unsure of the applicant’s last name (transcript at p 27). He agreed he was uncertain of when he first met Mr Pantovic, although he insisted it was during a bus trip. In his evidence-in-chief, he said (transcript at p 27):
Actually, I just ask him – actually someone said he was a helicopter pilot. Then I said something like, “You weren’t the fellow that landed in the yard at the back of my place there?” He said “That was me.” Or something to that effect. So that’s the only reason why I know that.
When questioned about this conversation during cross-examination, Mr Bale was less forthcoming. He agreed he had a poor recollection of the conversation with Mr Pantovic on the bus (transcript p 37). He acknowledged his statement was completed after he discussed his recollection with Mr Haslam, the CASA investigator. Mr Bale agreed he initially told CASA investigators – specifically, Mr Haslam – he knew nothing about the incident (transcript at pp 35-36) but then decided to change his story. His explanation for the change in story was unsatisfactory. He denied giving Mr Pantovic a false statutory declaration: Mr Bale claimed the statement was accurate because it merely said he did not recall the incident occurring in December 2011 – but he insisted in his evidence that it did occur at another unspecified time. He explained in his oral evidence that his judgment may have been affected at the time he gave that declaration because of a death in the family, adding “Well, I just really couldn’t give a bugger, could I?”: transcript at p 35.
Mr Bale was also vague about details of the incident when cross-examined by Mr Emmett. While Mr Bale’s statement had him going inside his house when he heard the aircraft land at the back of the hotel, he suggested in his oral evidence that he remained outside while the helicopter was on the ground as he enjoyed a beer. When the helicopter took off from its initial landing site and came into view, his recollection of the details was hazy. He was unsure whether he saw a carton of beer in the helicopter, although he might have done. (That evidence was potentially significant because it became apparent when I undertook the view that the carton of beer would almost certainly have to be stowed in a space under the seat of the aircraft – it would not otherwise fit.) He was also unable to identify anyone in the helicopter although he had a clear view of the aircraft and recalled gesturing to the pilot. He said in his statement that one of the passengers alighted from the left side of the aircraft and exited the yard (exhibit 6 at [12]) but in cross-examination he said it was the pilot, although he did not have a clear view: transcript at p 41. He agreed he did not make any attempt to speak to that man or anyone else in the aircraft. He said he could not see clearly into the helicopter and “I didn’t take much notice of it”. That seems unlikely given it was such a remarkable event. He was also able to identify trees that had been interfered with during his evidence-in-chief (transcript at p 24) even though he said in his statement that he did not see the aircraft strike anything: exhibit 6 at [9]. When questioned about this disparity during cross-examination, he was evasive: transcript at pp 39-40. He was also evasive when questioned about his interaction with the publican, Mr Peters, in the immediate aftermath of the incident: transcript at pp 30-31. He said Mr Peters did not discuss the incident with him, merely asking if Mr Bale and his wife were alright: transcript at p 32. He admitted Mr Peters raised the incident on a subsequent occasion, about six months later, but he did not recall anything of substance from that conversation: transcript at pp 32-33. (Mr Peters, in cross-examination, denied visiting Mr Bale immediately after the incident or discussing it with him subsequently: transcript at p 212.)
Mr Bale was also evasive about how often he patronised the Mount Molloy hotel and how well he knew the locals: transcript at p 30. He flatly denied knowing Mr Gibb and claimed they only met for the first time on the morning of the hearing before he gave evidence: transcript at pp 34, 35. Mr Bale said he had not discussed the incident with anyone apart from Mr Peters (and, presumably, Mr Haslam and the police officer who visited at Mr Haslam’s request). That seems odd given he was a key witness to what surely must have been a major event in the small town.
Mr Emmett suggested to Mr Bale that his recollection was influenced by his discussions with Mr Haslam, the CASA investigator. Mr Bale denied Mr Haslam had threatened prosecution if Mr Bale failed to cooperate although Mr Bale did recall swearing one of his statements at the police station: transcript at p 36. The following exchange (transcript at p 42) was telling:
Mr Emmett: Mr Bale, I need to suggest to you that you don’t have the clear recollection that you’re saying you have and that in your discussions with Mr Haslam you may have come to think you recall things more clearly than you do, is that possible?
Mr Bale: That’s true. Some things I can remember and some I can’t.
I am not satisfied I can rely on the evidence of Mr Bale. He has given a prior inconsistent statement that he did not adequately explain, and he was evasive, vague and inconsistent in his oral evidence. He accepted he has a poor memory. That concession was obviously justified. I am also concerned there is a real risk his evidence has been contaminated by an over-eager investigator – or by someone else – who appears to have supplied details which were included in Mr Bale’s statement but which he did not independently recollect. His nervous behaviour in the witness box suggested it was possible he was fearful of being prosecuted himself following the involvement of the police.
CASA’s second principal witness was the publican at the Mount Molloy hotel, Mr Scott Peters. He provided a brief statement (exhibit 21) and gave oral evidence. At first glance, the statement appears damning. Mr Peters says the helicopter landed and Mr Pantovic, Mr Gibb and another man came into the pub after the helicopter landed and purchased beer. He subsequently drove the man he did not know to a nearby oval where he recalled Mr Pantovic was waiting in the helicopter. On closer examination, the statement raises some questions. Mr Peters did not actually see the helicopter land at the hotel. He also said all three men came into the hotel to purchase beer – which is at odds with the account of Mr Gibb, who said only one of them went inside (albeit that he did not tell a consistent story as to who that was). He also said:
[11]I think that JACK’s helicopter was on the ground at the cricket pitch when I got there.
[12] I saw the man get out of my car. I saw the man get into the helicopter with Jack and Allan. I then drove back to the hotel.
[13] I can’t remember seeing the helicopter fly away from the cricket pitch.
Those passages in Mr Peters’ statement are strikingly vague: one would expect the details of such a remarkable event – and his intimate role – to be fixed in Mr Peters’ memory. He also said he did not wait around to see the helicopter take off. That seems oddly nonchalant.
Mr Peters got off to a bad start in cross-examination at the hearing. He confirmed Mr Gibb was an acquaintance whom he saw infrequently at the pub, but not a friend. When asked if he knew there was a falling out between Mr Pantovic and Mr Gibb, Mr Peters said he was aware of a falling out and the following exchange ensued (transcript at pp 205-206):
Mr Emmett: Do you know that Mr Gibb has given evidence in these proceedings?
Mr Peters: Yes, I’ve heard, yes.
Mr Emmett: Do you know why?
Mr Peters: No.
Mr Emmett: Has Mr Gibb told you about his falling out with Jack?
Mr Peters: No, he hasn’t.
Mr Emmett: So- - - ?
Mr Peters: I don’t think so. I’ve heard it was something to do with Jack and his wife or something.
Mr Emmett: Who did you hear that from?
Mr Peters: No one.
Mr Emmett: You must have- - - ?
Mr Peters: Just chat in the pub.
Mr Emmett: You must have heard it from someone?
Mr Peters: Could have been but I can’t just say who it is because I don’t know.
Mr Emmett: But there’s, you know, general gossip in the pub, is there, about other things – Jack and Allan? Is that right?
Mr Peters: Yes, well, I heard – I would have – well, the only place I work is in the pub, so - - -
Mr Emmett: But you’re sure it wasn’t Allan who told you?
Mr Peters: No, I’m not sure.
Mr Emmett: It could have been Allan?
Mr Peters: It could have been.
Mr Peters subsequently admitted he may have discussed the incident with Mr Gibb on several occasions, and that the incident was the subject of gossip in the pub: transcript at p 208. The reluctant disclosure of Mr Gibb’s involvement is a matter of real concern, given I have already referred to Mr Gibb’s malicious motivation and his capacity for interfering with witnesses. Mr Peters also admitted to discussions with CASA investigators in which they appeared to supply him with details that were subsequently included in his statement. For example, Mr Peters said in his statement that the incident occurred “about 2 years ago” (i.e. in 2011): exhibit 21 at [5]. But in cross-examination he said he could not remember when the incident occurred. The exchange with counsel proceeded as follows (transcript at p 208):
Mr Emmett: Where did the guess of late 2011 come from for the date of the incident?
Mr Peters: The guys from CASA.
Mr Emmett: They suggested it to you, did they?
Mr Peters: They would have said, yes, it was that time, because I wouldn’t have known.
Mr Peters was obviously uncomfortable about being called to give evidence. He said as much to the CASA investigators when they approached him to provide a statement. During cross-examination, he suggested the whole affair was much ado about nothing. He said the incident was petty: transcript at p 211. That attitude may explain why he gave evidence in such a cagey manner. But there were other problems with his account which call his reliability into question. For example, in his statement he said he was approached by the passenger in the helicopter for a lift to a nearby oval. But at the end of his cross-examination, he said the oval was only 300-400 metres away from the hotel. He also said he doubted whether he had any staff on to cover him during his absence, apart perhaps from his wife. (Mr Wessels, another patron of the bar, recalled that Mr Peters was alone: exhibit 40 at [13].) Indeed, Mr Peters told me (transcript at p 217) he did not go outside to look at the helicopter when it landed because he could not leave the bar – yet he said he was prepared to leave the bar to give a man he did not know a lift down the road when the man could easily have walked that distance on his own. He suggested in the course of the same exchange with me that he agreed to leave the bar and give the man a lift because the man was friends with the applicant and Mr Gibb (transcript at p 217). That is odd, given he said earlier in his evidence that Mr Gibb was “just an acquaintance” (transcript at p 205) and there was no suggestion he had a closer relationship with Mr Pantovic that would arouse feelings of goodwill. Yet he also agreed he did not see the helicopter land and his answers to Mr Emmett in cross-examination suggest he was not clear whether he saw the applicant at all when the helicopter was outside the hotel, and may have just assumed it was the applicant at the controls: transcript at p 215.
If Mr Peters’ written statement was short of detail, his oral evidence was even more confusing. He was unable to offer a coherent description of what occurred. Aspects of his account were improbable. It was also apparent that at least some of the detail had been supplied to him. I do not think I should give his evidence any weight in the circumstances.
Mr Wessels was CASA’s last witness who gave an account of what supposedly occurred the day a helicopter landed at the pub. Mr Wessels provided a statement (exhibit 40) and gave oral evidence at the resumed hearing. In his statement, he said he was at the Mount Molloy hotel that day because Mr Gibb, a friend, had asked to meet there around lunchtime for a drink. Mr Wessels said he was not aware Mr Gibb was planning to arrive by helicopter. I note there is no suggestion in any of Mr Gibb’s evidence that he was planning to arrive at the hotel in a helicopter either: he made it clear the trip was the result of a spontaneous suggestion from Mr Pantovic. Mr Wessels said Mr Gibb was already at the hotel when he arrived. Mr Wessels said he watched Mr Gibb purchase the slab of beer and exchanged a few words before Mr Gibb decamped out the back of the hotel and climbed aboard a Robinson R-22 helicopter. Mr Wessels recalled there were three people in the aircraft but he did not identify Mr Pantovic. He did not learn the identity of the pilot until Mr Gibb told him about it several weeks later.
In what had become a familiar pattern, Mr Wessels was much less certain of his story when he gave oral evidence. He was unsure whether there were three people in the helicopter, for example: he said he saw a pair of legs sticking out of the cabin, but the only occupant he was sure about was Mr Gibb. Indeed, Mr Wessels confirmed he told the applicant’s solicitor, Mr Glynn, in a telephone conversation that “for all I know it could have been Gibbo flying that chopper”: transcript at p 415. While he was subsequently told it was Mr Pantovic flying the helicopter, he admitted he had also been told the helicopter belonged to somebody else, and someone other than the applicant had been the pilot: transcript at p 416. When pressed about the details of his conversation with Mr Gibb of when he learned the pilot was Mr Pantovic, Mr Wessels admitted the conversation might have occurred a week, months or even a year later, rather than “a few weeks later” as he had said in his statement at [16]: see transcript at p 429.
Mr Wessels’ story frayed under cross-examination. While he had said in his statement that Mr Gibb was already present at the hotel when Mr Wessels arrived, he said in cross-examination that he was already seated in the pub when Mr Gibb appeared at the bar. When pressed, Mr Wessels initially obfuscated, suggesting his statement was correct because Mr Gibb must have been present elsewhere in the pub – but then he finally admitted he (Mr Wessels) had been seated for about 10 minutes when Mr Gibb first came into sight: transcript at pp 417-418. Mr Wessels was also remarkably vague in his recollection of the detail of what he saw when he watched Mr Gibb board the helicopter after he exited the hotel: transcript at p 419-421. Given the helicopter was so small and it would require considerable manoeuvring for Mr Gibb to get into the aircraft if there were three people in a two-seat cabin, it is remarkable that Mr Wessels should not recall Mr Gibb experiencing some difficulty: transcript at p 421.
Mr Wessels was unable to elaborate on many of the details of his account, and became exasperated when pressed – as the following exchange demonstrated (transcript at p 422):
Mr Emmett: Is it true or false or do you not care if it’s true?
Mr Wessels: It’s nothing to do with not caring. I – sitting here at this point, I don’t even know what year this happened. You’re trying to get me to recollect stuff that I don’t remember and I honestly don’t care about, mate. This is not my concern …
There was also a question over the extent of Mr Wessels’ relationship with Mr Gibb. He suggested at one stage that he did not know Mr Gibb well, and that they were not friends: transcript at p 416. That seems odd. The two were clearly sufficiently friendly for Mr Wessels and his wife to agree to meet Mr Gibb at the pub on the day in question, if his other evidence is to be believed. There may well have been friction in the relationship with Mr Gibb once CASA became involved and it became clear Mr Wessels would be required to give evidence. Mr Wessels noted he was upset at that prospect and he was annoyed he had become entangled in the whole affair. He claims he told Mr Gibb as much and Mr Gibb said he would “speak to someone” to see if he really would be required to give evidence: transcript at p 425.
Taken at its highest, Mr Wessels’ evidence does not put Mr Pantovic at the scene on the day in question. I would add that Mr Gibb’s involvement may also have tainted the evidence of this witness. It was apparent from Mr Wessels’ evidence that Mr Gibb was acting as some sort of go-between with CASA investigators. Mr Haslam also prepared the witness statement for Mr Wessels, albeit Mr Wessels said he communicated the substance of the statement over the phone. Mr Wessels said he only ever saw one draft of the statement that was emailed to him and he signed what had been written without further comment. That is surprising. One would have thought several drafts would be required when an investigator preparing a statement was trying to capture what he had been told by the witness over the phone. When Mr Ashton asked Mr Wessels about the accuracy of the statement, Mr Wessels’ answer (transcript at p 430) was not very encouraging:
Mr Ashton: Mr Wessels, is that what you – paragraph 16, is that what you told Mr Haslam?
Mr Wessels: The best way I can answer that is, everything that’s in that statement, paragraph start to finish, if that’s what’s written there, I’m hoping that Mark Haslam wrote it down as I said it.
It became apparent from the exchange following that answer (transcript at p 431) that Mr Wessels was basing his recollection on the contents of the statement, rather than on an independent recollection of what occurred that was faithfully recorded in the statement.
I am not inclined to give the evidence of Mr Wessels any weight, given the uncertainty and inconsistencies in his account in the witness box. I am satisfied it is appropriate to be especially wary of his evidence given my doubts over whether Mr Wessels’ recollection of events was influenced by others.
Mr Pantovic flatly denies that the flight in question took place in 2011. I have identified serious shortcomings in the evidence of all of CASA’s direct witnesses. That leaves only the evidence in relation to the damaged rotor blade.
Mr Pantovic said (exhibit 33 at [45]) the aircraft was regularly inspected by a licensed aircraft maintenance engineer (a LAME) at a firm called Rotor Works at Mareeba airport. Mr Stephen Johnston, the LAME, said in his evidence that he had conducted a 100-hour inspection on the aircraft in early December 2011 and provided a maintenance release: exhibit 41 at [7]. Mr Johnston recalled (at [8]) a telephone call from Mr Pantovic in January 2012 in which Mr Pantovic referred to some concerns about the handling of the aircraft. (Mr Pantovic described those concerns in his oral evidence: transcript at p 380.) When Mr Johnston examined the helicopter on 19 January 2012, he discovered a bulge on one of the rotor blades. Mr Johnston recalled the bulge “was approximately 2 inches in area and situated in the centre of the blade approximately 1/3 of the way down”: at [11]. Mr Johnston said he thought the blade was delaminating, by which he meant the blade skin was coming off. He said he was aware of reports that rotor blades of this kind had experienced spontaneous delamination because of a manufacturing defect. The blades were not immediately replaced; the damage was not sufficiently serious at that point, although the defect was reported to Robinson, the manufacturer. The LAME finally replaced the blades in June 2012 with a new set: exhibit 33 at [49].
Robinson denied the blades were spontaneously delaminating and said there was no manufacturing defect. CASA says the blade was damaged in the incident at the Mount Molloy hotel when the aircraft struck vegetation as it struggled to achieve flight. Mr Johnston said the evidence was not consistent with that conclusion. He said he examined both blades very carefully and remarked (exhibit 41 at [20]):
I did not observe any evidence of any other damage to the rotor blades. In particular, I did not observe any dents or other evidence of the rotor blades having struck an object in flight.
Mr Johnston expressly rejected the suggestion that the bulge he observed was consistent with “tree-strike”. He said (at [24]) there would be identical damage to both rotor blades if the spinning rotors had struck foliage. Mr Stallard, the CASA airworthiness inspector, agreed one would ordinarily expect to see damage to both blades in that event: transcript at p 129. Mr Lamb, CASA’s expert, was not convinced. He said it was certainly possible the damage from a tree strike might show up on only one blade: transcript at p 255. He explained (transcript at p 254-255) it was also plausible that a single bulge away from the edge of the rotor could occur as a result of a collision with foliage. He pointed out the rotor flapped as it rotated, so it had vertical as well as horizontal action. It follows the damage might not be the product of a slicing effect, which would have caused damage to the leading edge, but could be the product of a vertical action: transcript at pp 256-258. He also said damage to a single blade was common in cases where birds are struck in flight. When that occurred, the bird might be hit by one blade and rebound away: transcript at p 254.
Mr Lamb is a well-credentialed, experienced witness. He is passionate and knowledgeable about the subject matter. He was also obviously candid and fair-minded in his observations. He said the damage to the rotor was most likely caused when it impacted something in flight. He went on to explain (transcript at p 259):
So because it’s a single one in that location, in a courtroom I would probably say I would ask the aircraft, “Did you notice any birds fly past the aircraft?” That’s how I would approach it … That would be my first point of call, and then if the answer to that was no, then I would say, “Okay, where have you been?”
That evidence is potentially important because Mr Lamb testified a pilot might strike a bird (or perhaps a bat: this is north Queensland, after all) without being aware of the impact, or without even seeing the unfortunate creature: transcript at pp 259-260.
I am not satisfied the evidence establishes there was a manufacturing defect in the rotor blade. The manufacturer does not accept there was a problem and there is no technical evidence from an appropriately qualified expert that would justify finding there was a defect. So what is the best explanation for what happened in the circumstances – and does that explanation support CASA’s case against the applicant?
Mr Lamb’s evidence is decisive. I am satisfied he is the best-qualified of all the witnesses to explain the likely source of the damage to the rotor blade. He says the blade was most likely damaged when it impacted with a foreign body in the course of flight. That foreign body may have been foliage, which is consistent with CASA’s case; the fact the damage occurred on only one blade, and away from the leading edge of that blade, does not exclude the possibility of tree-strike. But Mr Lamb’s evidence clearly suggests the deformity might also have been the product of a bird strike which the pilot did not notice. Indeed, I took Mr Lamb’s evidence to mean that a bird strike was the most likely explanation for the damage observed on the blade.
At most, the damage to the rotor blade is consistent with CASA’s case, but it does not make that case more compelling. Given that conclusion, and given my observations of all the lay witnesses and the conduct of CASA’s investigators, I am not reasonably satisfied Mr Pantovic undertook a flight to the Mount Molloy hotel in late 2011 in the circumstances alleged by CASA.
The flight to the Mount Carbine hotel with Messrs Gibb, Sides and Donovan
While Mr Pantovic says – and I have found – he did not fly an overloaded helicopter to the Mount Molloy hotel as alleged, it is accepted he did fly an R-44 helicopter (a larger aircraft seating four people) to the Mount Carbine hotel with Messrs Gibb, Sides and Donovan. The question is whether Mr Pantovic consumed alcohol before and during the flight to and from the hotel, or while he was at the hotel.
The flight occurred sometime in 2012. It seems news of the flight may not have come to light until after the reviewable decision was made in mid-2014.
Mr Pantovic says he did not consume any alcohol before or during the flights or while he was at the hotel. He said he remained outside the hotel where he spoke to mustering clients: exhibit 34 at [19]-[20]. Mr Emmett, in his written submissions, argued it would be surprising if the applicant were drinking in those circumstances. Consuming alcohol before climbing into a helicopter in front of clients does not sound like a strategy calculated to inspire confidence (written submissions on behalf of the applicant at [41.g]; see also exhibit 34 at [20]). There is something to that. Mr Pantovic’s account was substantially corroborated by one of the passengers on the flight, Mr Leon Donovan. Mr Donovan was a friend of the applicant’s mother. He provided a statement in two parts (exhibits 39a and 39b) and gave telephone evidence at the hearing. Mr Donovan recalled the flight. He said it was a scenic journey over lakes and waterfalls and rivers. They saw a wild boar on top of a mountain and flew over a mine site. Mr Donovan recalled the applicant landed at the Mount Carbine hotel briefly so he could see some clients. They flew back to the applicant’s property shortly after; Mr Donovan said he saw some wild brumbies on the way. After they landed, he helped the applicant clean and cover the aircraft: exhibit 39a.
Importantly, Mr Donovan did not recall seeing the applicant consume any alcohol: exhibit 39b. He said he had never travelled in a helicopter before and he would not have got into the helicopter that day if he doubted the applicant was coherent and competent: exhibit 39a. I note Mr Sides (another passenger, whom I will discuss below) agreed Mr Donovan appeared apprehensive ahead of the flight: transcript at p 84. In cross-examination, Mr Donovan confirmed he did not see Mr Pantovic drinking before the flight although he also conceded he was not watching carefully to see whether anyone was consuming any beer. He said he had no recollection of carrying a cooler bag full of stubbies on the flight, and did not recall drinking anything himself. He said he did not notice anyone else drinking either, but added he was so excited by the flight that his attention was directed elsewhere: transcript at p 391. When they landed at the Mount Carbine hotel, he recalled walking into the pub and being shouted a light beer, but he occupied himself by looking at photographs on the wall. (Mr Donovan pointed out in his oral evidence that he could not afford to buy beer himself, let alone shout others, because he was on a pension.) He said he did not see Mr Pantovic take a drink at the hotel, and they left after a short while: transcript at pp 392-394.
Mr Gibb, who was a passenger on that trip, says Mr Pantovic was drinking during the flight, although Mr Gibb does not mention drinking before they took off. I have already explained I do not accept Mr Gibb’s evidence unless it is corroborated by other reliable evidence.
CASA called Mr Andrew Sides, who provided a statement (exhibit 11). He also gave evidence at the hearing. Mr Sides confirmed he has been friends with Mr Gibb since school days: exhibit 11 at [2]. Mr Sides recalled in his statement that he was contacted by Mr Gibb sometime in late 2012. Mr Gibb asked if Mr Sides wanted to fly to the Mount Carbine hotel for a few drinks. Mr Sides agreed and his wife drove him to the applicant’s home where Mr Gibb and the applicant were waiting. Mr Sides recalled he arrived around 10 am. Drinks were served in the applicant’s shed. Mr Sides said he saw Mr Pantovic consume at least two stubbies of XXXX Gold beer at this point: at [9]. (Mr Gibb does not mention this.) After refreshments, the party comprised of Mr Sides, Mr Gibb and another friend climbed into the helicopter with Mr Pantovic at the controls. Mr Sides recalled the other guest, whom he only knew as Leon, had a cooler filled with stubbies. Mr Sides recalled Leon (Mr Donovan) handed a stubby to everyone else, including Mr Pantovic, shortly after take-off. Mr Sides said he recalled Mr Pantovic consumed at least one stubby and possibly two as he flew the aircraft to the hotel: at [13].
Mr Sides recalled the party spending several hours at the hotel where he observed Mr Pantovic drinking at least five or six stubbies: [18]. Mr Sides suggested Mr Pantovic had the opportunity to consume even more beer than he had observed because the applicant left the group on a number of occasions to speak with other patrons: at [15]. When the party departed aboard the helicopter, Mr Sides recalled Leon handing each of the occupants of the aircraft a beer from the cooler which had been refilled. Mr Pantovic drank that one and consumed at least one other: [17]-[18]. Mr Sides estimated the applicant drank at least nine or ten stubbies of XXXX Gold from the time Mr Sides first saw the applicant to the time when the applicant landed the helicopter following the return journey: at [18].
When called to give telephone evidence, Mr Sides was less certain of the matters referred to in his statement. He confirmed he was a close friend of Mr Gibb (close enough to be a confidant (transcript at p 83)) and that he was aware of Mr Gibb’s anger towards Mr Pantovic. Mr Sides said he had not spoken to Mr Gibb about any evidence he would give although Mr Gibb had contacted him about the proceedings when Mr Gibb introduced Mr Haslam (transcript at p 82). Mr Gibb said in cross-examination that he had spoken with Mr Sides after Mr Sides had spoken with Mr Haslam. Mr Gibb wanted to know “what they asked him”: transcript at p 63. That inconsistency is troubling. Mr Ashton pointed out in his submissions that Mr Sides might not have appreciated the difference between discussing the evidence as opposed to the proceedings, but I do not think anything turns on that distinction. While Mr Sides insisted he was not giving evidence at the request of Mr Gibb, Mr Sides was evasive in cross-examination about the extent to which Mr Gibb might have assisted him with his story.
Mr Sides agreed in cross-examination that Mr Donovan appeared apprehensive ahead of the flight, and that he exhibited a quiet and reserved demeanour: transcript at p 84. That impression sits oddly with Mr Sides’ account in his statement of Mr Donovan’s burst of conviviality once they were airborne and he began to hand around stubbies. The impression volunteered in cross-examination does however match Mr Donovan’s own account of his attitude during and after the flight: Mr Donovan struck me as a man who was unlikely to be so presumptuous as to start serving beer on a helicopter flight.
There was also some confusion as to who sat where in the helicopter. Mr Sides said in cross-examination that he sat in the front on both legs of the journey (transcript at p 84-85); Mr Gibb and Mr Donovan both said Mr Gibb sat in the front seat: transcript at pp 61, 391. That evidence is important because Mr Sides said in cross-examination that he had a clear view of Mr Pantovic consuming a beer “because I was in the front with him”: transcript at p 85. Mr Sides also seemed much less certain in cross-examination about how much beer was consumed at the hotel. While he insisted he saw Mr Pantovic drink, he conceded the applicant was outside most of the time and when he did join them for a drink, it may only have been for one beer: transcript at p 85. That is a different and less damning story than the one he told in his statement.
If Mr Sides’ statement is accurate, Mr Pantovic is in serious trouble. A person who drank nine or 10 stubbies over a relatively short period was not fit to drive, let alone fly a helicopter. But the accounts of Mr Sides and Mr Donovan are directly inconsistent on some telling points – most obviously in relation to whether Mr Donovan was doling out the beer from a cooler throughout the flight. Whom should I believe?
The applicant says I must keep in mind the malevolent role played by Mr Gibb who was working hand in hand with over-enthusiastic CASA investigators. Mr Sides agreed he was a long-term friend of Mr Gibb (although Mr Donovan is hardly independent of Mr Pantovic). Mr Sides said he only became aware of an investigation into Mr Pantovic when he received a call from Mr Gibb on 13 August 2014: at [23]. He went on (at [24]):
During the same telephone conversation, I spoke to a person I now know to be Senior Investigator Mark Haslam from CASA who asked me a series of questions relating to the flight …
That statement tends to confirm Mr Gibb was playing an active role in the investigation, and was identifying and liaising with witnesses on CASA’s behalf. Given what I have already concluded about Mr Gibb’s role in this whole affair, evidence of his involvement with this witness is troubling. I note Mr Gibb said the two friends had discussed aspects of the evidence and what questions CASA investigators had asked, whereas Mr Sides denied discussing the evidence with Mr Gibb. That inconsistency is troubling, because it raises the possibility Mr Sides was downplaying his interaction with Mr Gibb.
Mr Donovan demonstrated a clear recollection of the flight but he did not notice Mr Pantovic drinking. That did not mean the applicant was not drinking, of course – just that Mr Donovan did not notice if it was occurring. He made it clear he was focused on the novelty of the flight, after all. But he was also apprehensive about his first ride in a helicopter, so it is more difficult to imagine him not noticing if the pilot was consuming beer. Ultimately, I prefer Mr Donovan’s evidence because he said he was not the custodian of the beer and he was not distributing it during the flight as Mr Sides alleged. I accept Mr Donovan’s evidence on this point because the allegation is inconsistent with the reserved and apprehensive demeanour that he claims to have exhibited on the day of the flight, and which was confirmed by Mr Sides himself. The allegation about Mr Donovan’s convivial role was a central feature of the evidence of Mr Sides. If I do not accept it because it is inherently unlikely, it is difficult to accept much of the rest of the evidence provided by Mt Sides. I have a greater sense of comfort in doing so in light of the other inconsistencies in the evidence of Mr Sides that I have identified.
Once I set the evidence of Mr Gibb to one side for reasons I have already explained, that leaves the evidence of Mr Pantovic. He says he did not consume alcohol. I have already explained his evidence in this regard makes sense given he was apparently meeting clients.
I am not persuaded the applicant was consuming alcohol before, between or during the flights to and from the Mount Carbine hotel with Messrs Gibb, Sides and Donovan.
The other flight to the Mount Carbine hotel with Mr Gibb and the Morris brothers
Mr Pantovic also flew the R-44 helicopter from Biboohra to the Mount Carbine hotel on 4 January 2012. On this occasion, he was accompanied by Mr Gibb and John and Glen Morris. In his statement (exhibit 34), Mr Pantovic said he did not consume any alcohol before he left. When he arrived at the hotel, he busied himself with a mustering client while his passengers went into the hotel for a drink. The applicant and his client spoke about future work. The applicant said he did not drink anything while he was on the ground. When he had finished, the party reassembled and the applicant took off. He said it was his intention to fly down the coast in a southerly direction before turning inland for Biboohra. But one of his passengers announced he needed to relieve himself. Mr Pantovic identified a spot on a flat near the mouth of a river and landed the aircraft. The passengers got out. Mr Pantovic said he thought it wise to leave the helicopter engine running. He said he “was concerned that if we had trouble restarting, we could be stranded and caught by an incoming tide”: exhibit 34 at [12]. What happened next was explained in his statement at [13]:
After we landed I locked the collective down and alighted. I spoke to Glen as he was standing near the helicopter and briefed him on what to do if the helicopter engine commenced to rev up. I said to him “if it revs up, put your hand on the collective (I pointed it out to him) and watch the cyclic doesn’t move from the position it is in, it must be always straight.” I also indicated the cyclic. As we were there I also relieved myself and walked back to the helicopter and had a cigarette; I admit that I left the engine operating.
Mr Pantovic admitted that behaviour was unacceptable. He should not have left the aircraft running while it was unattended, and he certainly should not have suggested to an inexperienced passenger that the passenger should intervene if something happened. While Mr Pantovic acknowledged he should not have left the aircraft while it was running, he appeared to suggest that leaving a passenger behind to monitor it made his transgression less of an issue: transcript at p 323. His explanation suggests a lack of insight. That said, I acknowledge Mr Pantovic’s evidence that he applied a locking device to the collective. The collective looks like the handbrake in a car. It is the mechanism which allows the helicopter to climb or descend. A collective lock is designed to prevent “collective creep” which occurs when the collective gradually raises to the point where the aircraft begins to take-off spontaneously. Mr Lamb discussed the adequacy of these mechanisms in the course of his evidence but he pointed out the flight manual for the Robinson helicopter said the aircraft should not be left unattended in any event: transcript at p 282.
It gets worse. After the aircraft took off, Mr Pantovic admitted one of the passengers passed him a stubby of beer. The applicant consumed the beverage as they flew home. During that flight, he accepts he also flew low over the water. Flying low over water is very dangerous, even when the pilot has not been drinking (or does not have a beer in his hand, or in his lap). Mr Lamb said the aircraft was flying as little as 10-15 feet above the surface of the ocean. He was able to make that estimate because the whole sequence of events was captured on a video shot by one of the passengers, none of whom were wearing life jackets: exhibit 2. While Mr Pantovic was reluctant to concede he was flying that low, Mr Lamb’s careful analysis of the video persuaded me the applicant was flying lower and for longer (and perhaps faster) than he admitted. Mr Lamb pointed out there was a danger of a rogue wave when flying at that height, and there would be no margin for error if there was a mechanical malfunction. (The applicant should have been conscious of the real possibility of a mechanical malfunction when low flying given he explained he did not want to shut down the engine when on the ground in case of a mechanical problem that would leave the party stranded. If he was worried about a mechanical malfunction in those circumstances, he should have been concerned about the same eventuality where the lives of his passengers were at risk: respondent’s submissions at pp 20-21.) Mr Lamb also said it was well-established that flying over water was especially dangerous because of limits to depth perception when there were no other points of reference: exhibit 22 at [23]. The applicant initially argued his experience of low flying whilst undertaking mustering work conferred an advantage on him when flying over the water, but he conceded that was not so in cross-examination: transcript at p 319.
Identifying the contraventions
I have already outlined the legislative scheme under which Mr Pantovic operates. I have also explained I am not satisfied Mr Pantovic undertook the flight to the Mount Molloy hotel or that he consumed alcohol on the flight to the Mount Carbine hotel with Messrs Gibb, Sides and Donovan as alleged by CASA. It is therefore unnecessary for me to consider whether any breaches of the rules occurred in connection with those allegations. I have also made no findings in relation to other incidents alleged in the statements of Mr Gibb and Ms Andersen that were not corroborated by other witnesses.
I turn then to the breaches which occurred on the other trip to Mount Carbine with Mr Gibb and the Morris brothers. CASA says – and I accept – the video footage and the applicant’s admissions confirm the following breaches occurred while he was pilot in command:
·CAR 225(1): failing to ensure a pilot remained at the controls of the aircraft while the engine was running;
·CAR 157(1)(b): flying the aircraft over water at a height lower than 500 feet; and
·CAO 20.11: failing to ensure each of his passengers wore life jackets while flying over water.
CASA also said the applicant breached CAR 256(3), which prohibits a member of the operating crew of an aircraft from consuming any alcoholic liquor in the period of 8 hours immediately preceding the departure of the aircraft. But I did not find that Mr Pantovic consumed alcohol before the flight – I found he consumed a beer during the flight. Consuming alcoholic liquor during a flight while acting as a member of the aircrew is a contravention of CAR 256(4). I am satisfied that breach has been made out.
I note a person convicted of any of these contraventions is liable to the equivalent of 50 penalty units.[1] While these proceedings do not result in convictions, the penalty that is potentially imposed in respect of a contravention tells me something of the gravity of the conduct. A penalty unit is currently equal to $180, which means the offence attracts a maximum fine of around $9,000. That is a reasonably significant maximum fine.
[1] A penalty unit is defined in s 4AA of the Crimes Act 1914 (Cth).
CASA said Mr Pantovic also breached s 20A of the Act. Section 20A prohibits the reckless operation of an aircraft that could endanger the life of a person, or their property. I am satisfied Mr Pantovic was reckless in the operation of the aircraft when he flew at high speed at such a low level over water while consuming alcohol, and without requiring his passengers to wear life jackets. In doing so, he needlessly endangered the lives of his passengers. That contravention is also made out.
The correct or preferable decision
Having established Mr Pantovic contravened his duties, I am satisfied it is appropriate to take regulatory action. I must now decide what form that action should take.
I begin by acknowledging s 9A of the Act requires that I regard the safety of air navigation as the most important consideration.
I will next deal with the applicant’s approval to act as Chief Pilot of Panmer. CASA says his performance as Chief Pilot is no longer of an acceptable standard. I agree. A chief pilot occupies a leadership position within the organisation – even a small organisation like Panmer. He has no credibility in the discharge of that role if he becomes involved in contraventions like those I have identified. It is one thing for an individual to experience errors of judgment of this kind; such poor judgment is especially dangerous where the safety and culture of the whole organisation is at stake. Mr Pantovic cannot continue in that role.
I am satisfied the applicant’s approval to act as Chief Pilot should be cancelled pursuant to subclause 6.1 of Appendix 1 of CAO 82.0. CASA’s decision to that effect is affirmed. It shall take effect within 28 days of the date of these reasons.
What of the applicant’s flight crew licences? CASA says they should be cancelled pursuant to CAR 269(1). The power to cancel (or vary, or suspend) is engaged under at least three sub-clauses of CAR 269(1), namely:
·CAR 269(1)(a), which refers to the holder of the authorisation breaching the Act or the regulations. I have already identified a series of breaches that occurred in connection with the flight over water on the way back from the Mt Carbine hotel.
·CAR 269(1)(c), which refers to the holder of the authorisation failing in his “duty with respect to any matter affecting the safe navigation or operation of an aircraft”. I have already referred to breaches of that duty which occurred while he was pilot-in-command.
·CAR 269(1)(d), which says action can be taken when a person is no longer “a fit and proper person to have the responsibilities and exercise and perform the functions and duties of a holder of such an authorisation”.
The expression “fit and proper person” is not defined. I discussed the expression in my reasons in Jones and Civil Aviation Safety Authority [2014] AATA 820. In that case, I concluded the applicant had demonstrated remarkably poor judgment in the operation of a helicopter, while accepting he was a skilful pilot. Good pilots have good judgment, although I accept even good pilots occasionally make errors of judgment. Errors of judgment are a problem where they suggest the person’s judgment is flawed. A person with bad judgment (as opposed to a person who has merely made a mistake) is not fit to hold a pilot’s licence, no matter how skilful he or she may be.
Flying low over water at high speed while consuming alcohol demonstrates remarkably bad judgment, as opposed to a series of individual errors in judgment. (Leaving the helicopter unattended while the engine was running in the mistaken belief that the collective lock was an adequate safeguard was an error of judgment, as was failing to insist that passengers wore life jackets. Either of these transgressions might not, in isolation, reflect on the applicant’s fitness.) It follows I accept the applicant is not a fit and proper person to hold the flight crew licences. But what action should be taken?
I decided Mr Jones’s judgment was not irredeemably flawed in Jones and Civil Aviation Safety Authority. I accepted he had the intelligence and insight to appreciate his errors and learn from them. On that basis, I decided a more lenient regulatory response was justified. The position of Mr Jones can be contrasted with that of the applicant in Quadrio and Civil Aviation Safety Authority [2011] AATA 709. In that case, the applicant actively ignored the rules in order to entertain his passengers. The Tribunal took a tougher line. Mr Pantovic’s errors were in at least one respect more serious than those of Mr Jones: I concluded Mr Jones did not knowingly flout the rules, whereas Mr Pantovic knew he was not permitted to consume alcohol while flying, for example. Having said that, Mr Pantovic’s judgment does not strike me as being as flawed as that of Mr Quadrio, who apparently regarded the regulatory action against him as a form of persecution.
I also concluded in Jones and Civil Aviation Safety Authority that it was appropriate to take into account the need for specific and general deterrence. In all the circumstances, I accepted Mr Jones did not require much in the way of specific deterrence: I was satisfied after observing him give evidence over a lengthy period during the hearing that he had learned his lesson. Mr Pantovic spent less time in the witness box, so it is harder for me to gauge the depth of his contrition and the genuineness of his insight. But I must also acknowledge he endured – and paid for the costs associated with – a lengthy hearing in which a series of allegations were made against him and ultimately disproved. He has already borne a heavy financial burden as a consequence of what happened.
General deterrence was an important consideration in Jones and Civil Aviation Safety Authority. Mr Jones was a prominent member of the aviation community, and his errors and transgressions were played out on national television. Mr Pantovic does not have anything like the same profile as Mr Jones, which counts in his favour. Even so, it is necessary to send a clear message to the aviation community that this sort of conduct is unacceptable.
I do not think it is necessary or appropriate to cancel Mr Pantovic’s flight crew licences. The decision to cancel is therefore set aside. Mr Pantovic has offered (in exhibit 4) to enter into enforceable undertakings to submit to a number of obligations and limits if he is allowed to continue flying, but I fear that will not send the right message to the wider aviation community. I am inclined to suspend his licence for a period of time. A period of suspension is required to confirm this sort of “cowboy” behaviour will not be tolerated. In all the circumstances, I think the correct or preferable decision is to vary the decision under review and suspend the applicant’s flight crew licences for a period of six months – but I am minded to order that the suspension will itself be suspended after one month if the applicant enters into enforceable undertakings pursuant to s 30DK of the Act along the following lines:
i.The applicant undergo urine testing, at the beginning of each month for both drugs and alcohol and provide to the CASA Aviation Medicine branch the test results as prepared by an accredited laboratory in accordance with secure sample collection protocols.
ii.The applicant restricts his flying to commercial activities and will not conduct any other flying activities as pilot in command, with the exception of delivering a helicopter for any maintenance and positioning a helicopter for commercial activity.
iii.The applicant provide to the CASA Cairns Regional office at the end of each week, a complete listing of all flights conducted over the previous week, including details as to the purpose of the flight, duration and destination, the Air Operator’s Certificate under which the flight was conducted, and the identity of any persons carried as a passenger.
iv.The applicant will, when due for his Bi Annual flight test conduct that test with a CASA officer.
If the applicant complies with the enforceable undertakings, the decision to suspend the applicant’s flight crew licences would be discharged on the date the undertaking comes to an end.
I invite the parties to make written submissions as to the proper form of orders that would give effect to this aspect of my reasons. Subject to those submissions, I anticipate the decision to suspend the applicant’s flight crew licences would take effect within 28 days of these reasons.
I also invite the parties to make written submissions as to the form of any orders under s 35(2) of the Administrative Appeals Tribunal Act 1975 (Cth). For now, I am satisfied that paragraphs [16]-[22] of these reasons should not be published to any person apart from the parties and their legal representatives by reasons of the confidential nature of the evidence referred to therein.
I certify that the preceding 122 (one hundred and twenty-two) paragraphs are a true copy of the reasons for the decision herein of Senior Member Bernard J McCabe ..............................[Sgd]..........................................
Associate
Dated 18 December 2015
Dates of hearing 3-6 November 2014, 19 March 2015 Date final submissions received 20 July 2015 Counsel for the Applicant Mr J Emmett Solicitors for the Applicant McMahon Broadhurst Glynn Lawyers Counsel for the Respondent Mr R S Ashton Solicitors for the Respondent Civil Aviation Safety Authority, Legal Services Division
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