Power and Civil Aviation Safety Authority
[2007] AATA 1328
•17 May 2007
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2007] AATA 1328
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2006/1068
GENERAL ADMINISTRATIVE DIVISION ) Re Kent Stanley POWER Applicant
And
Civil Aviation Safety Authority
Respondent
DECISION
Tribunal Professor GD Walker, Deputy President
Dr M Thorpe, Member
Date 17 May 2007
PlaceSydney
Decision The decision under review is affirmed. ……………[sgd]…………............. ……………………………
Professor GD Walker Dr M Thorpe
Deputy President Member
CATCHWORDS
CIVIL AVIATION SAFETY AUTHORITY – cancellation of applicant’s private pilot’s license- applicant is medically classified as deaf – applicant has a private pilot’s license issued by United States Federal Aviation Authority – issued with a restricted private pilot’s license within Australia – issued with time-limited certificates of validation – record of serial breaches of conditions of license – one contravention found to be proved in court- applicant failed in his duty of safe navigation and operation – applicant is not a fit and proper person to hold a private pilot’s license within Australia – decision affirmed.
RELEVANT ACT/S
Civil Aviation Regulations: 269(1),269(1A), 167
Civil Aviation Act 1988: s 20AB(1)
CITATIONS
Re Repacholi and Civil Aviation Safety Authority [2003] AATA 573
Re Griffiths and Civil Aviation Safety Authority (1994) 34 ALD 554
Re Snook and Civil Aviation Safety Authority [2003] AATA 285
Re Ellery and Civil Aviation Safety Authority [1999] AATA 774
Re Griffiths and Civil Aviation Authority Q93/484 AAT number 8947A, 31 May 1994
Re McBain v Civil Aviation Safety Authority [2003] FMCA 83
Re Mulligan and Civil Aviation Safety Authority [2006] AATA 652
REASONS FOR DECISION
17 May 2007 Professor GD Walker, Deputy President Summary
1. On 15 August 2006, the respondent decided to cancel the applicant’s private pilot’s (aeroplane) license (PPL) pursuant to Civil Aviation Regulation (CAR) 269(1).
2. On 21 August 2006, the applicant applied to the tribunal for a review of that decision.
Issues
3. The issue in this application is whether the applicant’s PPL No 140729 should be cancelled by reason of CAR 269(1)(c) and (d), on the grounds that the applicant failed in his duty with respect to any matter affecting the safe navigation or operation of an aircraft or that he is not a fit and proper to have the responsibilities and exercise and perform the functions and duties of a holder of a PPL, or both.
Chronology and basic facts
4. The applicant Mr Kent Power was born on 12 September 1938 and has been deaf-mute since birth. He is medically classified as deaf.
5. In 1975, the United States Federal Aviation Authority (FAA) granted him private pilot license number 56890796, which was subject to the condition that he could only operate as a pilot where radio communications were not required. The applicant maintains that his FAA license meant that he could fly anywhere in the United States if he had air traffic control clearance, but there is no evidence from the FAA to corroborate Mr Power’s interpretation of the condition.
6. On 18 May 1978, CASA’s predecessor issued to Mr Power a restricted private pilot license (RPPL) that among other things confined him to flying an aircraft within:
(a)Five nautical miles of the reference point of the aerodrome from which he departed on a particular flight, or
(b)Within the confines of the flying training area associated with the aerodrome from which he departed on a particular flight.
7. His RPPL was also subject to an additional condition, “not valid for flying or operating aircraft where radio communication is mandatory”.
8. Mr Power lived in the United States for a total of about 17 years and flew extensively in that country on his FAA license. He now has 1,478 total hours as a pilot, which is quite a high figure for a private pilot.
9. Between 1998 and 2001, the respondent issued to Mr Power several separate time-limited Certificates of Validation (CoV) allowing him to fly in Australia outside the area restrictions specified in his RPPL. For example, he was issued with a CoV on 12 July 2001, valid from 27 July to 29 July 2001 to enable him to participate in the International Deaf Pilots’ Association Fly-In.
10. The last CoV was issued on 21 November 2001 to enable him to participate in a round-Australia safari being conducted by the International Deaf Pilots’ Association (DPA). The respondent validated his FAA license to enable him to act as a member of the flight crew of an Australian-registered aircraft. The restrictions on his RPPL would have precluded him from participating in the safari. The CoV was effective until the FAA license expired or until 20 February 2002, whichever first occurred. The respondent and Airservices Australia (Airservices) briefed the applicant in relation to licensing and operational issues relating to the limitation on his license and the CoV at the fly-in and subsequently.
11. Between 12 and 14 July 2002, five months after the CoV had expired, the applicant undertook the following flights in his Cessna 210 aircraft VH-IDN (Cessna 210):
§12 June 2002: Bridport, Tasmania, to Hoxton Park, New South Wales – 4.3 hours;
§12 June 2002: Hoxton Park to Bankstown, New South Wales – 0.2 hours;
§16 June 2002: Bankstown to Warnervale – 1.8 hours;
§13 July 2002: Warnervale to Murwillumbah – 2.5 hours; and
§14 July 2002: Murwillumbah to Warnervale – 2.3 hours.
Those flights infringed the condition on his RPPL and constituted a breach of s 20AB(1) of the Civil Aviation Act 1988 (CAA).
12. Further, the Cessna 210 has a constant speed propeller and retractable undercarriage. At the time of the flights, Mr Power did not hold license endorsements for either of those design features, thereby breaching s 20AB(1) of the CAA.
13. On 12 September 2002, the respondent wrote to inform the applicant (T p100) that no further CoVs would be issued to him because of the above breaches. In his response dated 17 October 2002 (T p105), the applicant wrote that he agreed that his action in making the offending flights “whilst my certificate of validation had expired, was thoughtless and I accept responsibility for this transgression” (T p105).
14. On 26 May 2003, the respondent issued the applicant with PPL No 140729, carrying constant speed and retractable endorsements. It was subject, however, to the specific condition: “license is valid for class G airspace (excluding MBZ [mandatory broadcast zones]) and Bankstown and Camden GAAP [general aviation aerodrome procedures] control zones (with prior approval)”.
15. Before issuing the PPL, CASA required Mr Power to undertake training with a flying school on GAAP procedures at Bankstown and Camden airports. Mr Power failed a flight test on those procedures, but transferred to another flying school, Curtis Aviation, where he was successful in passing the test. On 22 May 2003, the Curtis chief flying instructor endorsed the applicant’s pilot logbook with the notation that Mr Power had received training in the aeronautical knowledge needed to fly safely in the Bankstown and Camden GAAP control zones.
16. Despite the condition on his PPL, in or about December 2003, the applicant made a flight to Moorabbin, Victoria, another GAAP airport. Subsequently, on 6 April 2004, the applicant applied to the respondent for his license condition to be amended to allow operations into four other GAAP airfields, Archerfield, Queensland, Moorabbin, Parafield, South Australia, and Jandakot, Western Australia.
17. Following the Moorabbin incident, the respondent wrote to the applicant on 19 April 2004 (T pp107-108) confirming that the flight infringed the PPL condition and constituted an offence. The letter also once again explained the effect of the restriction in detail.
18. Some 18 months later, on 13 September 2005, the applicant flew his Cessna 210 from Birdsville, Queensland to Bond Springs, Northern Territory. He had known before departing that there would be no fuel available to him at Bond Springs, but nevertheless, at one point during the hearing, said (through the sign language interpreter) that he thought he could obtain fuel there. When none was available, he rode the folding bicycle that he kept in the aeroplane to Alice Springs, a distance of 22 kilometres. At Alice Springs he rented a utility truck and, as he wrote on 30 September 2005, “drove to the Aero Club near runway [sic] to ask for help to discover if I would be allowed to land by light signal from Tower” (T p41). In that letter he mentions nothing about attempting to buy fuel at Alice Springs airport, but at the hearing asserted in his written statement (Exhibit A2) and orally that he had driven to the aero club to organise a drum of fuel. He referred to some discussion with a refueller who refused to pump avgas into a plastic container, but rather than purchase a steel drum, he obtained the assistance of another pilot license holder, Mr George (Jack) Phillips to obtain a clearance to land at Alice Springs. He did not tell Mr Phillips or the Alice Springs air traffic control (ATC) tower of the conditions on his license. Nor did he inform Mr Phillips that he needed fuel, but instead said he needed to go to Aboriginal Maintenance Services, giving Mr Phillips the false impression that his aeroplane needed maintenance.
19. Mr Power arranged a clearance to enable him to land at Alice Springs. Mr Power did not accept Mr Phillips’s offer to come with Mr Power to act as his radio operator on the flight into Alice Springs, telling Mr Phillips he could not afford to pay him the fee of $35 to $40 (based on $80 an hour for the time actually in the aircraft). Mr Power may have thought that the actual fee would be $80.
20. Mr Phillips telephoned the tower a number of times to organise the clearance and wrote the clearance details ATC gave him on a piece of paper which he passed on to Mr Power, with a copy of a diagram of Alice Springs airport.
21. The clearance was available only between 1615 and 1630 hours local time. When over Alice Springs township, he was to switch his landing light on, set his transponder on code 3000 and give three open microphone transmissions at 2-second intervals on 118.3 mHz. Clearance to land was to be given by a green light signal from the tower once they had identified him.
22. Alice Springs tower cleared the applicant to land with the green light signal. When he was on short base, the tower flashed a “do not land” red signal when the controller observed that the Cessna’s landing gear was not extended. Mr Power continued his approach, did not respond to the continued red light signal and made a gear-up landing, causing extensive damage to the underside of the aircraft.
23. As a result of his aircraft remaining on the runway, the airport was closed for an hour, which meant delaying the departure of a Qantas Boeing 737 and forcing a Qantas Boeing 717 to divert from Alice Springs to Ayers Rock.
24. On 23 September 2005, CASA investigator Mr Mark Haslam wrote to inform the applicant that CASA was considering issuing infringement notices against him over the Alice Springs incident (T pp109-110).
25. Mr Power replied on 30 September 2005 (T pp111-112) stating among other things that “I am fully aware that I am unable to land at Alice Springs Airport”, and that he knew fuel would not be available at Bond Springs. In a further letter dated 12 December 2005 (T p115), the applicant declined to interviewed by Mr Haslam, and went on to assert that:
…
The wording of my pilot’s license condition does not prohibit my entry into controlled airspace after I have obtained an approval to enter that airspace. Your allegation about not obeying a red light from the tower assumes I saw [it]. I did not. Once given the green light from the tower, I proceeded to the conclusion of my flight. Why would I expect a red light after receipt of a green one and therefore be diverting my attention from landing the aircraft.
…
26. The respondent sent to the applicant a show cause notice of proposed action to vary, suspend or cancel his PPL on 25 May 2006 (T pp18-25). The notice set out the grounds, being the incidents described above, and allowed 28 days for a response. It also invited the applicant to participate in an optional show cause conference in relation to the notice.
27. The applicant responded by letter dated 26 June 2006 (T pp46-50) and declined the invitation to take part in a conference.
28. The notice of cancellation, which is the reviewable decision in this case, was dated 15 August 2006 (T pp84-94). The main grounds relied on were the breaches of the license condition that occurred in the June-July 2002 flights, the Moorabbin landing and the Alice Springs incident, and the failure to comply with a red light signal at Alice Springs.
29. The respondent issued two infringement notices in relation to the Alice Springs incident. One related to contravention of the conditions in his license and medical certificate constituted by entering the Alice Springs control zone within class D airspace. On 22 September 2006, the Commonwealth Director of Public Prosecutions wrote to the applicant stating that while in the opinion of the office there was sufficient evidence for a prosecution, it had been decided not to prosecute the applicant on this occasion for those alleged breaches (Exhibit A7). The second alleged a breach of CAR 167 by failing to keep a watch for instructions by visual signals. The applicant initially pleaded not guilty to that charge but subsequently changed his plea to guilty. The offence was found to be proved but the applicant was discharged without conviction on 23 March 2007.
30. In the proceedings before this tribunal, the respondent in its statement of facts and contentions (Exhibit R2) relied on the four incidents, together with two ESIRs (electronic safety incident reports). The first related to Mr Power’s violation of controlled airspace at Coolangatta airport on 2 September 2004, when VH-IDN passed four miles south of Archerfield aerodrome without making a mandatory radio broadcast. The other related to an incident on 23 September 2004. Mr Power had notified Bankstown control tower by fax that he was arriving at 2300 hours and that the aircraft was being flown by a hearing-impaired pilot. He was cleared for runway 11L, but because of an increasing downwind component, the runway was changed to 29 as Mr Power’s Cessna 210 arrived overhead. Mr Power made a left circuit and landed on 11L. Another aircraft then on final to 29R had to be sent around. Another aircraft on short final to 29L could not be told to go around because of an over-transmission by another aircraft at the 11L holding point asking how he should proceed to 29. That immediate cause was not, of course, Mr Power’s fault as presumably the pilot at the holding point should have been using the surface movement frequency in any event. But the respondent took the position that the incident showed that even the prior approval condition on the PPL was not totally safe.
31. Those episodes, the respondent submitted, justified license cancellation under CAR 269(1)(c) and (d). The applicant did not deny that the incidents occurred but submitted, as will be explained below, that only some of them could be taken into account and that the others did not warrant cancellation action.
The applicant’s statement (Exhibit A2)
32. In his statement (Exhibit A2) and at the hearing, the applicant gave further details about his flying history. The PPL that he obtained in the United States in 1975 was what would be termed in Australia an unrestricted license. Mr Power said that the FAA does not issue a restricted license whereby a pilot is confined to the local area until navigation training is completed. The US license is issued only after the student pilot is tested and certified as being competent to fly anywhere. His logbook extracts (Exhibit A2, attachment A) show that in the United States he flew mainly Cessna aircraft, including the Cessna 210, which has a constant speed propeller and retractable landing gear. Presumably he was checked out and had his logbook endorsed for those design features, but those endorsements do not appear on the extracts tendered.
33. In 1976 Mr Power returned to Australia to be with his family and in 1978 applied for an Australian pilot’s license. “My license from the States was not recognised in that I was only issued with a restricted private pilot’s license. No reason was given to me as to why I was so restricted. Also, notwithstanding my log book showed I was flying a 210, I was not issued with endorsements for the constant speed and retractable undercarriage”. The applicant flew under the Australian license until he returned to the United States to live in 1989. There he flew into many airports that were primary control zones and class D airspace, notwithstanding that his FAA license was endorsed “Not valid for flights requiring the use of radio”. He tendered some charts of the Los Angeles and Phoenix areas showing the airports into which he had flown in those regions. They included Santa Monica, Zamperini, Long Beach and Brackett, all of which were very busy airports. He would fax the tower in each case to apply for a clearance, which if granted would specify a time for him to join the circuit and indicated that he should watch for a green or red light. On occasion he would also use a mobile telephone to SMS the tower from 20 nautical miles out, and wait until he was 10 miles out to obtain a clearance that was conveyed back to him by SMS. This never caused any problems, he said.
34. While flying in the United States he became the first deaf pilot to fly from the contiguous states to Alaska.
35. After he returned to Australia in 2001, CASA issued to him a CoV based on his FAA license. He flew on that validation as a member of the DPA, which was conducting a round Australia safari. Mr Power’s statement explained what happened next:
…
As mentioned, I then held the full State’s [sic] license which expired on 20 February 2002. When my States license expired, my authorisation also lapsed. However, my Australian restricted license was still valid. I forgot that my certificate of validation would lapse when the USA license expired and I flew a number of flights technically in breach of the Australian Regulations, which I had no intention of doing (Exhibit A2, para 6).
36. That does not appear to be correct. There was no evidence to explain why his US license would have expired on 20 February 2002, such licenses normally being perpetual. On the other hand, the CoV is expressed as being in force until “the end of 20 February 2002”, or when the US license ceases to be in force, whichever first occurred (T p30). It thus appears that it was the CoV that expired on 20 February 2002, not the US license. That the expiration date was clearly shown on the CoV makes the applicant’s flights five months after it expired less excusable.
37. The Australian unrestricted PPL that CASA issued to the applicant on 26 May 2003 bore the two endorsements needed to fly a 210. In addition, Mr Power stated,
…
My license had a condition the words of which were drafted by CASA instead of simply using the words of my State’s license, and with no input from me, namely [here the condition was reproduced]. This condition was inconsistent with the endorsement on my State’s license (Exhibit A2, para 7).
…
38. In that passage we start to receive indications of the applicant’s attitude to Australian civil aviation law. He appears to criticise CASA for drafting the condition imposed on his PPL. He also plainly thinks CASA should have sought his approval before doing so. Finally, he wrongly states that the condition was “inconsistent” with his US endorsement. The conditions were certainly different, but there is nothing “inconsistent” in having one rule applying within one country, and a different one in a different country. The applicant appears to be criticising CASA for making up its own mind about a restriction to be imposed in light of Australian conditions and practices.
Mr Hamilton’s opinion
39. Mr William JR Hamilton, an aviation consultant, gave evidence in support, inter alia, of Mr Power’s qualifications and competency (Exhibit A4). Mr Hamilton is a highly experienced pilot with over 22,000 flying hours who retired from Qantas in 2001, having served as a Boeing 747 captain. He served a term as a check and training captain on Qantas Boeing 767 aircraft as well as being a flying school chief flying instructor. He is a past president and technical director of the Aircraft Owners and Pilots Association of Australia, a lobby group, and has held office in numerous aviation-related associations and as a governmental appointee on a number of committees and other bodies established to generate and consider air regulation reform proposals.
40. In Mr Hamilton’s view, the restriction placed on the applicant’s license did not have a valid basis in air safety, and he should not have had any greater restrictions on an Australian license than the restrictions on his original FAA license. His FAA license should have enabled him to obtain an Australian PPL of the same category. In Mr Hamilton’s view, CASA discriminated against the applicant when it refused to give him any more CoVs because of his past breaches of the regulations (T p31).
41. Mr Hamilton conceded that he had in the past strongly criticised CASA but said that in recent years it had changed for the better and was now taking a broader view of its functions. In the present case, however, CASA was still following the earlier narrow approach.
42. In his view the applicant was a competent and experienced pilot. The condition on his PPL was unclear and should not have been worded in that way. A US-trained pilot might have interpreted the condition differently and he could understand how the misunderstandings had occurred. Mr Power might have thought that the references to Bankstown and Camden simply recorded where he had trained. The GAAP classification is purely Australian and does not exist in the United States. It appeared that Mr Power could not distinguish between GAAP and class D airspace. Mr Hamilton conceded, however, that he would not himself have interpreted the condition in that way, because he had broader experience.
The Alice Springs incident – 13 September 2005
43. Much of the evidence at the hearing related to the Alice Springs episode. In his statement Mr Power said he deeply regretted it and it had cost him a lot of money. At the time he was undertaking a round-Australia flight with his wife. He had no intention of landing at Alice Springs without obtaining a “no radio” movement clearance. Instead, he planned to land outside the control zone and Bond Springs. Upon doing so, he discovered that there were even fewer facilities at Bond Springs than he had expected. He assembled his folding bicycle and rode to Alice Springs to organise some fuel, leaving his wife with the aeroplane. At Alice Springs he rented a utility truck and drove to the aero club to organise a fuel drum:
…
There I was assisted by George Phillips to fly into Alice rather than take fuel out to the aircraft and fuel up from a drum. It was not my plan to fly in, it was suggested by the aero club. They also offered to give me a voice pilot, but I in retrospect, stupidly at the time declined, because they wanted $80.00. If I had thought I could fly directly to Alice, I would have attempted to obtain the “no radio” clearance from my departure point that day, Birdsville” (Exhibit A2, para 11).
…
44. He received a clearance (T p113).
45. On arriving in the Alice Springs circuit, he received the green light from the tower and proceeded to the touch down point on the runway. He then relates what happened next, but immediately attempts to rationalise his behaviour:
…
I suspect that because I had ridden the 22 kilometres into Alice in the heat, I was dehydrated. I forgot to extend the wheels to my plane and landed with the wheels up. I don’t mean to be disrespectful of CASA, however, if my flight into Alice was an unacceptable risk, why was it suggested by the aero club and why was I given a clearance by the body that controls that airspace?(Exhibit A2, para 12)
…
46. Some points about Mr Power’s evidence so far should be noted:
· According to Mr Jack Phillips of the Alice Springs aero club, it was Mr Power who asked him for assistance to obtain a clearance into Alice Springs, giving the impression that he needed to have some maintenance work performed (T p71) by Aboriginal Maintenance Services. At the hearing Mr Power reiterated that the flight was Mr Phillips’s idea, but in re-examination he conceded, on the other hand, that it was his own idea.
· Mr Power did not inform either Mr Phillips or Alice Springs tower of the restriction on his license. As the Alice Springs tower manager, Mr Michael Davy, pointed out, it is the pilot’s responsibility to advise ATC of any CASA restrictions on his or her license (T p78). At the hearing Mr Davy made it clear that if he had known of the condition, the applicant would not have been given a clearance. ATC has to assume that the pilot is rated to fly in accordance with the clearance sought.
· In his statement Mr Power mentions his attempts to organise a fuel drum at Alice Springs airport but gives no details on whom he spoke to or which fuellers, if any, he approached. He said nothing to Mr Phillips about fuel, but indicated that he needed maintenance at Aboriginal Maintenance Services, and Mr Phillips drew a sketch map that he gave to Mr Power showing how he could taxy to the Aboriginal Maintenance Services base. No fuel was available at that facility.
· There is no evidence from either of the two Alice Springs airport refuellers about being asked about the possible purchase of a drum. At the hearing Mr Power said he could not recall the name of the man he spoke to but thought that he had refused to allow him to fill a plastic container. Where the plastic container might have come from is unclear. Later in re-examination he said he had not spoken to either of the refuellers but had instead faxed them (probably referring to his earlier enquiries). He denied that he had rented a utility in order to buy fuel at Alice Springs and said he could not recall whether he was given the opportunity to purchase a drum. When then asked if he actually wanted to buy a drum of fuel, he answered “No”.
47. Another aspect of the incident related to his original intentions as regards landing at that airport. In his statement he wrote, “I had no intention of landing at Alice without obtaining a clearance for a “no radio” movement (Exhibit A2, para 11). The implication, therefore, is that he intended all along to obtain a clearance to land there, in breach of his license condition. At the hearing he maintained the position that he had believed he could obtain a clearance to land at Alice Springs. Asked why, in that case, he did not plan to fly direct from Birdsville to Alice Springs, he prevaricated at length. The question had to be put to him several times. At first he said it was because Alice Springs had radio, then he said it was because there had to be a one-hour block of time available for his arrival, and finally because he preferred to arrange for the clearance through face-to-face communication in the aero club, but there was no aero club at Birdsville. The fact that there was no-one for him to communicate directly with at Birdsville was what stopped him from seeking to fly direct to Alice Springs. The clear inference is that from the outset, the applicant intended to land at Alice Springs.
48. On behalf of the applicant, Mr McKeown submitted that the applicant had made a safe flight and had complied with his clearance. An operation is not, however, completed until aeroplane is parked and the engine and electrics are shut down. A flight that ends with a twisted aeroplane blocking the active runway and causing airline delays and diversions cannot be regarded as safe. Further, it does not appear that the applicant complied with the clearance. Air traffic controller David Goodes, who was on duty in the tower at the time, said at the hearing that it required Mr Power to key his microphone three times when over Alice Springs town, but no such signal was noted in the tower and Mr Goodes did not think the transmission had taken place. When Mr Goodes saw that the aircraft had reached late left base with the landing gear still retracted, he gave a red light signal from that point continually through to the moment of impact with the runway. The light was not shining towards the pilot’s back.
49. Mr McKeown also contended that the fact that Mr Power had hired a utility rather than a sedan showed that he was intending to buy a drum of fuel at Alice Springs airport. But Mr Power did not so claim, and there could have been other reasons. The utility might have been the only vehicle available, or the best. Or it might have been cheaper than a sedan – and the applicant’s evidence shows that he was budget-conscious at the time. For two people, Mr Power did not need a sedan.
50. We conclude that Mr Power’s original intention was to fly from Birdsville to Bond Springs to refuel because he knew his license condition precluded him from landing at Alice Springs. He had been told no fuel would be available at Bond Springs but had landed there still hoping that some fuel could be arranged there. When he found the airfield deserted, he bicycled to Alice Springs and rented a utility to take him to Alice Springs airport and back to Bond Springs where his wife and the aeroplane were waiting. He did not intend to purchase a drum of fuel from either of the Alice Springs refuellers and made no attempt to do so. He thought flying in was a safer and more attractive option than “messing with drums”. He misled Mr Phillips about his reasons for wanting to land at Alice Springs because he knew that a no-radio clearance could only be given for the purpose of obtaining maintenance, not for refuelling (Aeronautical Information Publication 25 November 2004, para 1.8, Exhibit R6). He refrained from informing Mr Phillips or the tower about his license restriction, thinking no doubt that in that isolated location he could infringe his license condition without being detected. If he had performed his downwind checks, observed the purpose-fitted mirror mounted on his wing strut or kept a lookout for light signals from the tower, he might well have been successful.
Other incidents
51. In his statement Mr Power sought to explain the Moorabbin incident on the basis that as the condition on his license made no mention of the word “only”, he thought that having obtained a clearance, he could fly into Moorabbin GAAP. “I thought that I could fly into the Moorabbin tower in the same manner I would have had it been in the States and particularly as the CASA condition did not expressly exclude the flight” (Exhibit A2, para 8). The flight was uneventful.
52. The applicant thus did not deny that contravention, nor did he deny the flights in June and July 2002 that also violated his license condition. The 2002 flights were drawn to his attention by the respondent’s letter of 23 September 2002 (T p33). In his letter to the respondent of 17 October 2002 (T p35), the applicant accepted responsibility for the transgression which he said was “thoughtless” and resulted from the fact that he “just rushed in without due thought”. That letter leaves no doubt that by at least October 2002, the applicant was well aware of the meaning of the restriction on his license and of the consequences of disregarding it. Nevertheless, a year later he committed a similar breach at Moorabbin, which he attempts to justify on the basis that the condition does not say Bankstown and Camden “only”. That, as the letter of 17 October 2002 clearly shows, can only be an attempt at ex-post facto rationalisation.
53. As regards the ESIR of 2 September 2004, the applicant admitted at the hearing that he had violated controlled airspace at Coolangatta. Although his explanation was unclear, it appeared that he was saying that he was unaware of the infringement at the time because, shortly beforehand, he had been in uncontrolled airspace below 2,500 feet.
54. In relation to the 23 September 2004 ESIR, the applicant admitted at the hearing that he had been cleared for runway 11 at Bankstown. When he descended to 1,000 feet, he observed that the wind direction, as indicated by the windsock, had changed. He went around the circuit again and landed on 11, following that indication. Asked if he knew that the active runway had been changed to 29, he said, rather confusingly, that he did, but the tower had not given him the runway number and it was up to him to watch the sock to determine the appropriate landing direction. But he again conceded that his written clearance was for runway 11.
55. The applicant also admitted that, as his logbook showed, he had started an aeroplane engine on 18 February 2007, which he was not permitted to do without a license. He countered that no flight risk was involved, as he was on the ground and simply warming up the engine.
56. The applicant was then asked about some logbook entries showing that he had made use of a number of electronic navigation aids, including GPS, ADF, NDB and VOR. There ensued a number of questions eliciting answers that suggested that the applicant was not clear about the meaning of “instrument rating” or of “instrument meteorological conditions”. Eventually it was agreed that five written questions would be submitted to Mr Power in the witness box, to which he would be asked to give written answers (Exhibit R3). As will be seen, they were simple questions which any pilot could be expected to answer immediately, without a second thought. Nevertheless, extended explanations in sign language by the interpreter were required before Mr Power could attempt to answer them. Even then, his answer to the second question was unresponsive, and his answer to the third claimed that he held a US instrument rating. Further questioning showed that was not the case, although he maintained his claim to hold a US instrument rating. It appeared, however, that what he really meant was that he had been trained to use those instruments as aids to navigation but was not authorised to fly into full cloud. In other words, he was not instrument rated.
57. From that course of questioning we conclude that Mr Power has not attempted to fly in IMC by reference solely to instruments. It was nonetheless disturbing. While Mr Power is a skilled lip-reader and appears to be adept in the use of sign language, he sometimes appears to have great difficulty in communicating on fundamental matters of aeronautical knowledge.
The applicant’s submissions
58. Mr McKeown submitted that the only evidence relevant to the issue of whether the applicant is a fit and proper person to hold a pilot’s license is that which relates to the tenure of the license that has been cancelled. As his PPL was issued on 26 May 2003, that evidence related only to the Moorabbin and Alice Springs incidents. The two ESIRs were not mentioned in the show cause notice. The one relating to Coolangatta is denied (though it seemed to us that Mr Power had admitted it) and has not been proved, and as regards the Bankstown report, there was no evidence that the applicant had done anything wrong, nor had any action been taken.
59. The Moorabbin flight was safe, and involved nothing more than a breach of the license condition. It had not been proved in court. The applicant had extensive experience in the United States, flying in much higher density traffic, and had obtained a clearance for his landing at Moorabbin. The license condition did not contain the word “only”, and the references to Bankstown and Camden were purely words of description. As is it a personal condition, the subjective context was relevant also. His earlier experience in the United States was on an unrestricted license and his Australian CoVs were also unrestricted. Any condition imposed on the PPL should have been made clear. Any pilot could obtain a clearance to enter a GAAP on a no-radio basis. The condition did not exclude other GAAPs and no action had been taken except by letter. As no court had found a breach by the applicant on that occasion, the respondent could not make a finding on the basis of that breach. The Moorabbin incident did not make the applicant unfit to hold a license.
60. The applicant knew he could not fly into fly Alice Springs, and it was for that reason that he rode his bicycle into the town. It was Mr Phillips who had suggested that he fly his aeroplane into Alice Springs airport. He had hired a utility truck because he wanted to use it to obtain fuel. Flying in was an option that Mr Phillips presented and was more attractive and safer than messing with drums and a pump.
61. The applicant had complied with the clearance ATC gave him and the failure to extend his landing gear or to notice the red light signal from the tower resulted from dehydration and stress.
62. In any event, he had not been convicted of disregarding the red light signal, although he did plead guilty. Under CAR 269(1), the respondent could consider the incident, as it had been regarded as proven, but that did not mean that the applicant was unfit. This was his first transgression in 32 years, and to cancel his license would constitute double punishment. It was unfair to hold the incident against him, as there had been no traffic conflict at the time. If there had been, in accordance with usual practice the other flight would have been diverted. He had thus made a safe flight and had not breached the condition. The respondent had tried to charge him over the incident, but the Director of Public Prosecutions had decided not to proceed, so under CAR 269(1A), cancellation could not be premised on that breach. The effect of sub-regulation (1A) was that the respondent could not find a person to be not a fit and proper person to hold a license on the basis of breaches that have not been proved in a court. The respondent had thus made findings about breaches of the Act, but only breaches that it could not rely on. It had not made a proper decision as there was not enough conduct to justify reaching that conclusion, especially given his experience and the unrestricted CoVs that had been issued to him.
63. The findings relating to flying without certain necessary endorsements also needed to be the subject of a court finding if they were to be taken into account. In any event, it was unreasonable to rely on those incidents given that the respondent had issued a CoV that permitted the applicant to fly an aeroplane with a constant speed propeller and retractable landing gear.
64. The respondent had co-operated with the investigation, in contrast with the situation in ReRepacholi and Civil Aviation Safety Authority [2003] AATA 573. Further, the tribunal in that case had considered only the later period of the applicant’s license tenure, so in this case it should look only at the period after the PPL had issued. He had fulfilled his responsibilities as a license holder, in contrast with the situation in Re Griffiths and Civil Aviation Safety Authority (1994) 34 ALD 554 at pp579-581, or Re Snook and Civil Aviation Safety Authority [2003] AATA 285. Those cases involved gross failures to comply with safety standards, but that was not the present case.
65. There are no decided cases on the meaning of CAR 269(1A), but it had to be construed as part of a new regime created by the adoption of division 3A, including s 33DC. The respondent now had the authority to ground a license holder immediately if there was a safety risk, but if it did not do so it could not rely on breaches that had not been proved in court as a basis for cancelling a license.
66. There was no justification for a condition that made Bankstown the only GAAP to which the applicant could fly, as the comparative figures for traffic movements (Exhibit A6) showed. A broader condition along the lines of that set out in Exhibit A5 would be preferable. It should be up to Airservices to decide whether a particular operation was safe and to grant or refuse a clearance accordingly. The decision as it stood was about punishment, not safety, and should be set aside.
Application of the law and findings of fact
67. The reviewable decision in this case is a CASA delegate’s cancellation on 15 August 2006 of the applicant’s PPL No 140729 pursuant to CAR 269 (1)(c) and (d). CAR 269 reads in pertinent part as follows:
…
269 Variation, suspension or cancellation of licence, certificate or authority
(1)Subject to this regulation, CASA may, by notice in writing served on the holder of a licence or certificate or an authority, vary, suspend or cancel the licence where CASA is satisfied that one or more of the following grounds exists, namely:
(a) that the holder of the licence, certificate or authority has contravened, a provision of the Act or these regulations, including these regulations as in force by virtue of a law of a State;
(b) that the holder of the licence, certificate or authority fails to satisfy, or to continue to satisfy, any requirement prescribed by, or specified under, these regulations in relation to the obtaining or holding of such a licence or certificate or an authority;
(c) that the holder of the licence, certificate or authority has failed in his or her duty with respect to any matter affecting the safe navigation or operation or an aircraft;
(d) that the holder of the licence, certificate or authority is not a fit and proper person to have the responsibilities and exercise and perform the functions and duties of a holder of such a licence or certificate or an authority; or
(e) that the holder of the licence, certificate or authority has contravened, a direction or instruction with respect to a matter affecting the safe navigation and operation of an aircraft, being a direction or instruction that is contained in Civil Aviation Orders.
(1A)CASA must not cancel a licence, certificate or authority under subregulation (1) because of a contravention mentioned in paragraph (1)(a) unless:
(a) the holder of the licence, certificate or authority has been convicted by a court of an offence against a provision of the Act or these Regulations (including these Regulations as in force by virtue of a law of a State) in respect of the contravention; or
(b) the person was charged before a court with an offence against a provision of the Act or these Regulations (including these Regulations as in force by virtue of a law of a State) in respect of the contravention and was found by the court to have committed the offence, but the court did not proceed to convict the person of the offence.
…
68. In its statement of facts and contentions the respondent relies on a number of incidents from June 2002 onwards:
§Five unauthorised flights in VH-IDN in June and July 2002;
§In relation to each of those flights, flying a Cessna 210 with constant speed and retractable gear features without holding the appropriate license endorsements;
§Flight to Moorabbin December 2003;
§ESIR Coolangatta 2 September 2004;
§ESIR Bankstown 23 September 2004;
§Breach of a license condition at Alice Springs 13 September 2005; and
§Failure to keep watch for visual instructions, Alice Springs, 18 September 2005.
69. Mr McKeown argued that only those incidents after the issue of the PPL on 26 May 2003 could be taken into account. He did not suggest that the issue of the license gave rise to any kind of estoppel, but pointed out that in Repacholi, the tribunal had considered only the incidents occurring in the latter period of the applicant’s license tenure.
70. In that case, however, the tribunal made it clear that it was adopting that approach because the applicant’s compliance history and aviation-related conduct over the previous 20 years fell into two distinct periods. For the first decade, the applicant’s aviation record was very poor, involving numerous contraventions and instances of enforcement action. In the last 10 years, however, his record had generally been very good. That behavioural change had led to his receiving a commercial pilot license, approval to act a supervising agricultural pilot and appointment as a chief pilot (at paras 90-91).
71. In the present case, there is no noticeable watershed of that kind. The issue of the PPL could be regarded as a recognition that his earlier breaches did not in themselves warrant license refusal and a decision to offer him a second chance. Consequently, all the incidents are relevant to the review.
72. We cannot accept the submission that the condition on Mr Power’s PPL was in any way unclear or ambiguous. We note that Member Kenny at the stay hearing was of the same view (transcript 17 November 2006, p21).
73. As Mr Anastasi pointed out, there would have been no point in the condition referring to specific airports, Bankstown and Camden, if it had not been intended that the applicant’s solo flying in GAAP control zones be restricted to them. By analogy, a New South Wales driver’s license bears the notation, “While licence is valid, you may drive vehicles of the classes below subject to conditions lists:”. If the classes listed were, for example, motor cars and motor cycles, there is not a court in the state that would hold that because the word “only” does not appear, the holder could also lawfully drive a semi-trailer.
74. Further, before issuing the PPL, CASA required the applicant to undertake training on GAAP procedures and Bankstown and Camden with a flying school. On 22 May 2003, Curtis Aviation endorsed his logbook with the notation that he had received training in the aeronautical knowledge needed to fly safely in the Bankstown and Camden GAAP control zones. Before receiving that endorsement, the applicant failed to pass a flight test with another flying school, showing that he lacked the necessary aeronautical knowledge about Bankstown and Camden GAAP control zones.
75. His brush with CASA over the 2002 flights in breach of his RPPL condition should have made Mr Power fully aware of the need to comply with license restrictions, even if he had not been so aware previously. After the Moorabbin flight in breach of his condition in December 2003, the applicant on 6 April 2004 applied for his license condition to be amended to permit operations at Archerfield, Moorabbin, Parafield and Jandakot. He was thus plainly in no doubt about what the condition meant, and he must therefore have been in no doubt about it at the time of the Alice Springs incident in September 2005.
76. The evidence thus shows that the applicant’s claim that he was misled by the condition’s ambiguity is an attempt at ex-post facto justification.
77. Nor can we accept the contention that the decision-maker may take into account only such breaches of aviation legislation as have been proved in a court. That requirement in CAR 269(1A) is expressly and in terms confined to cancellation (not suspension or variation) of a license pursuant to CAR 269(1)(a). The grounds for cancellation, variation or suspension in CAR 269(1)(a) to (e) are separate and independent, and not in any way cumulative. If CASA chooses to rely simply on the fact of a contravention under paragraph (a), the requirement in CAR 269 (1A) applies. If it chooses to rely on paragraphs (c) or (d), that requirement does not apply, but the decision-maker must discharge the burden of adducing evidence to establish a broader proposition, either failure in the duty with respect to safe navigation or operation, or that the license-holder is not a fit and proper person to have the responsibilities and exercise the functions of a holder of that license.
78. Consequently, while the breach of CAR 167 (failing to keep a watch for visual instructions at Alice Springs) is the only one of the contraventions alleged that has been found by a court to be proved, the others may also be taken into account.
79. The tribunal had regard to prior conduct in Re Ellery and Civil Aviation Safety Authority [1999] AATA 744 at para 253, where Deputy President Forgie held that “prior incidents involving a person may, when taken with more recent incidents, reveal a pattern of action, or inaction, which is relevant in determining whether an AOC should be suspended or cancelled in order to ensure compliance with [the legislation]”.
80. Similarly, in Re Griffiths and Civil Aviation Authority Q93/484 AAT number 8947A, 31 May 1994, the tribunal said:
…
We do not consider that we should limit the matters, to which we may have regard, to those events occurring immediately prior to the variation of the pilot licenses and related only to his actions as the holder of those licenses. In assessing whether he is a fit and proper person to carry out the functions, duties and responsibilities of a license-holder, one of the aspects we need to assess is how he has carried out those, or similar or related, functions, duties and responsibilities in the past. Past actions in respect of those matters are one guide to how he may be expected to behave in the future. It is not, however, simply the events immediately prior to the variation of the licenses which are relevant but the pattern of his past behaviour in areas related to that under consideration.
…
81. We find that all the contraventions of aviation legislation alleged by the respondent have been established. We also find that with two exceptions those contraventions were committed knowingly. One exception is the breach of CAR 167 at Alice Springs, which was an offence of inadvertence and failure to exercise due care. The other relates to flying the Cessna 210 without the appropriate license endorsements for constant speed propeller and retractable landing gear. As he had obtained the appropriate approvals in the United States, and there is no evidence of any difference in operating conditions between the United States and Australia in that connection, we think it possible that the applicant was not aware that he was not entitled to fly the Cessna 210 in Australia without having his license endorsed.
82. Subjective knowledge of contraventions is not required by CAR 269(1)(c) and (d), but it does cast light on the applicant’s attitude towards those breaches, which in turn bears on the issue of the safety of air navigation (Re McBain v Civil Aviation Safety Authority [2003] FMCA 83).
83. The applicant has a record of serial breaches of air legislation and has persisted in offending despite having been the subject of administrative action. He has demonstrated a poor attitude to his breaches, advancing far-fetched justifications and seeking to blame CASA for not giving him a license with more liberal conditions. Like the applicant in Re Mulligan and Civil Aviation Safety Authority [2006] AATA 652, he undertook flights in breach of his license condition, taking a chance that he would not be detected and in so doing demonstrated a flagrant disregard for compliance with the regulatory scheme (at para 90). As Deputy President Hack observed in that case, ”It is not to the point that these flights of themselves were short and were not a threat to safety. Pilots are not free to choose which regulations they will obey” (ibid.) As we have noted above, the applicant also seemed vague about some matters of basic aeronautical knowledge.
84. The applicant submitted that it was only because of the Alice Springs accident that CASA took cancellation action, and that accident resulted from dehydration and fatigue. But if he was tired and dehydrated, that was all the more reason why he should either have remained on the ground or accepted Mr Phillips’s offer to be his radio operator on the flight from Bond Springs to Alice Springs. While it was only one incident, it provided abundant justification for the respondent to undertake a complete review of the applicant’s record as a pilot.
85. We give full weight to Mr Power’s outstanding achievement of obtaining pilot’s licenses in two countries despite a grievous handicap, to his wide flying experience and to the fact that until the Alice Springs episode he had never had an accident. Nevertheless we are satisfied that on the basis of his record in Australia he has failed in his duty in relation to matters affecting air safety (CAR 269(1)(c)) and that he is not a fit and proper person to hold a pilot’s license (CAR 269(1)(d)).
86. We conclude that grounds for license cancellation under CAR 269(1)(c) and (d) have been established. The reviewable decision is affirmed.
I certify that the 86 preceding paragraphs are a true copy of the reasons for the decision herein of Professor GD Walker, Deputy President
Signed:
......................[sgd]...............................................
Renee Wallace, AssociateDate/s of Hearing 2, 3 & 4 April 2007
Date of Decision May 2007
Counsel for the Applicant Mr C McKeown
Solicitor for the Applicant Mr J Tallarita
Counsel for the Respondent
Solicitor for the Respondent Mr A Anastasi
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