Re Mulligan and Civil Aviation Safety Authority

[2006] AATA 652

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2006] AATA 652

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No Q2005/697

GENERAL ADMINISTRATIVE DIVISION		)
Re		TROY MULLIGAN

Applicant

And CIVIL AVIATION SAFETY AUTHORITY

Respondent

DECISION

Tribunal Deputy President P E Hack SC

Date26 July 2006  

PlaceBrisbane

Decision 1. The decision under review is set aside.
2. In substitution of that decision the Tribunal cancels the applicant’s commercial pilot (helicopter) licence and the private pilot (aeroplane) licence with effect from midnight on 2 August 2006.  

..................Signed.............

Deputy President

CATCHWORDS

CIVIL AVIATION – cancellation of licences – student pilot licence - flight radio telephone operator licence – commercial pilot (helicopter) licence – private pilot (aeroplane) licence –not a fit and proper person - absence of systematic approach to task of maintenance – absence of forethought and planning – decision under review set aside

Civil Aviation Regulations 1988 reg 43B, reg 133(1)(d), reg 230(1)(a), reg 269(a)(c)(d)

Civil Aviation Act 1988 s 9A, s 20AB(1)(a)

Hughes and Vale Pty Ltd and anor v New South Wales (No 2) (1955) 93 CLR 127

Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321

Re Taylor and Department of Transport (1978) 1 ALD 312

Re Griffiths and Civil Aviation Authority (1994) 34 ALD 554

REASONS FOR DECISION

26 July 2006   Deputy President P E Hack SC    

Introduction

1.The issue in this case is whether aviation licences held by the applicant, Troy Dean Mulligan, ought to be cancelled pursuant to regulation 269 of the Civil Aviation Regulations 1988. On 27 October 2005 the respondent, the Civil Aviation Safety Authority, determined that it should cancel Mr Mulligan’s student pilot licence, flight radio telephone operator licence, commercial pilot (helicopter) licence and private pilot (aeroplane) licence.

2.Mr Mulligan seeks a review of that decision in this Tribunal.

Factual Background

3.There is little dispute regarding the underlying facts. Except were I indicate otherwise, what follows is either common ground or is not disputed.

4.Mr Mulligan obtained a commercial pilot (helicopter) licence in July 2000. He worked initially as a helicopter pilot in Western Australia. In June 2004 he was a part owner of an aviation company based at Coffs Harbour, Rotorwing Helicopters Pty Ltd. He was that company’s chief pilot and the part owner of a Kawasaki Heavy Industries 4763B-KH4 helicopter registration VH-LDP (LDP). LDP was then quite an old helicopter. Around that time Mr Mulligan had met, and had had some dealings with, Mr Larry Pickering. Mr Pickering, (or a company controlled by him), was the owner of a Bell 206 Jet Ranger helicopter registration VH-HCV (HCV).  HCV was a much more modern helicopter than LDP and Mr Mulligan was very interested in the possibility in working for Mr Pickering as a means of moving back to his home on the Gold Coast, of upgrading the aircraft he flew and of being relieved of the stress of running the business of Rotorwing Helicopters Pty Ltd.

The 2004 events

5.On 13 June 2004, whilst Mr Mulligan was pilot in command, HCV suffered a critical component failure. Mr Mulligan made a forced landing in a swamp near Crescent Heads in New South Wales. 

6.I should interpolate at this juncture to say that counsel for the Authority, Mr Harvey, was critical of Mr Mulligan for not having disclosed the fact of his having been the pilot of HCV at the time of this incident when he provided a response, via his solicitors, to the Authority’s notice to show cause dated 27 June 2005 or in his written witness statement lodged with the Tribunal for the purposes of this hearing. I must say that it never became clear to me how it was said that this omission had any bearing upon the issues for determination in the present case. But, in my view, the criticism is misplaced. The show cause notice was not directly concerned with the events of 13 June 2004. Those events were mentioned in passing in Mr Mulligan’s response as the cause of some of the matters that generated the show cause notice. So far as the witness statement is concerned it is evident that it has been composed, in its relevant parts, by cutting and pasting from the solicitors’ letter of 1 September 2005.

7.To return to the narrative, following the forced landing, Mr Mulligan says that he came under a great deal of pressure. HCV was, he said, sinking slowly into the swamp and it became necessary to mount a rescue. He was involved in this process because he had been the pilot of HCV. He says, and I accept, that he was under a great deal of pressure from a number of sources in relation to the sinking of HCV. That pressure was, he says, the cause of the conduct that followed that is the subject of the criticisms made of him by the Authority in relation to the 2004 flights.

8.In order to understand that criticism it is necessary to record that all aircraft, including helicopters, have a maintenance release. That document records the maintenance that must be undertaken by the aircraft, on a daily basis or on the basis of the expiration of a period of in-service hours, both as to particular components of the aircraft and the aircraft itself. As well, the maintenance release records (or should record) the actual hours of flight on each occasion of flight and the cumulative total of in service hours.

9.In June 2004 LDP was the subject of maintenance release A 28108. It expired, in the sense that a 100 hours service had to be undertaken and a fresh maintenance release issued, on the earliest of 3 February 2005 or the expiry of 7578.0 hours total time in service. In addition, the maintenance release showed that work was required in relation to the tail rotor at 7577.6 hours total time in service. That work involved the replacement of the rotor blades, a critical component of any helicopter.

10.On 18 June 2004 Mr Mulligan flew LDP for 0.5 hours. At the end of that flight, the maintenance release showed that LDP had 7576.8 hours total time in service. That is, the rotor blade was due to be replaced in less than 1 hour of flying and the 100 hour service was due in just over 1 hour.

11.Mr Mulligan was conscious in a general sense of the need to replace the tail rotor; he had, in fact, ordered and obtained a replacement set of blades. But he seemingly did not turn his mind to that need in a particular sense during this period and he did not turn his mind at all to the need for a 100 hour service and a new maintenance release.

12.On 22 June 2004, and at a time when I accept that he was under pressure, Mr Mulligan flew LDP for 2.5 hours in connection with the salvage of HCV. During that flight both the tail rotor and the maintenance release became time expired, that is, the time for replacing the rotor blades and the time for undertaking the 100 hour service expired. In consequence, Mr Mulligan contravened reg 133(1)(d) of the Civil Aviation Regulations by not completing, prior to flight, maintenance required to be completed before the expiration of that flight. In addition Mr Mulligan flew LDP as pilot in command for a total of 2.5 hours on 23 June 2004 and for a total of 2.0 hours on 24 June 2004, again without replacing the rotor blade or undertaking the 100 hour service and again contravening reg 133(1)(d) of the Civil Aviation Regulations. In respect of the flights on each of these days they also were connected with the salvage attempt in relation to HCV.

13.Mr Mulligan says of these flights that he did not appreciate at the time of them that both the tail rotor and the maintenance release had become time expired. He says that he was, in effect, distracted by the pressure put on him by the events surrounding the salvage of HCV from Crescent Heads. The flights on each of 22, 23 and 24 June 2004 were to Crescent Heads and were for the purpose of ferrying maintenance crew and equipment to that location.

14.At some stage on 25 June 2004 Mr Mulligan became aware that the tail rotor was time expired. He says that he spoke to Mr Jess Knight, a licensed aircraft maintenance engineer based in Armidale, who told him that it would be safe to fly with time expired rotor blades. I understood Mr Mulligan to say, in his oral evidence, that this conversation took place before the flight to Armidale which is described below and which occurred on 25 June 2004. His written statement, exhibit 13, and the solicitors’ letter of 1 September 2005, puts the conversation as having occurred at Armidale after the flight there on 25 June 2004. There was no challenge by the Authority to the fact of such a conversation but I think it is more likely that it occurred in Armidale after the flight than that it occurred prior to the flight.

15.On 25 June 2004 (a Friday), having realised the need to replace the rotor blades, Mr Mulligan determined to fly to Armidale to have the rotor blades replaced by Mr Knight’s firm, Fleet Helicopters. At the start of that flight LDP was almost 5 hours time expired on its maintenance release and more than 6 hours time expired on its rotor blades. Mr Mulligan had with him on that flight Mr Norman Shattock who was an applicant for a position as a pilot with Mr Mulligan’s company.

16.Mr Shattock’s statement to the Authority was not challenged by Mr Mulligan. According to Mr Shattock he went to Coffs Harbour on 25 June 2004 for an interview with Mr Mulligan. As he arrived at the airport he was told by Mr Mulligan to

Hurry up, we are going to Armidale, lock up your car and get in.

They flew to Armidale with Mr Mulligan in the single front pilot seat and Mr Shattock in the three seat rear passenger compartment which also contained the replacement tail rotor blades.

17.The flight took about 1.25 hours. According to both Mr Shattock and Mr Knight LDP arrived in Armidale around 3.30pm. On arrival Mr Mulligan ascertained from Mr Knight that the replacement of tail rotor blades would take about 5 hours and that it could not be undertaken that day. Mr Mulligan made no enquiries before flying to Armidale to ascertain how long the task of replacing the rotor blades would take. He had an expectation that the task would be quite short. That expectation was entirely unrealistic.  Mr Mulligan was not able to leave LDP over the weekend and arranged with Mr Knight for it to be brought back on the following Monday, 28 June 2004. It is likely, and I find, that it was in this conversation that Mr Mulligan enquired about going over hours on the tail rotor. To this point Mr Mulligan had still not realised that the maintenance release was time expired.

18.Mr Mulligan and Mr Shattock were in Armidale for about one hour. It was somewhere between 4.00pm and 4.30pm when they were ready to depart. LDP was not equipped for night flight and Mr Mulligan was not licensed for night flight. Last light at Coffs Harbour on that day was at 5.22pm. Mr Mulligan could have ascertained that figure precisely but did not do so. Instead, he said, he checked last light on the GPS equipment in LDP. He did not realize at the time that last light in Armidale was likely to be after last light at Coffs Harbour which is to the east of Armidale. He thought that he had enough time to make the flight to Coffs Harbour in daylight hours. He was wrong. LDP landed in Coffs Harbour at 5.35pm and thus it, and Mr Mulligan, flew for some 13 minutes at night when neither it nor he was authorised to do so.

19.Mr Shattock in fact commenced as pilot from Armidale. He became concerned about the onset of last light around half way back. Mr Mulligan suggested that he land the aircraft and that he, Mr Mulligan, would fly the balance of the flight to Coffs Harbour. That was done.

20.Mr Mulligan’s explanation for this, apart from his error regarding the GPS reading, is that he encountered stronger than expected tail winds on the last part of the flight. But pressing on to Coffs Harbour was, he considered, a safer alternative than making a landing in hostile terrain in order to avoid night flying.

21.That may be correct but, as it seems to me, it misses the point. Pilots ought not put themselves in the position of having to make that choice. The vice in Mr Mulligan’s conduct is not so much night flying per se but the complete absence of any foresight and planning on his part. I will discuss that further when I consider the overall effect of the conduct of Mr Mulligan.

22.On the following day, 26 June 2004, Mr Shattock flew LDP as pilot in command for a period of some 1.6 hours. Mr Mulligan was, at the very least, aware of these flights and must, as well, have been aware that the flights were with a time expired tail rotor.

23.On Sunday 27 June 2004 another applicant for employment, Mr Alistair Mitchell, undertook some 2.1 hours of flight as pilot in command of LDP, again under the supervision of Mr Mulligan. It was at this time that Mr Mulligan became aware, because Mr Mitchell pointed it out to him, that the maintenance release had expired. It is not clear from the evidence whether that was pointed out by Mr Mitchell before or after he undertook the flight. I propose to take the view most favourable to Mr Mulligan.

24.In relation to the flights of Mr Shattock on 26 June 2004 and Mr Mitchell on 27 June 2004 it must be said that no record was made in the maintenance release, either at the time or later, of the flights on 26 June 2004 and no record was made in the maintenance release at the time of the flights on 27 June 2004. There was, eventually, an entry made by Mr Mitchell of the flights on 27 June 2004, probably around 8 or 9 July 2004, after Mr Mitchell had spent some time worrying about the non-recording of these flights and those on the following day 28 June 2004. If nothing else, Mr Mulligan had a responsibility as owner to record these details even if the pilot in command had not done so.

25.On the morning of 28 June 2004 Mr Knight studied the maintenance logbooks for LDP that had been left with him on 25 June 2004. He detected that, as a consequence of errors on the part of those had earlier serviced LDP, its engine basket was some 500 hours overdue for replacement. He immediately contacted Mr Mulligan by telephone. There is no suggestion that Mr Mulligan was in any way responsible for the fact of the engine basket being overdue for replacement nor that he was in any way at fault for not having detected the error. The error was entirely the fault of the earlier maintenance company.

26.After these matters were conveyed to Mr Mulligan, Mr Mulligan was then aware that LDP was almost 10 hours overdue for its 100 hour service, almost 10 hours overdue for its rotor blade replacement and some 500 hours overdue for its engine basket replacement.

27.At the suggestion of Mr Mulligan, Mr Mitchell flew LDP to Armidale for the service to be undertaken by Mr Knight. At that time Mr Mitchell had had his commercial pilot licence for a matter of days only. Mr Mulligan flew HCV to the Gold Coast (with Mr Shattock as a passenger).

28.There is some controversy regarding the circumstances of the flight by Mr Mitchell to Armidale and, in particular, the extent to which Mr Mulligan believed that he had permission of the Authority to undertake that flight by Mr Mitchell. Where maintenance was overdue on an aircraft the Authority could issue a special flight permit. Mr Mulligan says that he believed he had obtained the necessary consent.

29.His evidence was that about a week before 28 June 2004 he had spoken to an officer of the Authority in its Tamworth office by telephone. He said that he had advised the person to whom he had spoken that LDP was over hours for a service but that it had to go to Armidale to have that service undertaken. He says that he was told that he could obtain a permit or approval (he was not sure which term he was told) to undertake that flight. On the day of the flight, that is 28 June 2004, he says that he again contacted the Tamworth office of the Authority by telephone for two purposes – to track down the pilot’s licence of Mr Mitchell and to discuss the fact, as Mr Mulligan now knew, that the engine basket was now significantly over time and that the maintenance release and tail rotor were also over time.

30.The effect of the evidence of Mr Mulligan was that he felt, following this conversation, that he had the appropriate approval. He reached that conclusion, so he said, from the absence of disapproval in the course of this conversation.

31.I have great difficulty in accepting Mr Mulligan’s evidence on this aspect of the case. First, the notion of him telephoning the Tamworth office of the Authority a week prior to 28 June 2004 is not consistent with his evidence otherwise. On his evidence he was not aware until 25 June 2004 of the fact of the tail rotor being over hours and was not aware until 27 June 2004 of the fact of the maintenance release being over hours. I am however prepared to accept his evidence of the first conversation as to its content although not the date. It is the effect that he gives to the second conversation that I am unable to accept. If it be accepted that he had the conversation along the lines that he suggested I do not regard it as likely that he could possibly conclude that he had approval from the absence of disapproval. The evidence, and particularly that of Mr Mitchell, satisfies me that he had a conversation with an officer in the employ of the Authority on 28 June 2004 and I am prepared to accept as well that it is likely that he mentioned the fact of various over time issues. But I cannot accept that anything was said to him that could have encouraged him into a belief that he had obtained approval to undertake (via Mr Mitchell) the flight from Coffs Harbour to Armidale. In my view his evidence on this aspect is the product of reconstruction. He may have persuaded himself of the truth of it but to me it simply defies logic and common sense to think that, on the basis of a lack of disapproval, approval was in fact being given. I conclude that Mr Mulligan cannot have believed that he had the Authority’s approval to have the flight undertaken by Mr Mitchell.

32.There is, as well, the consideration that whilst he says that Mr Knight had told him on the previous Friday that it would not be unsafe to fly with the rotor blades over time he had made no similar enquiry about the maintenance release or the engine basket and, as well, by 28 June 2004, LDP had in the order of five more hours of flight recorded.  

33.Fortunately the flight was uneventful and Mr Mitchell arrived safely. The various services were undertaken on LDP. One of the consequences of all of this was that these matters came to the attention of the Authority. Mr Noel Saffery investigated these matters in the period up to October 2004. Subject to one matter the details of this investigation are not relevant.

The unrecorded flights

34.The exception concerns an allegation pressed in the hearing by the Authority that on 20 occasions between January 2004 and June 2004 Mr Mulligan flew LDP but made no entry in its maintenance release. Were that to be the case Mr Mulligan would have breached reg 43B of the Civil Aviation Regulations on each of those occasions.

35.The proof offered by the Authority of this allegation was, if I may say so, most unsatisfactory. The underlying element of the Authority’s proof lies in an analysis of what is called “Avdata charges”. These charges are seemingly levied by Flight Services Australia in respect of aircraft movements.  When the allegation was originally put to Mr Mulligan in the show cause letter of 27 June 2005 the response, in his solicitors’ letter of 1 September 2005, was a denial of the accusation particularised by the assertion that errors in Mr Mulligan’s electronic logbook would be data entries caused by a key punch error. It was said further that information from Avdata records could not be reasonably relied upon for accuracy and Mr Mulligan could recall numerous instances where he had been charged in circumstances where he had not flown.

36.Notwithstanding that response, the Authority’s delegate was satisfied that the allegation was made out when determining to cancel Mr Mulligan’s licences. When proceedings were commenced in the Tribunal, the allegation of flights without entry in the maintenance release was put at issue by Mr Mulligan’s statement of facts, issues and contentions lodged on 27 March 2006 (exhibit 2 at paragraph 26 and 27) and in his witness statement lodged on 17 March 2006 (exhibit 13 at paragraph 32).

37.It was, as it seems to me, tolerably clear that Mr Mulligan was making an issue the accuracy of the Avdata records and disputing the allegations made by the Authority. The evidence of Mr Mulligan was to the effect that air navigation and landing charges were based upon the scrutiny of pilot’s radio calls of take offs and landings.  Mr Harvey told me from the bar table that at Bankstown airport the air traffic controller records the data from visual observations of aircraft operations. What the position was at Coolangatta or Coffs Harbour remains a mystery to me. I am left with Mr Mulligan’s evidence that the details were extracted from radio transmissions and that the data was notoriously unreliable. He gave evidence of having frequently found charges levied against him for flights that he had not conducted and his response to such findings. He spoke, as well, of the fact that pilots do give the incorrect call sign in order to avoid having to pay landing fees.

38.None of Mr Mulligan’s evidence on this aspect was contradicted nor was it challenged.

39.The unreliability of Avdata records appears to me to be demonstrated by the fact that the schedule, prepared by Mr Saffery from Avdata records, shows 12 entries where the call sign of LDP is shown against an aircraft description which, on the evidence, is quite different to LDP. Mr Ribbands of counsel who appeared for Mr Mulligan elicited from him details of the description of other types of aircraft recorded in the schedule.

40.Mr Saffery was, I gather, in the hearing room for the duration of the hearing but was not called by the Authority. Thus I was left without any explanation of the steps taken by him to compile the schedule and without any evidence to explain the apparent inaccuracy in some, at least, of the raw data. And of course Mr Mulligan was deprived of the opportunity of testing the reliability of Mr Saffery’s record.

41.With these matters in mind I turn to the particular allegations. The first relates to 25 January 2004. As I understand the document prepared by Mr Saffery, its effect is to allege that, by reference to Mr Mulligan’s pilot’s logbook, it can be seen that he flew LDP for a period of 9.4 hours on that date but that there is no corresponding entry in the maintenance release as there should be. Whether that is right or not I cannot say. The maintenance release for that period is not in evidence before me. This was raised in the course of submissions and reference was made by Mr Harvey to “a missing page”. Subsequent to the hearing the Authority forwarded to the Tribunal what was described in correspondence as “an additional sheet that was accidentally omitted from the T documents.” It was said however, that it had been included as part of supplying the complete document from the file; it was said expressly that the Authority was “not suggesting the Tribunal should receive it as evidence.” In light of this, I proceed upon the basis that the matter is not in evidence before me although for completeness I shall have the correspondence and the enclosures marked as exhibit A for identification.

42.The same is true of the allegations relating to flights on 28, 29 and 30 January and 1 February 2004. That is, even if I were to be satisfied that Mr Mulligan flew LDP on these occasions, there is no evidence before me that would lead me to conclude that there are no corresponding entries in the maintenance release.

43.The next allegation relates to 21 February 2004. It is said, by reference to Mr Saffery’s schedule, that Avdata was recorded that day but there are no entries in either Mr Mulligan’s logbook or the maintenance release. It is correct that there are no entries in the logbook but I am simply unable to say from my inspection of the copy of the maintenance release that there is no entry for that date. There does appear to me to be an entry of 0.5 hours for that day although it may be 20 February 2004.

44.It is next relevant to note that it is alleged that on 3, 12, 26 and 27 March 2004 there are no entries in the maintenance release for flights on those days. Whilst I am able to say that there are no entries in Mr Mulligan’s logbook for those days I cannot tell whether or not there are entries in the maintenance release. I am simply unable to decipher the copy of the document put before me.

45.On 7 April 2004 there is an entry in the logbook for 0.2 hours but no entry of that date in the maintenance release nor is there an Avcharge entry for that date. There is, however, an entry in the maintenance release that appears to be 6 April 2004 for a similar period of hours, an Avcharge entry for the same date but no logbook entry. It is likely, on this evidence, that the entry in the logbook for 7 April 2004 is erroneous and that it ought to be a reference to a flight on 6 April 2004.

46.In the balance of April 2004 there is said to be Avdata entries on 11, 23 and 28 April. So far as I can decipher the maintenance release there are no entries on 11 or 28 April but there appears to me to be an entry on 23 April (between and 18 and 24 April). I am thus unable to be satisfied that Mr Mulligan failed to record an entry for 23 April 2004. In reaching that conclusion I have not overlooked the fact that Mr Mulligan received, but did not contest, an infringement notice from the Authority that alleged that on this day he did fail to record the total time in service on the maintenance release. I do not regard that as relevant for the reasons that I discuss below when I discuss the circumstances surrounding the payment of that and the other infringement notices. 

47.On 26 June 2004 the uncontested evidence is that Mr Shattock flew 1.6 hours in LDP. There is no entry in the maintenance release. It was primarily Mr Shattock’s responsibility as pilot in command to make that entry, but Mr Mulligan, as the holder of certificate of registration also had a responsibility to make the entry.

48.On 5 occasions, 27 February, 30 March, 16 May, 16 June and 19 June 2004, Avdata records suggest the fact of a flight not otherwise recorded. But given the evidence of the unreliability of that data and the failure to prove the source or reliability of it I am not prepared to conclude that Mr Mulligan flew LDP on those days.

49.The result of all of this is that on two occasions, 11 and 28 April 2004 the evidence suggests that Mr Mulligan flew LDP, recorded those flights in his pilot’s logbook but failed to record them in the maintenance release thereby breaching reg 43B of the Civil Aviation Regulations. But those omissions only allow me to conclude that  Mr Mulligan was guilty of occasional laxity in record keeping; that does not allow me to conclude, as the Authority seem to suggest, that he was an habitual non-recorder or that there was a pattern of repeated non-recording.

The infringement notices

50.The mechanism of regulation of the aviation industry permits the Authority to issue infringement notices that seem to me to be analogous to the type of ticket familiar to motorists. The recipient of the infringement notice, in common with the motorist who receives a traffic offence notice, may either pay a prescribed penalty as set out in the notice or dispute liability and have the issue of liability for the alleged offence determined by a court. And, in common with traffic offence notices, there is a system of accumulating demerit points. Each infringement notice carries a set number of demerit points. Once a particular number of points are accumulated within the specified period of time in relation to a class of authorisation the Authority is required by the legislation to suspend or cancel all of the holder’s authorisations of that same class. The points are incurred if the infringement notice is paid within the prescribed time or if the recipient is convicted or found guilty by a court.

51.The result of Mr Saffery’s investigation was that the Authority issued a number of infringement notices to Mr Mulligan dated 2 December 2004. There were 7 notices in total. Two alleged that he failed to record total time in service on the maintenance release of LDP. Another two related to the night flying on 25 June 2004, one in relation to piloting an aircraft not equipped for night flight the other in relation in conducting a night flight when not authorised as a pilot. There were infringement notices in relation to the commencement of flight without ensuring the replacement of the tail rotor blades on 22 June and 25 June.

52.Mr Mulligan had 28 days in which to pay the prescribed penalty. If he did, the infringement notices were such that he would have had incurred 12 or more demerit points and consequently he would be suspended by operation of law for a period of three months.

53.Mr Mulligan’s evidence was that when he received the infringement notices he rang his solicitor Mr Maitland. There was some discussion and Mr Maitland advised him not to pay the notices. Mr Maitland advised him that he should contest them in court. The basis on which the notices were to be contested was never explained to me. In January 2005 a Dr Jonathan Aleck was the Manager of the Enforcement and Investigations Branch, Office of Legal Counsel in the Authority. On 20 January 2005, in circumstances that the Authority chose not to explain to me, Dr Aleck telephoned Mr Mulligan a little before midday. According to Mr Mulligan, Dr Aleck told him that it was the last day for payment and that he had until midday to pay the infringement notices. Mr Mulligan told Dr Aleck that the legal advice that he had received was not to pay. Dr Aleck asked him why. Mr Mulligan said that he would be suspended and that if his licence was suspended he would lose his livelihood. According to Mr Mulligan, Dr Aleck informed him of alternatives and that if he did pay it was possible for him to apply for a reinstatement of his licence if he relied upon it for his livelihood. That conversation ended on the note that Mr Mulligan would try and get some more legal advice. He attempted to do so but was not able to get hold of his solicitor.

54.A little while later, but on the same day, Dr Aleck again telephoned Mr Mulligan. On this occasion he said that if one of the notices was retracted it might avoid the automatic suspension and informed Mr Mulligan that he would have a look at that issue and get back to him. He did so a short time later telling Mr Mulligan that he looked at them and was not able to retract any of the infringement notices. He did tell Mr Mulligan that severe financial hardship was a basis for withdrawing a suspension and that if Mr Mulligan put in paperwork promptly, detailing that severe financial hardship, in all likelihood the matter could be resolved before the suspension took effect. The effect of what Dr Aleck told Mr Mulligan was that he could not see any reason why Mr Mulligan would not be a suitable candidate for relief under that provision.

55.Mr Mulligan said that Dr Aleck, in effect, pressed him to such an extent to pay the infringement notices that, despite having received legal advice not to do so, he agreed to pay the infringement notices and provided his credit card details to Dr Aleck for that purpose.

56.I make it clear that I accept the general accuracy and reliability of Mr Mulligan’s evidence of these conversations. I find it extraordinary that someone in the position of Dr Aleck would speak to Mr Mulligan in these circumstances, a fortiori when he was told by Mr Mulligan that he had solicitors acting for him, however there seems little point in my speculating about his motivation for doing so.

57.At an earlier time the case for Mr Mulligan seemed to be advanced on the footing that these conversations created an estoppel that was never clearly identified. As the case was argued at the hearing the suggestion of an estoppel was not pressed, rather, the case for Mr Mulligan was advanced on the footing that the conversations led Mr Mulligan to believe that he had a very real prospect of not being suspended because of the likelihood of him being able to establish the circumstances that would warrant reinstatement of his licences. 

58.Following Mr Mulligan’s conversations with Dr Aleck, Mr Mulligan sent him an email on 27 January 2005 formally requesting a withdrawal or grouping of the infringement notices. Mr Mulligan further outlined the reasons for the Authority to adopt that course and set out, albeit in fairly scant detail, the hardship that would be caused to Mr Mulligan if his licence was suspended.

59.That communication was responded to in a detailed way in a letter from Dr Aleck of 1 February 2005 the effect of which was to decline, with reasons, to withdraw any of the infringement notices. Dr Aleck said of the representations regarding the ramifications of suspension that a separate application ought to be made.

60.Shortly after 8 February 2005 Mr Mulligan was served with a notice of that date informing him that the Authority had issued a first-time demerits suspension notice which would have the effect of suspending all pilot licences held by him for a period of 90 days from 8 March 2005 to 5 June 2005. With that notice came an advice regarding reinstatement.

61.On 21 February 2005 Mr Mulligan made a written application for reinstatement on the grounds that his pilot’s licence was his sole means of income and that a 90 day suspension would force him to unemployment and severe financial hardship. That assertion was supported by a statutory declaration made by virtue of the Oaths Act 1867 (Qld.). The response of the Authority to that document was that Mr Mulligan was contacted by Dr Aleck and told that the statutory declaration had to be made pursuant to the Statutory Declarations Act 1959 (Cth.). I must say the distinction escapes me. It seems to me to be no more than an exercise in pedantry. In any event around 1 March 2005 the Authority sent Mr Mulligan a letter acknowledging receipt of his application for reinstatement and requesting from him a vast amount of further information. Were it to be necessary for me to determine whether this request was made genuinely I would have difficulty in doing so. It is difficult to avoid the conclusion that the Authority was not acting genuinely in seeking the information that it sought.

62.In any event Mr Mulligan complied with the request and forwarded copies of bank statements, loan contracts, rent receipts, credit card statements and such like, together with an additional statutory declaration declared, on this occasion, under the Commonwealth statute. 

The unlicensed flights

63.On 8 March 2005, and before Mr Mulligan had received a response from the Authority to his request, the 90-day suspension came into force. He was contacted by telephone on that day by another officer in the employ of the Authority and reminded of the fact of the suspension. He describes himself at this time as being panic stricken but fortunately had no immediate flights.

64.Despite the fact that he was suspended Mr Mulligan admits that he flew HCV as pilot in command on 17 March 2005, 28 March 2005 and 1 April 2005. I accept that each of these flights were short flights and that, in themselves, they did not constitute any threat to aviation safety. But again, for reasons that I will discuss in more detail, that misses the point.

65.What Mr Mulligan says of these circumstances is that at the time of these flights, and on the basis of his conversations with Dr Aleck, he had a reasonable expectation that his licence was about to be reinstated. When faced with the agony of the moment in having to decide between flying whilst suspended or telling Mr Pickering that he could not fly, he unwisely chose the former rather than the latter.

66.That may be true in relation to the flight on 17 March 2005. But I do not accept that it was true in relation to the second and third flights on 28 March and 1 April 2005. That is so because on 22 March 2005 the Authority sent to Mr Mulligan a letter in response to the material that he had submitted in support of his application for reinstatement. The letter from the Authority made it plain that, on the information and evidence that had been provided, the decision maker was not satisfied that Mr Mulligan’s income from being a pilot was his only, or principal, income and was also not satisfied that depriving him of that income would cause severe financial hardship. The letter made it plain that the decision maker was well short of a state of mind that might lead to a reinstatement. Accepting, as I do, that the consequence of the conversations with Dr Aleck was that Mr Mulligan had a reasonable expectation of the type he claimed, that expectation was not reasonably based at any time after he received the letter of 22 March 2005. On the view I take of the matter it must be concluded in relation to the flights of 25 March and 1 April 2005 that Mr Mulligan took a chance that he would not be detected.

67.In its case as originally formulated the Authority alleged two further instances of flying whilst suspended against Mr Mulligan being allegations in relation to 5 April 2005 and 13 April 2005. Mr Mulligan denied those allegations, and has always done so, and the Authority did not press those allegations. Hence I need not concern myself further with them.

68.It remains finally to mention that on 15 April 2005 Mr Mulligan was “ground running” HCV, that is to say he was sitting in the aircraft running its engines whilst the plane was on the ground. Officers of the Authority spoke to him about that because it is as well a breach of the Civil Aviation Regulations to start an engine of an aircraft when the control seat was not occupied by a person who might lawfully fly the aircraft. The Authority’s case hinted at the notion that Mr Mulligan was preparing to fly HCV on this occasion. I do not accept that that was so.

69.On 22 June 2005 Mr Saffery caused complaints and summonses to be issued and served on Mr Mulligan alleging 5 breaches of section 20AB(1)(a) of the Civil Aviation Act 1988 (Cth.) being the allegations of flying whilst unlicensed and another offence alleging a breach of reg 230(1)(a) of the Civil Aviation Regulations in relation of the ground running. Those matters were eventually dealt with in the Southport Magistrates Court on 1 February 2006 at which time Mr Mulligan pleaded guilty to 3 offences of flying whilst suspended and the offence in relation to the ground running. He was fined a total of $3,800.00. The charges relating to flights on 5 April and 15 April 2005 were dismissed when the prosecution offered no evidence.

70.In the meantime by letter dated 27 June 2005 the Authority called upon Mr Mulligan to show cause why his licences ought not be suspended cancelled or varied. Eventually, and notwithstanding the response of his solicitor dated 1 September 2005, the Authority made a decision on 27 October 2005 to cancel Mr Mulligan’s flight crew licences.

The Statutory Setting

71.The power of the Authority to vary, suspend or cancel a licence is set out in reg 269 of the Civil Aviation Regulations. It may be exercised where the Authority is satisfied that one or more of a number of grounds exist. Those identified as being relevant in the present case were (i) that Mr Mulligan had contravened a provision of the Act or the Regulations (paragraph (a) of reg 269 of the Civil Aviation Regulations); (ii) that Mr Mulligan had failed in his duty with respect to a matter affecting the safe navigation or operation of an aircraft (paragraph (c) of reg 269) and (iii) that Mr Mulligan was not a fit and proper person to have the responsibilities and exercise and perform the functions and duties of a holder of the licence (paragraph (d) of reg 269).

72.It is not in dispute that one at least of those matters is made out. That is that Mr Mulligan has contravened a provision of the Act or the Regulations. Indeed he has contravened a provision of the Act on 3 occasions and on his own account contravened various provisions of the Regulations on numerous occasions in relation to the 2004 conduct. But, in my view, the matter is best considered by asking whether Mr Mulligan is a fit and proper person to have the responsibilities and exercise and perform the functions and duties of a holder of the licence, having regard to the conduct of Mr Mulligan as I have found it to be.

A fit and proper person

73.It is, of course, to be remembered that in considering the issue of a fit and proper person it is unwise to attempt to define the matters that may be legitimately enquired into and that each case must depend upon its own circumstances: see Hughes and Vale Pty Ltd v New South Wales (No 2) (1955) 93 CLR 127 at 157. But in the present context it is possible to say that a fit and proper pilot is one who has an appreciation of the statutory responsibilities and who discharges them: Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 349. In Re Taylor and Department of Transport (1978) 1 ALD 312 the Tribunal was considering reg 258 of the Air Navigation Regulations, the statutory precursor to reg 269 of the Civil Aviation Regulations and relevantly identical to it.  The Tribunal said at page 321,

In the context of reg 258(1)(d), the enquiry whether the applicant is a ‘fit and proper person’ is directly focused upon the fitness and the propriety of the applicant exercising the ‘responsibilities’ and performing the ‘functions’ and ‘duties’ of the holder of a licence – in this case a commercial pilot licence. It is not simply a question of competence to fly an aircraft which the Secretary must consider for this purpose.

In our view, what the regulation requires is a consideration of the applicant's conduct measured against the responsibilities, functions and duties of the holder of a commercial pilot licence as they emerge from the provisions of the Air Navigation Regulations. Whilst it would be inappropriate to endeavour to catalogue those responsibilities, functions and duties in any exhaustive fashion, it is clear that they include observing the interests of the safety of air navigation – not only the interests of pilots, passengers and the owners of aircraft, but also the interests of the public at large (at page 321).

74.That passage has been applied in many subsequent decisions of the Tribunal: see e.g. Re Griffiths and Civil Aviation Authority (1994) 34 ALD 554. In my view it is appropriate to apply it in the present case.

75.But in doing so I propose to bear in mind that, by virtue of s 9A of the Civil Aviation Act the Authority, in exercising its powers and performing its functions, and the Tribunal when performing its role, must regard the safety of air navigation as the most important consideration.

76.It seems to me that the way to consider the question is to consider the various incidents and to analyse Mr Mulligan’s conduct by reference to, in particular, the interests of air safety.

77.In late June 2004 Mr Mulligan flew LDP on a number of occasions when both the tail rotor and the maintenance release were time expired. Mr Mulligan did not become aware that the tail rotor was time expired until 25 June 2004 and did not become aware of the maintenance release being time expired until 27 June 2004 when Mr Mitchell noticed it. In my view the vice in this conduct is not so much flying with time expired parts but rather flying repeatedly without noticing that time had expired.  

78.Mr Mulligan flew on three occasions when the tail rotor was over time before noticing that. He flew on those occasions and another three occasions without noticing that the maintenance release had expired. He must not have had any system of checking these matters on a regular basis. It does not matter that he may have been under pressure at the time. I imagine that pilots frequently operate under pressure. But they should operate within a system whereby they are aware, by checking on a regular basis, that maintenance issues are in hand. By that I mean that maintenance is scheduled as required, not after it is required, and that the pilot who is regularly in command has an overall appreciation of the maintenance issues that will arise in the foreseeable future. That to me epitomises a safe pilot, so far as this aspect of flying is concerned.

79.The breaches do not, of themselves, represent any great risk to safety but they point to the absence of any systematic approach by Mr Mulligan to the task of maintenance. Here Mr Mulligan had no such system. Indeed, even when he became aware that the tail rotor had gone overtime, he did not then notice that the maintenance release was also overtime. I infer that he did not pay any attention to the maintenance release.

80.In relation to these matters it is said on behalf of Mr Mulligan that the conduct was a “one off” series of events, generated by very unusual circumstances, and unlikely to be repeated. And, it is said, that they were of such minor scope that they only warranted the imposition of infringement notices.

81.Some, but not all, of that may be accepted. But what troubles me is the systemic failures. The multiple instances of flying with a time elapsed tail rotor and maintenance release leads me to conclude that Mr Mulligan did not have a proper appreciation of the need for a pilot to be aware of the maintenance environment of the aircraft and to have a system, even one as fundamental as checking the maintenance release before every flight, that kept the pilot conscious of the maintenance that was required. Moreover, I am not confident that Mr Mulligan even now fully appreciates the importance of complying with the maintenance release requirements. There were occasions during his evidence when he spoke, almost dismissively, of the “100 hour service”, suggesting by his tone that he regarded it, and the failure to have it undertaken on time, as matters of very little importance. I am troubled by that attitude to matters of aircraft maintenance which is a fundamental part of aircraft safety.

82.The flight to Armidale and back raises separate considerations. What characterises Mr Mulligan’s conduct on that occasion is a complete absence of forethought and planning. He had a flawed view of the time that the replacement of the tail rotor would take. He did not consider realistically, or enquire, in advance of the trip how long it would take to change over the tail rotor. He had made no arrangements in advance to have the work undertaken. He arrived quite late in the afternoon without any idea whether the maintenance could be undertaken. When it came time to leave he did not consider the possibility of head winds. He left at a time when he had misinformed himself (by reading the GPS system) about the amount of light available. He left at a time when there was no margin for error, in this case headwinds and the need to land and change pilots.

83.So far as this incident is concerned I would consider that a pilot who was conscious of the needs of safety and the need to comply with the statutory requirements ought to have planned this trip in such a way that the work could be undertaken and the helicopter returned to Coffs Harbour without running the risk of impermissible night flying. It may be correct to say that the safer course was to press on to Coffs Harbour, even after dark. But Mr Mulligan ought not to have put himself in the position where he had to make that choice. He ought to have planned his trip better and he ought to have given more thought to the possibility of encountering headwinds.

84.In my view a pilot ought give consideration to these matters in advance in order to avoid the potential for unsafe practices and breaches of the legislation. Once again, it may be said that this breach was, of itself, of no great moment, however it highlights an issue of a much greater moment to me, the absence of any planning or forethought.  

85.On the succeeding days Mr Mulligan was aware of Mr Shattock and Mr Mitchell flying LDP when he knew by then that the tail rotor was overtime. That cannot be seen as other than a deliberate breach of reg 133(1)(d) of the Civil Aviation Regulations. Additionally, on those days he was, at best, lax in ensuring that the flight details were recorded on the maintenance release.

86.The next incident occurred on 28 June 2004. Prior to Mr Mitchell flying LDP to Armidale, Mr Mulligan had become aware that its tail rotor and maintenance release were each almost over 10 hours overtime and that the engine basket was some 500 hours overtime. He did not suggest in his evidence that he had received any assurances from Mr Knight that flying the helicopter in those circumstances was safe. It was submitted for Mr Mulligan that,

Neither the LAME nor CASA said that it was unsafe to ferry the aircraft notwithstanding this error on the part of the previous maintenance organisation.

87.I do not need to decide whether it was the responsibility of the LAME (Mr Knight) to tell Mr Mulligan that the flight was unsafe. It certainly was not that of the CASA officer. But, in my view, it certainly was the responsibility of Mr Mulligan to make some enquiry of Mr Knight to ensure that, with the three over time conditions that LDP was experiencing, the ferry flight was safe. Mr Mulligan did not do so.

88.Mr Mitchell was an inexperienced pilot. It was, in my view, quite wrong to send another pilot to fly a helicopter with these maintenance deficiencies, all the more so one with as little experience as Mr Mitchell, without having made positive enquiry as to the safety of that flight. It was not enough, nor was it reasonable, to expect that Mr Knight or the CASA  officer would tell him that the flight was unsafe.

89.To the extent to which the allegation of unrecorded flights permit me to reach any concluded view I conclude that Mr Mulligan was guilty of occasional laxity in record keeping.  I do not regard that finding as having any particular bearing upon the issue of whether he is a fit and proper person. By themselves the findings are trifling and add nothing to the other findings I have made.

90.On the view that I take of the evidence Mr Mulligan’s flying whilst suspended on 17 March 2005 was wrong, but was explicable on the basis that he reasonably believed that being re-licensed was imminent. But the same cannot be said, in my view, for the flights on 28 March and 1 April 2005. I am of the view that in relation to these flights he took a chance that he would not be detected. In so doing he demonstrated a flagrant disregard for compliance with the regulatory scheme. It is said that Mr Mulligan was placed in a “no win situation” with his employer and that he would lose his job were he to advise the employer of the suspension. That may be accepted, but in this case when confronted with a conflict of private interest and public duty, Mr Mulligan chose his private interest over his public duty. 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. Mr Mulligan chose, on two occasions, to deliberately ignore a suspension and that leads me to conclude that he does not fully appreciate the need for compliance with the regulatory scheme. I cannot be confident that Mr Mulligan would not choose to disregard a regulation more closely attuned to safety issues or that he would not again prefer his private interest to his public duty when again placed in a similar situation.

91.These incidents collectively satisfy me that Mr Mulligan is not a fit and proper person to hold the flying licences, that is, the commercial pilot (helicopter) licence and the private pilot (aeroplane) licence. There is a consistent pattern to his conduct characterised by a lack of foresight and planning and by a lack of appreciation of the need to comply with the scheme of regulation.

92.I propose however to give Mr Mulligan a short period of time before this decision comes into effect to ensure that he does not unintentionally breach the Civil Aviation Act and to permit him to arrange his affairs. To that end I will set aside the decision under review with respect to these licences, but only to enable the making of a decision in substitution that will cancel his flying licences with effect at midnight 7 days after the publication of these reasons.

93.I have considered whether I ought permit Mr Mulligan to retain his licences but to impose conditions upon him. Ultimately I have come to the view that it is not appropriate to adopt such a course having regard to my conclusion that he is not a fit and proper person.

94.Similarly I have considered, but rejected, the notion of suspending the licences. I think that Mr Mulligan ought be permitted, at some time in the future, to demonstrate that he is a fit and proper person to again hold flying licences. I cannot say when that will be and thus it would be wrong for me to simply impose an indefinite period of suspension on Mr Mulligan’s licences. I would, however, strongly suggest that when the time comes the Authority might usefully display a more helpful attitude that that demonstrated by its conduct in this case. Whilst I do not suggest that anyone other than Mr Mulligan is responsible for his conduct, I am sure that Mr Mulligan will consider, with some justification, that the actions of the Authority in January 2005 and following contributed significantly to the position that he finds himself in.    

95.It does not seem to me however that Mr Mulligan’s student pilot licence and flight radio telephone operation licence ought be cancelled. The conduct of Mr Mulligan was conduct in relation to flying. It seems petty to cancel those other licences, particularly where I consider that Mr Mulligan ought be permitted to return to flying once he demonstrates an appreciation of the need to comply with the statutory framework.

96.I was pressed by Mr Ribbands with the decision in Repacholi and Civil Aviation Safety Authority [2003] AATA 573 and this passage at [95]

In these circumstances cancellation of the applicant’s pilot licence, thereby jeopardising his aviation business and livelihood, can only be regarded as grossly excessive and unreasonable and, therefore, highly inappropriate.

97.I accept that it is relevant for me to bear in mind the serious consequences for Mr Mulligan of a decision to cancel his pilot’s licences, however I do not read the remarks quoted above as requiring the Tribunal to apply any different or lesser standard to a pilot who relies upon a licence for his or her livelihood. Rather I read the Tribunal as saying no more than that in the circumstances of that case the conduct found did not warrant cancellation which would have the effects stated. It seems to me to be no more than an application of the well-known  principle in Briginshaw v Briginshaw (1938) 60 CLR 336 at 343-344 where Latham CJ said,

The standard of proof required by a cautious and responsible tribunal will naturally vary in accordance with the seriousness or importance of the issue.  

98.In the result I will set aside the decision of 27 October 2005 and will decide, in substitution for that decision, that the applicant’s commercial pilot (helicopter) and private pilot (aeroplane) licences be cancelled with effect from 12 midnight on 2 August 2006.

I certify that the 98 preceding paragraphs are a true copy of the reasons for the decision herein of  Deputy President P E Hack SC

Signed:         ......................Signed...............................................
  Leisa Pendle, Associate

Date/s of Hearing   22, 23, 24 May 2006    
Date of Decision   26 July 2006
Counsel for the Applicant          Mr Ribbands
Solicitor for the Applicant           Mr J Maitland, Grundy Maitland & Co Lawyers
Counsel for the Respondent     Mr Harvey
Solicitor for the Respondent      Mr G Parkin, Department Advocate