Re Repacholi and Civil Aviation Safety Authority

[2003] AATA 573

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2003] AATA 573

ADMINISTRATIVE APPEALS TRIBUNAL      )

)           No W2002/217

GENERAL ADMINISTRATIVE  DIVISION		)
Re		GERALD KEITH REPACHOLI

Applicant

And CIVIL AVIATION SAFETY AUTHORITY

Respondent

DECISION

Tribunal Associate Professor S D Hotop, Deputy President
Air Marshal I B Gration, Member

Date18 June 2003

PlacePerth

Decision The Tribunal sets aside the decision under review and, in substitution therefor, decides that the applicant’s commercial pilot (aeroplane) licence, private pilot (aeroplane) licence and restricted private pilot (aeroplane) licence (No 019178) should not be cancelled.

…..........(sgd S D Hotop)...........................

Deputy President

CATCHWORDS

CIVIL AVIATION – commercial pilot (aeroplane) licence – applicant executed take-off in float plane from towed trailer at airport – applicant had previously contravened Regulations and been convicted of aviation-related offences – whether applicant contravened Act or Regulations in executing take-off and subsequent manoeuvres – whether applicant failed in his duty with respect to any matter affecting safe or efficient navigation or operation of aircraft – whether applicant not a fit and proper person to hold pilot licence – whether applicant’s pilot licence should be cancelled

Civil Aviation Act 1988 s 20A

Civil Aviation Regulations 1988 regs 5.09, 92(1), 157(1)(b), 166(1)(g), 269(1)

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

Maxwell v Dixon [1965] WAR 167

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

REASONS FOR DECISION

18 June 2003	Associate Professor S D Hotop, Deputy President Air Marshal I B Gration, Member
Introduction

1. This is an application by Gerald Keith Repacholi (“the applicant”) for review of a decision of a delegate of the Civil Aviation Safety Authority (“CASA”), dated 19 June 2002, cancelling his commercial pilot (aeroplane) licence, private pilot (aeroplane) licence and restricted private pilot (aeroplane) licence (No 019178) (“pilot licence”). That decision was made pursuant to reg 269(1) of the Civil Aviation Regulations 1988 (“the Regulations”) made under s 98 of the Civil Aviation Act 1988 (“the Act”).

2. At the hearing the applicant was represented by Mr J Langmead of Senior Counsel and Mr P Berman of counsel, and CASA was represented by Mr B Shields of counsel. The Tribunal had before it the statement and accompanying documents (“T documents”, T1-T48, pp1-220) (with the exception of certain deletions therefrom agreed between the parties) lodged by CASA in accordance with s37 of the Administrative Appeals Tribunal Act 1975, and various exhibits tendered in evidence by the applicant (Exhibits A1-A24) and by CASA (Exhibits R1-R3). Oral evidence was given by the applicant and by the following additional witnesses: Denis Repacholi, Kelvin Dillon, Sharon Miller, Barry Foster, Richard Gray, Daniel Griffiths, Winston James, Helen Nelligan and Michael Faro (who were called by the applicant), and by Terence Farquharson, William John Dolby and Richard Seager (who were called by CASA).

The Factual Background

3.       The relevant factual background to the abovementioned decision of 19 June 2002 and the present application for review of that decision, as appears from the T documents and about which there is no dispute between the parties, is as follows.

4.       A private pilot licence (No 019178) was first issued to the applicant on 21 April 1966.  (T8, p32; T15, p89)

5.       On 6 September 1984 the applicant’s private pilot licence was suspended on the ground of certain breaches by him of the (former) Air Navigation Regulations involving alleged reckless flying of a Cessna 188 aeroplane and allegedly threatening another pilot with a firearm.  The applicant was formally cautioned in relation to those matters and the suspension of his licence was revoked in October 1984.  (T4, pp14-15)

6.        On 30 January 1987 the applicant’s private pilot licence was suspended on the ground of certain breaches of the Air Navigation Regulations involving commercial aviation operations allegedly conducted by him without a commercial pilot licence.  On 28 February 1987 the applicant’s private pilot licence expired while under suspension.  (T8, pp33-34)

7.       On 28 May 1987 the applicant was convicted in the Perth Court of Petty Sessions of breaches of the Air Navigation Regulations involving carrying a person in a part of an aircraft not designed therefor, low flying, conducting commercial aviation operations without a commercial pilot licence, operating an aircraft without a maintenance release, and operating a detained aircraft.  (T47, p216)

8.       On 13 October 1987 the applicant applied for a private pilot licence.

9. On 16 November 1987 the applicant was convicted in the Perth Court of Petty Sessions of an offence under s86 of the Telecommunications Act 1975 in that he made a menacing telephone call to the Assistant Regional Director, Flight Standards, Department of Transport and Communications. (T47, p216)

10.     The applicant’s application for a private pilot licence was refused by a delegate of the Secretary to the Department of Transport and Communications on 15 December 1987 on the ground that he was “not a fit and proper person to have the responsibilities and exercise and perform the functions and duties of the holder of a private pilot licence”..  (T7)

11. On 14 December 1989 the applicant was convicted in the Perth Court of Petty Sessions of breaches of the Regulations involving low flying, flying an unregistered aircraft, flying an aircraft without a pilot licence, reckless flying, and using a detained aircraft. (T47, p216)

12.     On 19 January 1990 the applicant applied to the (former) Civil Aviation Authority (“CAA”) for a student pilot licence.  On 20 March 1990 a delegate of the CAA refused to issue a student pilot licence to the applicant on the grounds that he was “not a fit and proper person to have the responsibilities and exercise and perform the functions and duties of a holder of a student pilot licence” and that he had “made in the application a statement that was false and misleading in a material particular, namely, that he falsely answered “No” to the question: “Have you ever been refused any Australian pilot licence or flight crew licence?”  On 26 April 1991 the Tribunal affirmed that decision.  (T9, T10)

13. On 26 March 1991 the Full Court of the Supreme Court of Western Australia, on appeal from the decision of a single judge of that court, granted, on the application of the CAA, a permanent injunction against the applicant restraining him from committing breaches of the Regulations by flying an aircraft without a licence and by flying an unregistered aircraft. (T11)

14.     On 30 October 1991 the applicant was convicted in the District Court in Perth of attempting to defeat or pervert the course of justice, and was sentenced to 1 year 11 months imprisonment, to be released after 10 months upon entering into a recognisance of $10,000 to be of good behaviour for 4 years.  (T47, p217)

15.     On 6 October 1993 the applicant applied for a commercial pilot licence, and a commercial pilot licence was issued to him by the CAA on 15 October 1993.  (T12, T15, p89)

16.     On 10 February 1995 the CAA approved, under s82.0 of the Civil Aviation Orders made pursuant to reg 5 of the Regulations, the applicant’s appointment as Chief Pilot of Repacholi Aviation Pty Ltd. (T15, p90)

17. By Minute dated 1 March 2002 Terence Farquharson, Area Manager, West Area Office, CASA made a recommendation to John Slaughter, Acting General Manager, General Aviation Operations, CASA that the applicant’s pilot licence be suspended under reg 268 of the Regulations pending an investigation into alleged breaches of ss20A(1) and 20A(2) of the Act and regs157(1) and 166(1) of the Regulations by the applicant in an incident on 10 January 2002. (T22)

18. On 5 March 2002 Ian Ogilvie, General Manager, General Aviation Operations, CASA gave written notice to the applicant that, with effect from that date, he had suspended his pilot licence under reg 268(1) of the Regulations pending an investigation into alleged breaches of ss20A(1) and 20A(2) of the Act and regs 157(1)(b) and 166(1)(g) of the Regulations by him in an incident on 10 January 2002 in which he allegedly flew Cessna 172 aircraft VH-THD from a trailer attached to a truck at Jandakot Airport in Western Australia. (T28)

19.     On 25 March 2002 William John Dolby, Flying Operations Inspector and Team Leader, CASA made a written statement  whose contents (omitting the attachments) are as follows:

“I am a Level 2 Flying Operations Inspector employed with the Civil Aviation Safety Authority and based at their Perth office.  I am also the Team Leader, Flying Operations and my duties involve the management of a team of Flying Operations Inspectors performing surveillance functions of the civil aviation industry in Western Australia.

I am the holder of an Airline Transport Pilot Licence (ATPL) number 171250.  I am the holder of a command multi engine instrument rating, a grade 1 instructor rating and I am endorsed to fly numerous multi engine aircraft types.  I have flown a total of approximately 9350 hours.

On about 16 January 2002, I received some information that a Cessna 172 (C172) floatplane had taken off while being towed on a trailer by a truck down the runway at Jandakot Airport.  I tasked Flying Operations Inspector Richard (Rick) Seager to make some enquiries about this information.

On the same day, I received a telephone call from person who identified himself to me as Gerald Repacholi.  I know Gerald Repacholi as the owner and Chief Pilot of Repacholi Aviation, which is authorised under an Air Operators Certificate to conduct Aerial Work and Charter operations.

Gerald was seeking information about a matter that he and I had discussed before Christmas 2001 that concerned gaining approval from the Swan River Authority to conduct water operations in his floatplane, a C172.  I recall that he had also discussed with me an option of taking off from land in his floatplane using some sort of doley (sic) set up.  He made no mention of using a trailer towed by a truck in that discussion.

During the telephone call on 16 January 2002 I asked Gerald whether he had been the pilot of the C172 floatplane that I heard had taken off from a trailer being towed by a truck at Jandakot Airport.  He left me in no doubt that he had been that pilot and said words to the effect that he had.  I told him that he was a silly bugger, or words to that effect and he responded that he was the pilot of that aircraft.  He also giggled or sniggered as he told me this.

Rick Seager was on leave when I emailed my request to him to make further enquiries.  It was sometime in February 2002 while Rick Seager was conducting the investigation that I heard about a videotape had been taken of the take-off at Jandakot involving the floatplane and was rumoured to be in wide circulation.

On 27 February 2002, Rick showed me a copy of a videotape that had been delivered to the front counter of the CASA office at Perth airport.

I watched this video and I can say that the footage depicted a C172 aircraft fitted with floats being towed on a trailer by a small truck onto the runway at a place I recognised as Jandakot Airport.  The video footage showed the truck tow the aircraft along the runway in a southerly direction until the aircraft had gained sufficient airspeed to take off from the trailer.  The engine noise of the aircraft is clearly heard in the video.  The aircraft took off over the top of the truck and continued in a shallow climb until it reached about 100 feet above ground level.  It then began a 180° turn to the left and flew parallel to the runway.  The footage then showed the aircraft fly at high speed back over the runway in a southerly direction at about 100 feet above ground level.

With this information and the conversation I had had with Gerald Repacholi, I informed the Area Manager, Terence Farquharson.  A decision as to what course of action we should take was made and I drafted a Notice of Licence Suspension under Civil Aviation Regulation 268.  This Notice set out the Facts and Circumstances upon which CASA relied in coming to our decision.

The Notice of Suspension was forwarded to Canberra for signing by the Delegate on 1 March 2002.  On 5 March 2002, I received confirmation that the Delegate had signed the notice and it was to be faxed to Gerald Repacholi that day.

At 2.15pm on 5 March 2002, I received a telephone call from a person who identified himself to me as Gerald Repacholi.  He wanted to know whether I had done the investigation into the incident about the take-off from the back of a truck.  I said that I did not carry out the investigation but personnel from my office had done so.  He asked who within the office had done so.  I told him that I was not at liberty to give him that information.  By this time he was very agitated and threatening and said that as a result of not telling him who investigated the incident he said, ‘I’ll put you on my list, Number 1’.

He then launched into a series of abusive and threatening sentences.  He said ‘every bastard better look over your shoulder’, and ‘no one will know what I’ll do next’.

Gerald asked me who my supervisor was and when I told him he demanded that I had better get Terry Farquharson down to his hangar at Jandakot Airport within the hour.  I told him that Terry would not be able to do so.  He then continued abuse and threatening comments including a suggestion that he had asked for help from CASA but hadn’t gotten any and then we ‘jumped all over him’.  I told him that on the evidence we had, we had no choice but to act.

Early on 6 March 2002, Terry Farquharson and I had a meeting with Denis Repacholi and Gerald’s partner, Helen at the Perth office.  During the meeting, we were interrupted and told that Gerald Repacholi was on the phone and wanted to speak to Denis.  He left the room and a short time later, returned crying and said ‘we’re going’ or words to that effect.  Helen and he abruptly left.

On the afternoon of 15 March outside Hearing Room 2 of the Administrative Appeals Tribunal in Perth where I was sitting awaiting to be called as a witness to Gerald Repacholi’s stay of a CAR 268 hearing, Gerald Repacholi walked up to me, stopped, squared up to me and intimidated me by staring me in the eye without saying one word or moving in any way. I returned the stare and also said nothing.  After about a minute he broke eye contact and went further down the hallway to obtain a cup of water.

On return he again stopped, squared up to me, holding the cup of water in his hand.  He then stared at me in an intimidating manner and then made a slight guttural sound as if he was about to spit on me along with obvious mouth movements which left me in no doubt that he was contemplating spitting on me.  I then said: ‘why don’t you’ and he laughed out loud and went on his way.

On the evening of 15 March 2002 at about 8.35 pm I received a brief intimidating telephone call from an unidentified person whose voice I recognised as being that of Gerald Repacholi.  He said something like: ‘Is that you John’ and before I could check myself I replied with ‘Yes’.  He then said something like: ‘Just checking for now’ and hung up.

The nature of the comments, the intimidating manner, abuse and threats by Gerald Repacholi has left me very concerned for the safety of my family and myself.  I am aware that other staff in our office have also received abusive and threatening phone calls from Gerald Repacholi.  These persons include Rick Seager and Hadyn Siggins.

Attached to this statement is a copy of my notes that I recorded during my conversation with Gerald Repacholi at 2.15pm on 5 March 2002.  It is marked with the letter ‘A’.  Attached and marked with the letter ‘B’ is a copy of my notes of a conversation with Denis Repacholi at 3pm on 5 March 2002.  I have attached a copy of an email from Anne Watson from Jandakot Airport Holdings confirming that aircraft VH-THD, a C172 took off from Jandakot at 5.22am on 10 January 2002.  That is marked with the letter ‘C’.”

(T34)

20.     On 21 March 2002 Hadyn James Siggins, Flying Operations Inspector Grade 1, CASA made a written statement whose contents (omitting the attachment) are as follows:

“I am a Grade 1 Flying Operations Inspector employed with the Civil Aviation Safety Authority (CASA) and based in Perth.

I am the holder of an Airline Transport Pilot Licence number 145273, the holder of a Grade 1 Instructor rating and a command multi engine instrument rating.  I am endorsed to fly numerous multi engine aircraft including the Cessna 441 Conquest and Fairchild Metro 3.  I have flown approximately 8800 hours in total.

On 5 March 2002, I returned from a meeting at about 3pm and noted that there was a message on my office phone.  I accessed the message and was shocked to hear that it was purely abuse and profanity.  The message was recorded on tape and said, ‘you’re a fucken’ germ, you’re a fucken’ weasel.  Get out into real life and learn how to fucking fly an aeroplane you arse-wipe.  I’m gonna be talking to you later’.  Knowing that CASA had suspended Gerald Repacholi’s pilots licence, and having been warned by my Team Leader that Mr Repacholi had already contacted the office and made some abusive comments, I believed the message was from Mr Repacholi.  Even knowing that, hearing the message shook me up quite a lot.

At about 3.30pm on the same day, I received a telephone call.  I was half expecting a call myself from Mr Repacholi.

I simply said, ‘Hello’.  The male person asked for me by name.  It was the same voice as the person who had left the earlier message on my phone.  I identified myself as Hadyn Siggins and the person began to abuse me in a similar fashion as the previous message.  In addition, he said words to the effect of, ‘I know where you live, I know when you finish work!’.

I promptly hung up the phone.  I reported this to my Team Leader and told him that I would be going home as the aggressive nature of the caller and what he had said greatly concerned me.

That evening, I resorted to having my brother sit with my teenage children because my wife and I had to go out.  When we returned home, I was given a message that a colleague, Rick Seager had telephoned me.  I responded to his call and was told that Mr Repacholi had told Mr Seager that Mr Repacholi was going to come around to my place that night.  I then called the state police at Central seeking advice.  I provided certain information to the police about a person named Gerald Repacholi.

Attached to this statement and marked with the letter ‘A’ is a copy of my diary page for 5 March 2002.”

(T35)

21.     On 21 March 2002 Terence Lindsay Farquharson, Area Manager, West Area Office, CASA made a written statement as follows:

“I am the Area Manager for the West Area office of the Civil Aviation Safety Authority (CASA) at Perth Airport.  The Area office is responsible for carrying out CASA’s core compliance and regulatory service functions in Western Australia and encouraging the industry as they apply to the general aviation segment of the aviation industry, including maintenance organisations.

I am responsible to the General Manager, General Aviation, for managing the office to ensure that it achieves the required performance and level of standardisation in all of its functions.

I am the holder of an Australian Commercial Pilot Licence, a Hong Kong Airline Transport Pilot Licence and a Seychelles Airline Transport Pilot Licence.  I have flown numerous multi engine aircraft and I am command endorsed on the following airline transport aircraft types: Boeing 707, Lockheed Tristar L1011, Boeing 747-200/300 and Airbus A340.  I have flown approximately 9500 hours in total.

In January 2002 the Area office became aware through industry rumour that a Cessna 172 (C172) floatplane had taken off from the runway at Jandakot Airport while being towed on a trailer being pulled by a truck.

This rumour was confirmed by the delivery of a videotape to the Perth office on or about 26 February 2002.  I watched this videotape and saw that it depicted a C172 aircraft fitted with floats being towed on a trailer by a small truck onto the runway at what appeared to me to be Jandakot Airport.  The video shows the truck accelerating down the runway to the south and the aircraft taking off from the trailer.

The aircraft then conducted a left turn at a height, which appeared to be well below 500 feet above ground level. The aircraft completed a 360° turn to overfly the runway at low height in the same direction as it had taken off. It appeared from the video that the actions of the pilot constituted breaches of section 20A(2) of the Civil Aviation Act 1988 and Civil Aviation Regulations (1988) 157(1) and 166(g) (sic).

On 1 March 2002, I met with my senior staff in relation to what action we should take in response to the video and our information that identified a local operator, Gerald Repacholi, as the pilot.  As a result of our discussion it was decided to draft a Civil Aviation Regulation (CAR) 268 Notice of Suspension of Gerald Repacholi’s pilot licences for signing by the delegate in Canberra.  It was finalised and forwarded to Canberra on 1 March 2002.

On 1 March 2002, in anticipation of a reaction from Gerald Repacholi following service of the Notice of Suspension, I rang the Australian Protective Services (APS) and the local state police at Belmont.  Inspector Paul Booth and Dave Gibson of the APS visited me later that day.

From our records, I can say that the Notice of Suspension was signed by the delegate in Canberra on 5 March 2002 and forwarded to Gerald Repacholi by fax on the same day.  At about 2.15pm our Team Leader Flying Operations, John Dolby gave me the details about a telephone call he had received from Gerald Repacholi.  As a result of this information, I contacted Inspector Paul Booth.

At 2.30pm I telephoned a group of Senior Managers in CASA head office in Canberra.  I was informed that Gerald Repacholi had left a message for the Director to telephone him within an hour.  I voiced my concerns to the Senior Management team and it was suggested that I contact the Australian Federal Police (AFP).

At the conclusion of that telephone call, I contacted the AFP and informed them of our concerns about the safety of our staff.

At 2.50pm Paul Booth arrived at my office.  I provided him with details of the conversation that John Dolby had had with Gerald Repacholi.

At around 3.10pm Rick Seager informed me that Gerald’s son Denis had called him.  At about 4pm my personal assistant put a call through to me from Gerald.  I put the call on speaker so that Paul Booth could hear the conversation.  Repacholi said words to the effect of, ‘you’ve gone too far – I’ve given you an hour to be in my hangar, be there!’  He said that he was in the vicinity of my office and was watching the office through binoculars.  I tried to remain clam and offered Gerald the opportunity to come into my office to discuss the situation.

He demanded to know why I didn’t just talk to him about the take off from the trailer rather than suspending his licence.  He began rambling a bit and demanded to know who was in the office with me.

He told me ‘to pick up the fucking handset’.  I told him that I would not do so.

The entire conversation was punctuated with expletives throughout.  He continually referred to a previous dealing between himself and two ex-employees with the Authority, Roy Skaife and Paul Nendick.  His reference to this included that CASA people often tell lies and particularly in court.

He cooled down somewhat and began to discuss various options including nominating another Chief Pilot.  He seemed to accept the procedures that CASA had to follow.  His conversation became rambling again and he claimed not to have broken the law and that he was a good pilot.  He stated that current pilots were of a poor standard and claimed that it was CASA’s fault.  He seemed to be taking a messianic stance with regard to his abilities as a pilot.

He said, ‘It doesn’t matter whether I have a licence or not, I have to make a stand and protest.  You have gone too far.  I will act in a most unpredictable way, when you least expect it’, or words to that effect.  I tried to calm him down and repeated my offer to come to my office to discuss the issue, but he said something like, ‘No, because I might incriminate myself’.

When Paul Booth was out of the office, Gerald said, ‘the way that people in government carry on, the people who blew up Hancock (from the WA Police CID) ought to be applauded’..  He indicated that all police and officials were scum and had no integrity and that they deserved all that they got.  He said that he should have gotten rid of Skaife and Nendick when he had the opportunity.

He said that he had flown before without a licence and that he wouldn’t need a licence to make one last flight.  This indicated to me that he was potentially going to do something silly.

He told me that it doesn’t matter whether people have silent (telephone) numbers, or not, he can get them, he has contacts.

Gerald spoke of his concern for his business and his position as Chief Pilot that CASA had affected.  I repeated that the CAR 268 Notice was only a suspension of his pilot licence and of his Air Operators Certificate or Chief Pilot approval.  When I continued to invite him to come in he refused and said, ‘I’m going to pull someone’s fucking head off over this’.

He eventually calmed down and said he would send his son and partner in to meet with me.  Before he hung up he said, ‘It will all be on your shoulders’, or words to the effect of (sic).  He repeated that things had gone too far to stop him now and that he had to make some statement that would make Australia sit up and take notice.

Following this conversation Paul Booth and I arranged for the office to close shortly after 4.30pm and for the staff to be escorted from the building.  I also arranged that an APS presence would be available between 8am and 8.30am the following morning.

At about 7.45pm Flying Operations Inspector Rick Seager contacted me.  He told me that Gerald Repacholi had telephoned him at home.

Early on 6 March 2002, I was made aware that several of my staff had received threatening telephone calls from a person they thought was Gerald Repacholi either on their work phones or at home.

During the morning, Denis Repacholi and Gerald’s partner, Helen Nelligan, visited me at the Perth office.  We were having a meeting to discuss the future possibilities of the business when my personal assistant interrupted us saying there was a telephone call from Gerald for Denis.  When Denis returned to the meeting he was visibly upset and simply said to Helen, ‘we’re going’.

Denis rang me later that morning to apologise.  I telephoned Denis on the morning of 7 March to inform him that a member of the State Security Unit may contact him.

At 10.15am my personal assistant told me that ‘Phil’ Booth was on the telephone.  I took the call and the person identified himself as Gerald Repacholi.  He accused me of harassing his son.  He said that CASA are Gestapo and fascist like.

Throughout this conversation, he referred to the previous encounter with the then CAA and former employees, Skaife and Nendick.  He accused Rick Koch (current Team Leader Airworthiness) of being a liar but understood that he had been forced to do so.

At one point he said that as a result of actions by Mr Skaife a pilot named Jan Beers had hanged himself.  He said that it was his duty to ensure that it never happened again.  He also said that he had ‘fixed’ Skaife and Nendick.

He told me that he intended to lodge an appeal for a stay application to the Administrative Appeals Tribunal, which would be heard next Wednesday.  I told him to contact our Area Legal Counsel about that.

He mentioned that he wanted to discuss the implications to his business and options for the appointment of a new Chief Pilot but said that it was a long drive from Jandakot to Perth.  He said he might just jump into an aircraft and fly from Jandakot to Perth.  I reminded him that his licence was under suspension and he replied that he didn’t care and did not need a licence to fly.

I have continued to liaise with the AFP and APS over this matter.  The state police have provided additional information about an approach by Repacholi to other persons who fear for their own safety.  These matters are all recorded on file.

I remain concerned for the safety of my staff and myself.  I feel that the actions of this person in making contact with my staff and variously threatening and abusing them has seriously affected their normal routine and has the potential to affect their commitment to their regulatory tasks.”

(T36)

22.     On 2 April 2002, Richard John Seager, Flying Operations Inspector, CASA made a written statement as follows:

“1.I am a Flying Operations Inspector Grade 2 employed with the Civil Aviation Safety Authority and based in Perth. My duties include the surveillance of low capacity Regular Public Transport operations in Western Australia to ensure compliance with the provisions of the Civil Aviation Act and Regulations. These responsibilities include the assessment of operational aspects of those operators and conducting of flight tests on pilots to ensure that they meet their particular licence standard.

2.I am the holder of an Airline Transport Pilot Licence (ATPL) which I obtained in 1992.  I hold a current command instrument rating and a Grade One instructor rating.  I am endorsed to fly numerous multi engine aircraft and have flown a total of 8520 hours.

3.On 31 January 2002, I returned to work after taking annual leave.  On that day I read an email from my Team Leader requiring me to make enquiries about information the office had received concerning an alleged take off of a Cessna 172 floatplane from a trailer towed by a truck down the runway at Jandakot Airport.

4.I made enquiries with various organisations and while all were aware of the event, one operator said words to the effect: ‘I’ve even seen the video’.  He did not have a copy himself.

5.Without any further action on my behalf, on 27 February 2002 a videotape was left on the front counter of the Perth office marked for my attention.  When I obtained this video I viewed it in our conference room and also showed my Team Leader.

6.The videotape depicted a Cessna 172 floatplane that was being towed on a trailer by a light truck onto a runway at an airport that I recognised as Jandakot Airport.  The video footage was shaky but unmistakeably showed the aircraft being towed down the runway by a light truck until it had sufficient airspeed to take off from the trailer.  The aircraft is then shown to conduct a left hand turn at a height well below 500 feet and commence a low level circuit.

7.The same aircraft then flew a low level pass down the departure runway at a height I would estimate as only about 100 feet.

8.I provided information resulting from my enquiries to the Team Leader in order that he could draft a Notice of Suspension letter to the person who our information indicated was the pilot of the aircraft, Gerald Repacholi.

9.I understand that the Notice of Suspension was forwarded to Gerald Repacholi on 5 March 2002.  On the afternoon of 5 March I received a voicemail message from a person who identified himself as Gerald Repacholi.  Gerald is personally known to me as I am the assigned Flying Operations Inspector to his organisation, Repacholi Aviation Pty Ltd at Jandakot Airport.  I have known Gerald Repacholi for approximately seven years.

10.The voicemail message indicated to me that Gerald was unhappy with CASA about the service of the Notice of Suspension but was not threatening or intimidating to me.

11.At about 7pm that evening, I received a telephone call at home from Gerald Repacholi.  He made some alarming statements during this call which I documented soon after the call and informed my Area Manager, Terry Farquharson by phone that night.

12.Among other things concerning CASA’s initiative of suspending his pilot licences, Gerald said, ‘I’ll fix John Dolby so he’ll never fly again’, and ‘I intend visiting Hadyn Siggins tonight to give him a talking to’.  He said this in a quite threatening manner.  I advised him to rethink his proposed actions and not to dig a hole for himself that he couldn’t get out of.  He replied that he intended to make a big hole and he would not be coming out of it.

13.He spoke at length about needing to make a statement through chaos and his support for Osama Bin Laden and his principle of centralising attention through chaos and fear.  During the call, I reminded him that he did not currently hold a licence but he said that he did not need a pilot licence as he only intended to fly once more when the timing was right.

14.He spoke at length about a previous conflict with the CAA and the then Area Manager Roy Skaife.  He said that he regretted not taking stronger action such as shooting Skaife and this present incident brought back all of his resentment to CASA and its underhand methods of doing business.

15.I told Gerald that CASA had a responsibility when we became aware of his floatplane take off at Jandakot and had evidence to support possible dangerous flying practices.  He listened to what I had to say but did not intend modifying his plan of chaotic action.  He stressed that events had gone too far and could not be stopped.

16.He told me that he intended making arrangements for his son Denis to take control of the business and to put in a new Chief Pilot.

17.…

18.I have received a number of phone calls from Gerald since 5 March 2002 about this matter and during each conversation Gerald has been rambling and full of innuendo.  He has not been specific about what he intends to do, just skirting about what he might be capable of doing.”

(T41)

23.     On 28 March 2002 a Clerk of the Court of Petty Sessions, Perth, on the application of William John Dolby, made an interim Violence Restraining Order against the applicant for the protection of William John Dolby, Hadyn Siggins and Terence Farquharson.  On 29 July 2002 a Misconduct Restraining Order was made by a Clerk of the Court of Petty Sessions, Perth for the protection of the abovenamed persons, such Order to expire on 29 March 2004.  (T42)

24.     By letter dated 28 March 2002, signed by Ian Ogilvie, General Manager, General Aviation Operations, CASA, the applicant was given a “Notice of Proposed Variation, Suspension or Cancellation of Licence Number 019178” and was allowed a period of 28 days in which to show cause why his pilot licence should not be varied, suspended or cancelled on the basis of the facts and circumstances set out in the Notice.  (T43)

25.     By letter dated 6 May 2002 the applicant’s solicitors responded to the abovementioned Notice.  (T44)

26.     By letter dated 19 June 2002, signed by Allan Frew, Acting General Manager, General Aviation Operations, CASA, the applicant was given a “Notice of Cancellation of Licence Number 019178” in the following terms:

‘NOTICE OF CANCELLATION OF LICENCE NUMBER 019178.

In a notice dated 28 March 2002 (‘the show cause notice’) you were asked to show cause why your commercial pilot (aeroplane) licence (‘CPL’), private pilot (aeroplane) licence (‘PPL’) and restricted private pilot (aeroplane) licence (‘RPPL’) number 019178 should not be varied, suspended or cancelled.

I have carefully considered all the evidence in this matter including the information provided by Grundy Maitland & Co in a letter dated 6 May 2002 (‘written response’).  On the basis of the evidence, I am satisfied that grounds exist which justifies the cancellation of your CPL, PPL and RPPL in accordance with regulation 269 of the Civil Aviation Regulations 1988 (‘CAR 1988’).

The facts and circumstances that were alleged in the show cause notice, my findings on those facts and circumstances, and taking into account all the available evidence, the grounds for my decision are set out below.

Facts and Circumstances

1.You are now, and at all times mentioned in this notice were, the holder of an Australian commercial pilot (aeroplane) licence, private pilot (aeroplane) licence and restricted private pilot (aeroplane) licence number 019178.

2.On 10 January 2002 you held a class 1 medical certificate valid until 29 September 2002

3.Your licence is endorsed authorising you to fly, amongst others, a Cessna 172 aircraft.

4.Your licence is endorsed with a Float Alighting Gear endorsement.

FINDING:  In the written response, you agreed with these facts and I find them established.

5.Cessna 172K, VH-THD(‘THD’) is an aircraft, which at all material times, was employed by Repacholi Aviation Pty Ltd in commercial operations.

FINDING:  In the written response, you disagreed with the facts alleged in paragraph 5 of the show cause notice suggesting that the aircraft was in fact used privately at all material times. You state in paragraph 19 of the written response that the purpose of the flight was to position the aircraft in order to conduct further tests. Having regard to CAR 2(7) and 206, I find that it was more likely than not that the aircraft was being used in a private operation at the time under CAR 2(7)(d)(viii).

6.On 10 January 2002 you allegedly flew THD from a trailer attached to a truck at Jandakot Airport.  At that time, THD was a float-equipped aircraft.

FINDING: In the written response, you agreed with these facts and I find them established.

7.On 10 January 2002 it appears that, having completed the take off in THD from the trailer at Jandakot Airport, you commenced a left turn below 500 feet above ground level.

FINDING:  In the written response, you disagreed with the facts alleged in paragraph 7 of the show cause notice stating, ‘the aircraft was manoeuvred in accordance with the correct technique in launching a floatplane from a trailer towed by an automobile.’  You give no explanation as to why you turned left below 500 feet above ground level following the take off from the trailer other than to suggest it was part of the correct technique.  You have not provided any evidence to support your position.  Further, a videotape of the incident clearly shows the aircraft maintaining runway heading for approximately 5 seconds while the aircraft established a normal climb then a turn to the left commenced at an estimated 100 feet above ground level.  Subregulation 166(1)(g) of CAR 1988 requires that an aircraft not alter heading after take-off below 500 feet above the terrain unless directed to do so by air traffic control or where the alteration is necessary due to the terrain.  I am satisfied that on the basis of the evidence you commenced a turn to the left below 500 feet above terrain and in doing so contravened subregulation 166(1)(g) of CAR 1988.

8. Further, it appears that you then completed a high speed, low level fly by at Jandakot Airport. Information provided to CASA indicates that the height of the aircraft was less than 100 feet above ground level.

FINDING: In the written response you disagreed with the facts alleged and indicated that a slow speed low fly by was conducted to enable engineers to inspect the floats.

In considering the written response I have had my technical staff review the videotape to establish the aircraft’s approximate speed, height, configuration and position in relation to the runway. From observation of the videotape the aircraft is clearly not being flown for the purposes of a maintenance observation of the float system by ground based staff. The aircraft is heard to be developing high engine power, the aircraft is in a ‘flaps up’ high speed configuration, the speed of the aircraft is at or above normal cruise speed and the location of the aircraft appears over the runway at approximately 100 feet above ground level. As the aircraft passes the centre area of the runway it is observed to be at a height estimated to be 100 feet above ground level or less and to rock the wings several times and then sharply pull up and turn away at a low height.

If you were conducting a low speed fly by for the purposes of a maintenance inspection the aircraft should have been configured with flaps down and flown at as slow a speed as possible so as to enable the observers to have time to make effective observations. The aircraft should also be flown as horizontally close to the observers as possible. The video evidence does not show observers inside the flight strip of the runway and in a position to make a constructive technical evaluation of the float system.

I am satisfied that this fly past was not for the purpose of a technical inspection. Your written response states that the aircraft was in a slow speed situation, however there is clear video evidence to demonstrate that the aircraft had sufficient energy to enable an abrupt pitch up manoeuvre which could only be accomplished by flying at high speed for an aircraft of its type in the float configuration.

I find that you deliberately flew THD down the runway 24 at Jandakot at an estimated height of 100 feet and by doing so contravened subreguatlion 157(1)(b) of CAR 1988, which prohibits an aircraft in this situation being flown below 500 feet.

9. The take off from the trailer appears to have been conducted without using any known aircraft performance data. There appears to be no evidence of you instigating procedures to prevent the aircraft from moving forward on the trailer, or preventative measures to stop an inadvertent collision with the vehicle and its occupant/s. By not doing so you endangered that person or persons.

10. From the matters set out above, I have reason to believe that you may have thereby contravened subsection 20A(1) of the Act by flying THD in a reckless manner such that you endangered the life of another person in that you flew THD from a trailer attached to a moving vehicle which was occupied by at least one person.

11. The take off from the trailer appears to have been conducted without using any known aircraft performance data. There appears to be no evidence of you instigating procedures to prevent the aircraft from moving forward on the trailer, or preventative measures to stop an inadvertent collision with the trailer and/or vehicle.

12. From the matters set out above, I have reason to believe that you may have thereby contravened subsection 20A(2) of the Act by flying THD in a reckless manner such that you endangered a person, being the driver of the vehicle, and/or the property of another person, being the trailer and the vehicle towing the aircraft.

FINDING: In the written response, you disagreed with the facts in paragraphs 9-12 maintaining that the take off was a correct technique and stating that reference was made to the performance data for a Cessna 172 XP equipped as a floatplane. Also quoted in the written response were rate of climb and take off speed figures for a weight of 2550 pounds. You indicated that the aircraft was rested in a cradle on the trailer, which prevented the aircraft from moving forward during the take off procedure.

Other than a few alleged aircraft performance figures, you provided no evidence that the technique you used to take off in THD on 10 January 2002 was in compliance with known aircraft performance data. No extracts of the aircraft performance data were included in the written response and no extracts from an owner’s operator manual were included showing the technique you describe as being acceptable. You had the opportunity to provide this evidence however you chose to (sic) or were not able to produce other than a few lines of alleged aircraft performance data applicable to a Cessna 172 XP floatplane. You do not indicate whether this alleged data is applicable to a Cessna 172 XP floatplane during take off from a waterway or whether it is applicable to a 172 XP floatplane taking off from a trailer being towed by a vehicle.

In paragraph 9 of the written response you also indicate that the aircraft was prevented from moving forward on the trailer and thereby did not present a danger to the vehicle or the person driving the vehicle.

You have not provided evidence as to how the aircraft was prevented from moving forward on the trailer. No evidence of you seeking engineering advice from a CASA delegate to permit the take off has been presented. No evidence is submitted to indicate how the aircraft was prevented from sliding off to the side, or even to the rear in the event of unforeseen events occurring.

I am satisfied that in taking off in THD from a trailer being towed by a vehicle at Jandakot Airport on 10 January 2002 you acted in a reckless manner and endangered another person, being the driver of the vehicle and the property of another person, being the trailer and the vehicle towing the trailer and have therefore contravened subsection 20A(2) of the Civil Aviation Act 1988. I am not prepared to conclude there was a breach of subsection 20A(1) because I am not able to say what the extent of the danger to the driver was.

13. I have reason to believe that you may have contravened paragraph 157(1)(b) of the CAR 1988 by conducting a low fly by at an estimated 100 feet above ground level or less.

FINDING: See the finding under paragraph 8.

14.I have reason to believe that you may have contravened subregulation 166(1)(g) of CAR 1988 by turning left after take off below 500 feet above ground level.

FINDING: See the finding under paragraph 7.

15.Subregulation 138(1) of CAR 1988 requires the pilot in command to comply with a requirement, instruction, procedure or limitation concerning the operation of the aircraft that is set out in the aircraft’s flight manual, if a flight manual has been issued for the aircraft. The Cessna 172 Pilot’s Operating Handbook is the flight manual issued for THD, as defined in regulation 54 of CAR 1988, and contains ‘Take-off Performance Charts’ to allow a pilot to determine the take-off distance required to achieve 50ft above the runway surface.

16.By taking off from the trailer attached to the truck it appears as though you were unable to determine the distance required to achieve 50ft above the runway, contrary to the flight manual and therefore contravened subregulation 138(1) of CAR 1988.

FINDING: In the written response you disagreed with the facts alleged and go into some detail to explain your reasoning in paragraphs 15 and 16(a)-(f) of the written response.

The procedure and technique for taking off an aircraft from a trailer being towed by a vehicle does not appear to be a recognised method of take off and the aircraft manufacturer has not included any performance charts in the aircraft flight manual.

Given that there are no procedures prescribed in the flight manual covering the type of take off conducted, I agree with your written response and find that you could not have contravened the provisions of subregulation 138(1) of CAR 1988.

17.Subregulation 92(1) of CAR 1988 relevantly states that an aircraft shall not take off from any place unless the aircraft can take off from the place in safety.

18.The truck towing the aircraft during its take off run was in very close proximity to the aircraft and therefore represented a serious flight safety hazard to the aircraft. With the truck occupying the runway it appears that the runway was unsafe for the purposes of taking off in an aircraft. It appears that you therefore contravened subregulation 92(1) of CAR 1988.

FINDING: In the written response you disagreed with the facts alleged in paragraph 18 and refer to the alleged aircraft data produced in paragraph 9 and 16(c) of the written response.

With no known take off performance data to refer to and no published take off procedure to conform with you could not have known that THD would have the ability to clear a vehicle only a few metres in front of the aircraft on lift off from the trailer. You have not provided advice as to how you could you (sic) have known that the combination would achieve sufficient speed for the take off in the length of available runway.

Despite the fact that on the 10 January 2002 a successful take off was accomplished from a trailer being towed by a vehicle there was no available evidence to suggest that the take off could be accomplished safely.

For the reasons stated above I find that you took off in THD on 10 January from a place, that place being the trailer towed by the vehicle, that was not safe for take off. In doing so I am satisfied that you contravened subregulation 92(1) of CAR 1988.

19.It appears that the purpose of the flight from Jandakot on 10 January 2002 was to position THD on a waterway suitable for commercial operations and that you, as the pilot of THD, were thereby on duty with Repacholi Aviation Pty Ltd when you flew the aircraft.

20.Part A Section 1.17 of the Repacholi Aviation Pty Ltd operations manual, under the heading ‘Illegal Activities and Consequences’, relevantly states: ‘Accordingly, no flight crew or employee shall when on duty with the company, engage in any illegal activity’. It appears that by taking-off in THD on 10 January 2002 in the circumstances described above, you did not operate in accordance with this provision and you thereby contravened subregulation 215(9) of the CAR 1988.

21. Part D Section 5.1 of the Repacholi Aviation Pty Ltd operations manual details the procedures for sea plane operations. Under the heading of ‘Alighting Areas’ it states in part: ‘It is the company policy to use seaplane alighting areas which conform to the advisory information given in CAAP 92-1(1) Figure 6 and the information given at para 5.6. It is the responsibility of the pilot in command to ensure that the minimum requirements are met for all operations…’.. On the basis of the matters set out above, it appears that you did not operate in accordance with the provisions of CAAP 92-1(1) and that you thereby contravened subregulation 215(9) of the CAR 1988.

FINDING: See the finding under paragraph 5. Accepting the flight was private; I find there was no breach of subregulation 215(9) of the CAR 1988.

22. On the 5 March 2002 you were issued with a Notice of Suspension of Pilot Licence Pending Investigation (‘suspension notice’).

FINDING: In the written response you agree with this and I find it established.

23.At approximately 2.15 PM Western Standard Time (‘WST’) on 5 March 2002 it appears as though you telephoned the West Area Team Leader Flying Operations and allegedly threatened and intimidated him several times as a result of having been served the suspension notice. It is alleged that you said to the Team Leader Flying Operations: ‘every bastard better look over your shoulder’; ‘no one will know what I’ll do next’ and ‘I’ll put you on my list – number 1’.

24.As a result of having been served the suspension notice on or about 2.55 PM WST you telephoned Hadyn Siggins, a West Area Flying Operations Inspector (‘FOI’) and allegedly verbally intimidated and threatened him by saying: ‘I know where you live. I know when you are going home’ or words to that effect.

25.As a result of having been served the suspension notice on or about 3.15 PM WST on 5 March 2002 you telephoned the Area Manager, West Area Office and allegedly verbally intimidated and threatened him. During that conversation you are alleged to have said words to the effect that you applauded the persons who had bombed the car of the former CID officer, Mr Hancock. You allegedly said words to the effect that all police and officials were scum with no integrity and they deserved what they got. You also allegedly said you would take extreme action in response to the suspension notice and that it would be unpredictable. You allegedly threatened that we would not know when it would happen and that we should be looking over our shoulders. You also allegedly indicated to the Area Manager’s Personal Assistant that the Area Manager should not sit next to a window.

26.At approximately 7PM WST on 5 March 2002 you allegedly telephoned Rick Seager, a West Area FOI, at his home and amongst other things said in an intimidating and threatening manner words to the effect of: ‘I’ll fix John Dolby so he’ll never fly again’ and ‘I intend visiting Hadyn Siggins tonight to give him a talking to’.

27.An Administrative Appeals Tribunal (‘AAT’) hearing was held on 15 March 2002 to review the suspension notice (sic).

[The Tribunal notes that the hearing held on 15 March 2002 related to the applicant’s request for an order, pursuant to s 41(2) of the Administrative Appeals Tribunal Act 1975, staying the decision of 5 March 2002 to suspend his pilot licence. That request was refused by the Tribunal on 22 March 2002. (T39)]

28.During the AAT hearing at approximately 12.35 PM WST it is alleged that you approached the Team Leader Flying Operations faced squarely to him and then stared him in the eye in an intimidating and threatening manner for a significant period of time before moving on to obtain a drink of water from a water cooler further down the hallway.

29.On return from obtaining the water it is alleged that you once again approached the Team Leader Flying Operations faced squarely to him and then stared again at him in an intimidating and threatening manner. It is alleged that you then made a slight guttural sound and made as if to spit on him before laughing out loud and moving on.

30.At approximately 8.35 PM WST on 15 March 2002 a person telephoned the Team Leader Flying Operations at home. That person said words to the effect of: ‘Hey John is that you?’ and ‘just checking for now’ then hung up.

31. It is alleged that the person referred to in paragraph 26 was you and that the call was both intimidating and threatening in nature.

FINDING: In the written response, with the exception of paragraph number 27, you do not address any of the allegations other than to deny them totally. You acknowledge only contacting the Area Manager, West Area Office.

There is evidence in the form of verbal reports from a number of West Area Flying Operations Inspectors, the exact words of a threat to the Team Leader Flying Operations recorded in the form of a hand written note, and there was a witness from the Australian Protective Service present during the abusive and threatening conversation with the West Area, Area Manager. Further, there is an interim violence restraining order as a result of the allegations preventing you approaching or contacting three West Area officers.

With reference to the remarks in the written response under the heading ‘Grounds for Suspension or Cancellation’, you use this information to justify your position that you have the necessary skills to calmly and appropriately deal with the stresses of piloting an aircraft.

I acknowledge that you are an experienced and competent pilot in the sense of the physical skills needed to manipulate an aircraft. That is not an issue here. However, your words and actions were irrational, threatening and contemptuous. I consider it is open to me to find that these characteristics are contrary to the safe operation of aircraft and the prospect of you being willing to abide by the law generally and the aviation legislation in particular.

I am satisfied that the intimidating and threatening behaviour alleged in paragraphs 23 to 31 occurred.

REASONS FOR CANCELLATION OF LICENCE NUMBER 019178

Pursuant to subregulation 269(1) of CAR 1988, CASA may by notice in writing served on the holder of a licence, 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 has contravened a provision of the Act or the Regulations including those Regulations as in force by virtue of a law of a State;

b. that the holder of the licence fails to satisfy, or continue to satisfy, any requirement prescribed by, or specified under, the Regulations in relation to the obtaining or holding of such a licence;

c.that the holder of the licence has failed in his or her duty with respect to any matter affecting the safe navigation or operation of an aircraft;

d. that the holder of the licence 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

e. that the holder of the licence 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.

In relation to paragraph 269(1) of CAR 1988, I have reason to believe that you have contravened the following provisions of CAR 1988 and the Act:

a. subsection 20A(2) of the Act on one occasion;

b.        subregulation 92(1) of CAR 1988 on one occasion;

c.        subregulation 157(1) of CAR 1988 on one occasion; and

d.        subregulation 166(1) of CAR 1988 on one occasion.

In relation to paragraph 269(1)(d) of CAR 1988, I have found that in the matters referred to in paragraphs 9-12 of the show cause notice by taking off from a trailer being towed by a vehicle on the runway and in close proximity to the aircraft you did not operate the THD in a safe manner.

Further I have found that by taking off from the trailer attached to the vehicle the likelihood of the aircraft making contact with the vehicle was very high to the extent that the aircraft was not being operated safely.

In relation to paragraph 269(1)(d) of CAR 1988, I found that your actions as the pilot in command of THD on 10 January 2002 were not those of a fit and proper person to have the responsibilities and exercise and perform the functions and duties of a holder of a licence because of an apparent lack of judgment and scant regard for the safety of persons and property and the aviation laws.

I have found that your actions on 5 and 15 March 2002 of intimidation and threatening CASA officers during the course of their duty has further indicated to me that you are not a fit and proper person to hold a pilot licence. Your erratic and unstable behaviour indicates that you lack the skills to calmly and appropriately deal with the stresses of piloting an aircraft. Your behaviour has indicated such a contemptuous attitude towards CASA staff and the aviation laws they are required to administer that I do not believe that you will comply with those laws in the future.

CANCELLATION OF LICENCE

On the basis of the facts and circumstances detailed above I am satisfied that grounds exist for the variation, suspension or cancellation of your CPL, PPL and RPPL, in accordance with regulation 269 of the CAR 1988. A CPL, PPL and RPPL holder is required to have a comprehensive understanding of the Act and CAR 1988 in order to safely conduct flying operations. In view of your demonstrated ignorance, or lack of understanding of some of these provisions and the breach thereof, your contemptuous attitude towards the aviation laws and CASA staff and your displayed erratic and threatening behaviour, I am of the view that you should no longer be permitted to exercise the privileges of a CPL, PPL and RPPL. I have therefore decided to cancel your CPL, PPL and RPPL number 019178 with effect the date of this notice (sic).

…”.

(T2)

27.     On 21 June 2002 the applicant lodged with the Tribunal an application for review of the abovementioned decision of 19 June 2002 to cancel his pilot licence. (T1)

The Applicant’s Evidence

28.     A witness statement of the applicant, filed on 23 August 2002, was tendered in evidence (Exhibit A3). The contents of that statement are as follows:

“1.       I am the applicant in this proceeding.

2.On 10 January 2002 I was the pilot in command of aircraft registered VH-THD (a Cessna 172XP equipped with floats) and conducted a takeoff at Jandakot Airport from a trailer towed down a runway behind a suitable vehicle. The takeoff was the result of considerable testing and planning, including the construction of fittings on the trailer. The takeoff went entirely according to plan, and was conducted in complete safety.

Licensed Aircraft Maintenance Engineer qualifications and experience

3. I have held the US Aircraft and Powerplant licence since around 1991. This is the equivalent of the Australian LAME or licensed aircraft maintenance engineer qualification.

4.In 1999 I obtained my Australian aircraft maintenance engineer’s licence. I am qualified on engines and airframes. I am qualified to work on wood and fabric as well.

Pilot qualifications and experience

5. I am a commercial pilot (licence 019178). I am also licensed in the USA with a commercial multi-engine instrument rating.

6. I am also rated to fly at night, and hold the Class 5 (Agricultural Night Spraying rating), and an ‘Agriculture 1’ rating.

7.I am endorsed to fly single engine aircraft under 5700kg, and a number of twin engine aircraft, including the Cessna 320, 310, 340 and 404, the Piper PA34, PA23 and PA31, the Beech Baron and the Travelair. I also hold special feature endorsements relating to pressurisation systems, float planes, tail wheel aircraft and retractable undercarriage.

8.I have over 8000 hours flying experience. I have an accident free record.

CASA approval of the applicant

9. Commercial Pilot. I first obtained my commercial pilot licence on 15 October 1993. The Civil Aviation Authority was required as I understand it to assess me as a fit and proper person to hold such a licence. But for this incident, neither CAA or CASA have varied, suspended or cancelled this licence at any time since it was granted to me, nor has either organisation threatened any such action or issued me with a ‘show cause’ notice. I have conducted my flying operations with safety and regard for the law.

10.Chief Pilot. I have operated as chief pilot of Repacholi Aviation Pty Ltd since 1994. I was director of this company continuously from 1995 to 2002.

11. This company has held an AOC continuously since 1993. I have been approved by CASA to hold the position of chief pilot for this company since around 1994-1995. I gave up the position in March 2002.

12.During these years, the company was under regular routine surveillance by CASA, and my performance of my duties as chief pilot was never the subject of any criticism or administrative action by CASA. My duties have included the supervision of agricultural and charter pilots, including seaplane pilots.

13. I make sure that pilots working for Repacholi Aviation Pty Ltd toe the line. I have never tolerated them breaking any regulations or doing anything that was unsafe.

14.Even though the takeoff about which CASA has complained took place on 10 January 2002, and my licence was suspended on 5 March 2002, CASA was content for me to remain chief pilot. I resigned as chief pilot, and as a director of Repacholi Aviation Pty Ltd in late March this year.

15. Regularly authorised to supervise inexperienced agricultural pilots.

16.Authorised to give float plane endorsements. Even though I do not hold an instructor rating, I have been authorised in writing by CASA to give float plane endorsements to various pilots. I have supervised the float plane training of a CASA flight standards officer. I was given approval by CASA to endorse a pilot for float plane operation after 10 January 2002, and after CASA had been told by me that I had flown off the trailer.

17.Banner towing approval. I have written approval from CASA to perform banner towing.

18.Licensed Aircraft Maintenance Engineer. I am the director of Transcoast Enterprises Pty Ltd trading as Westcoast Aircraft Maintenance. This company holds a certificate of approval from CASA to conduct aircraft maintenance. I am a director of this company. It has operated since around 1997. CASA has not had any cause to criticise its operations.

Dealings with CASA prior to 10 January 2002 regarding the proposed takeoff

19.In 1993, in the USA I performed a takeoff from a trailer in a Cessna 206 floatplane towed by a truck. It was quite a simple procedure.

20. In Minneapolis USA in November 1999 I witnessed a Cessna 180 floatplane takeoff from a trailer towed behind a ute.

21.I have also recently (before 10 January 2002) seen video of a Cessna floatplane taking off from a trailer, without incident or apparent difficulty.

22.Prior to 10 January 2002, I had for quite a number of years thought about using a trailer to enable a float plane to take off from a runway.

23.In recent years I had discussed the idea with a number of CASA officers.

24.In early 1997 I put the idea to Willey Heinze and Ivan Burrows, CASA airworthiness officers, while he was in the company hangar. Heinze said there were no regulations which would prevent such a takeoff.

25.On 10 December 2001, Rick Seager of CASA was conducting an audit of Repacholi Aviation Pty Ltd at Jandakot Airport, and I told him we were going to do a takeoff in a floatplane from a trailer towed behind a vehicle. He said he couldn’t see anything in the regulations to say we couldn’t do it. Two other people witnessed this conversation. I also remember Rick Seager telling us as he was leaving that we were running a good show.

26.Around December 2001 I also spoke to John Dolby of CASA about the planned takeoff. I am not sure of the date of this conversation, but I think it was after I had spoken to Rick Seager on the 10^th of December. I telephoned John Dolby, and as it turned out he was in Coolangatta when he took my call on his mobile. He told me he knew of no rules which would prevent the flight off the trailer.

27.On 17 December 2001 I wrote to CASA informing them of the intended takeoff in late December 2001. As it turned out, there were delays in preparing the aircraft, and it was not ready until January 2002.

28.I received no reply to my letter of 17 December 2001, and wrote again on 23 March 2002.

29.I received no reply to that letter either. I complained to the Commonwealth Ombudsman about CASA’s failure to reply to these letters.

30. I have learned that CASA claims to have received the 23 March 2002 letter, but not the 17 December 2001 letter. Both were posted in the ordinary course of the business of Repacholi Aviation Pty Ltd. I have a signed copy of each letter. The mail goes out once a day on business days.

31.A week or so before the actual takeoff, I also told Ray Ellis (a CASA airworthiness officer) of the intended takeoff.

32.Later in the day on 10 January 2002, after the takeoff and landing were safely completed, I rang CASA to inform Rick Seager that the procedure had been conducted safely and that everything went according to plan. Rick Seager was not available to speak to me, and I was put through to Ray Ellis. I told him the flight went well.

33.None of the above people from CASA ever suggested that the planned takeoff could not or should not be done.

34.I was of the view that as there was nothing in the regulations which prevented the takeoff, it was a matter of applying common sense to ensure that it could be done safely. If it could not have been done safely, then the idea would have to be abandoned. If it could be done safely, there was no reason not to do it.

Planning and preparation for the 10 January 2002 takeoff

35.The trailer used for the takeoff was a long bed trailer which is registered for road use. It is designed to carry over a tonne. It has a tare weight of 950kg, and a gross weight limit of 2000 kg. It has 4 wheels and a tandem axle. The trailer is 38 feet long from tow hitch to tail lights, and is 8 feet wide. It is designed for use at highway speeds. It has a brake system which is linked to the braking system of the truck towing it. Its data plate shows that it is required to be fitted with tyres of a speed category of not less than 120kph.

36.The axles on the trailer are fitted towards the rear like a normal semi trailer.

37.We conducted tests with the trailer on the highway, using 5 x 200 litre drums which weighed 1000 kgs. A Toyota Landcruiser was found not to have the required power, but the F100 truck with the 4.2 litre diesel engine performed very well. Acceleration tests were done measuring the distance required to accelerate to 100kph.

38.I reject the allegation in paragraph 27 of CASA’s ‘statement of facts and contentions’ that ‘the ability of the truck to accelerate to the required take-off speed was unknown.’ It was clearly established well before the flight.

39.The aircraft total weight (including empty weight of the aircraft, plus fuel and pilot) at the time of takeoff was approximately 875 kgs.

40.In addition to being a LAME, I am an experienced welder. A substantial frame was welded together to fix the aircraft on the trailer so that it could not slide backwards, forwards or sideways. The frame was securely fastened to the trailer. The frame was designed to have the aircraft in a nose down attitude.

41.With the aircraft mounted on the trailer:

a)    the distance between the front of the floats and the rear of the truck was 21 feet 4 inches;

b)    the distance between the front of the floats and the front of the truck was 38 feet 7 inches;

c)    the lowest point of the propeller arc was 67 inches above the ground.

42.Consideration was given to the effect if any of airflow over the F100 interfering with airspeed indication on the aircraft. The pitot tube and static vent were not in any disturbed airflow, and there was no interference with airspeed indication.

43.There were two radios in the aircraft – one VHF radio tuned to the Jandakot MBZ frequency, and the other radio was used to contact the occupants of the F100 truck. At all times there was direct communication between truck and aircraft.

44.The aircraft was hoisted onto the trailer. It was secured such that the engine could be test run with the trailer stationary. We could check mags, cycle the prop and run to max rpm whilst on the trailer.

45.The runway distance available was taken into account, and was entirely adequate for the takeoff. As a precaution, a ‘pull out’ point on the runway was established prior to the takeoff should it be needed. This was a point from which the truck could decelerate safely and come to a complete stop if the exercise had to be aborted for a reason such as malfunction of the truck engine. If I wasn’t happy with the takeoff, Denis and I had a pre-arranged procedure that I would cut the power and he could brake then stop.

46.The takeoff from the flatbed trailer was much safer in my view than a takeoff using a dolly.

The takeoff

47.I point out that the aircraft VH-THD is a high performance aircraft with very good short field capabilities on land or water.

48.The mirrors of the F100 truck were arranged to permit the driver to view the aircraft through the centre mirror, and the left and right floats through the left and right mirrors. In addition, an observer, John Young, was a passenger in the F100. He knelt on the passenger seat and observed the takeoff as an additional safety precaution.

49.Prior to the takeoff the aircraft was pre-flighted, and the engine was warmed up for 15 minutes. Normal runup checks were done at the runup bay, and the aircraft was taken onto the runway.

50.It was arranged with Denis Repacholi, my son, who is a pilot and an AME and who was the truck driver, that he would call out truck speeds as he accelerated down the runway. I monitored airspeed as he did so, and gradually applied power to the aircraft engine.

51.At a safe flying speed, I rotated the aircraft which lifted cleanly from the trailer, and flew away normally.

52.      The exercise worked perfectly and exactly as planned.

53.I note that in paragraph 28 of CASA’s ‘statement of facts and contentions’ these words appear:

‘The aircraft may have moved forward on the trailer or collided with the vehicle and its occupant’.

54.      This is totally incorrect.

55.I note that in paragraph 28 of CASA’s ‘statement of facts and contentions’ these further words appear:

‘The aircraft’s behaviour at the point of applying the take-off power was unknown and the aircraft could have moved in any direction with catastrophic consequences.’

56.With appropriate flying speed, and takeoff power, there being no restriction on the normal operation of the aerodynamic controls of the aircraft, and no restriction on the aircraft rising from the trailer, the aircraft became airborne in response to the appropriate control inputs. This was entirely predictable, and is exactly what occurred. The aircraft could not have ‘moved in any direction’.

57.There was no risk of inadvertent collision with the truck. The aircraft was located on the trailer in a manner which prevented it moving forward, and had the exercise been aborted, it could have been done in complete safety.

58.The truck and its occupants were not in any danger during the take off, as the aircraft predictably climbed immediately it left the truck, and the truck accelerated away as the aircraft left the trailer. That the aircraft would safely climb clear of the accelerating truck, was always known in advance of the takeoff.

59.The trailer suspension resulted in a smooth ride for the aircraft during the period while it accelerated to takeoff speed. Compared to the jolts experienced in typical water takeoffs, there was much less stress on the airframe and its various components during the towed takeoff.

The turn after takeoff

60.I conducted a turn after takeoff which was entirely within the capability of the aircraft, entirely within my capability as a pilot, and which did not present any threat to any aircraft, to any persons or property on the ground, or to me.

61.I perform steep turns at low level at night in a fully loaded aircraft, as an agricultural pilot. The turn at Jandakot was a mild turn with far greater margins of safety than turns typically and frequently performed in ag flying.

62.I made full allowance during the turn for the fact that the aircraft was fitted with floats.

The safety check conducted by ground crew after the takeoff

63.After takeoff I turned and performed a circuit, then flew a low pass over runway 24 to permit my son Denis Repacholi to inspect the aircraft as we had arranged prior to the takeoff, as an additional safety measure. I was going to proceed from Jandakot to a water landing.

64.Denis reported by radio to me that the aircraft appeared entirely sound.

Contact with CASA after the licence suspension

65.I complained to a number of CASA officers in March 2002 after my commercial licence was suspended.

…

71.I note that in the letter from CASA dated 19 June 2002 notifying me that my commercial pilot licence was cancelled, on page 9 the following view is expressed:

‘…you lack the skills to calmly and appropriately deal with the stresses of piloting an aircraft.’

72.My flying record speaks for itself – 8,000 hours of accident-free flying, much of it in agricultural flying which has all the dangers associated with low flying. I have demonstrated over many years that I clearly possess and consistently apply the skills required to deal with the stresses of piloting an aircraft.

My medical fitness to fly

73.I still hold a current class 1 medical certificate.

74.CASA has never taken or threatened any action in respect of my medical certificate or status.

My conduct as a pilot since obtaining my commercial pilot licence in October 1993

75.I have flown full time since obtaining my commercial pilot licence in October 1993. My LAME qualification has never been anything more than an adjunct to my flying career.

76.…

77.I reject what is alleged in paragraph 15 of CASA’s ‘Statement of Facts and Contentions’. While conducting agricultural flying at Jandakot Airport I did not engage in any manoeuvre that was reckless of dangerous. I was not charged in relation to the flight, nor was any administrative action taken against me by CASA.

78.…

79. I note that in the letter from CASA dated 19 June 2002 notifying me that my commercial pilot licence was cancelled, on page 9 it is said that I have a contemptuous attitude to aviation laws. There is no basis for this statement, and it is not true. I have a good history of regulatory compliance as a commercial pilot and as chief pilot of Repacholi Aviation Pty Ltd.

80. My career since 1993 as a commercial pilot has demonstrated continuous safe flying and regulatory compliance.  My career since 1993 has also seen CASA place considerable and justified confidence in me as indicated by my continuously held chief pilot approval from 1994 to 2002, and by the other approvals and authorities which CASA gave to me.

Effect on my ability to earn a living if my commercial licence remains cancelled.

81. Flying commercially is my chosen profession and my means of earning a living.  If my licence is not given back to me, that will significantly affect my ability to earn a living.”

29.     In his oral evidence the applicant verified the contents of the above statement.

30.     The applicant said that in December 2001 he contacted a Dan Griffiths in the United States of America (“USA”), whom he had met at flying schools and in the course of flying in the USA and who he knew to be an experienced float plane pilot, and discussed with him the proposed take-off of a float plane at Jandakot Airport.  He said that Mr Griffiths gave him oral advice and, a few days later, sent him a fax containing advice on how to carry out such a procedure.  That fax, dated 12 December 2001, was tendered in evidence (Exhibit A4).  He confirmed that the procedure followed for the take-off of Cessna aircraft VH-THD, which he performed at Jandakot Airport on 10 January 2002, conformed exactly with the advice given to him by Mr Griffiths.

31.     The applicant described the “cradle” on the trailer on which Cessna aircraft VH-THD was carried for the purpose of the take-off on 10 January 2002 and he confirmed that, when properly positioned on that cradle, the aircraft was restrained from moving forwards, backwards or sideways while being towed on that trailer.  He also confirmed that, while being towed on that trailer immediately prior to the actual take-off on 10 January 2002, the aircraft did not move in any direction.  Seven photographs (taken from different positions) showing the aircraft resting on the cradle on the trailer were tendered in evidence (Exhibit A2).

32.     The applicant described the take-off of Cessna aircraft VH-THD on 10 January 2002.  He said that the take-off occurred at approximately 5.30am in “beautiful” weather conditions with no turbulence and a breeze of “maybe a couple of knots” velocity.  He said that the aircraft was in a “nose down, negative to the air-flow … virtually in a stall position” on the trailer which was being towed along the airport runway and, although it could safely take off from water at a speed of 40-45 knots, he waited until the trailer reached a speed of 55 knots before deciding to take-off.  He added:

“… as I applied the power, I just pulled back and it just popped so cleanly off.”

He said that while the trailer and aircraft were being towed by a truck along the runway immediately prior to take-off, he was in constant communication with the driver of the truck (his son, Denis).  He said that prior to the commencement of the take-off procedure he and Denis had agreed upon a “decision point” on the runway for aborting the take-off.  That point, he added, was about 2000 feet along the runway (which he estimated to be about 3000 feet in length), thus leaving a distance of about 1000 feet – which he described as “plenty to slow down on”.  In the event he said that he decided to take off after travelling about 1500-1600 feet along the runway and he reiterated the statement made in paragraph 52 of his witness statement that:

Penalty:          25 penalty units.

…”.

“157    Low flying

(1)       An aircraft must not fly over:

(a)any city, town or populous area at a height lower than 1,000 feet; or

(b)       any other area at a height lower than 500 feet.

Penalty:          50 penalty units.

…

(4)       Subregulation (1) does not apply if:

(a)through stress of weather or any other unavoidable cause it is the essential that a lower height be maintained; or

(b)the aircraft is engaged in private operations or aerial work operations, being operations that require low flying, and the owner or operator of the aircraft has received from CASA either a general permit for all flights or a specific permit for the particular flight to be made at a lower height while engaged in such operations; or

(c)the pilot of the aircraft is engaged in flying training and flies over a part of a flying training area in respect of which low flying is authorised by CASA under subregulation 141(1); or

(d)the pilot of the aircraft is engaged in a baulked approach procedure, or the practice of such procedure under the supervision of a flight instructor or a check pilot; or

(e)the aircraft is flying in the course of actually taking-off or landing at an aerodrome; or

(f)        the pilot of the aircraft is engaged in:

(i)        a search; or

(ii)       a rescue; or

(iii)      dropping supplies;

in a search and rescue operation; or

(g)       the aircraft is a helicopter:

(i)operated by, or for the purposes of, the Australian Federal Police or the police force of a State or Territory; and

(ii)engaged in law enforcement operations; or

(h)the pilot of the aircraft is engaged in an operation which requires the dropping of packages or other articles or substances in accordance with directions issued by CASA.”

“166     Operation on and in the vicinity of an aerodrome

(1)The pilot in command of an aircraft which is being operated on or in the vicinity of an aerodrome shall:

… 

(g)after take-off, not alter heading from the take-off heading at a height less than 500 feet above the terrain unless Air Traffic Control directs the alteration or unless the alteration is necessary due to the terrain.

…”.

“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, certificate or authority 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;

…

(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 or efficient navigation or operation of an aircraft;

(d)that the holder of the licence, certificate or authority is not a fit and proper person to have the responsibilities and exercise and perform the functions and duties of a holder of such a licence or certificate or an authority; or

…”.

The Issues

64.     The issues for the Tribunal’s consideration and determination in this matter are:

· whether, on the evidence and material before it, the applicant has contravened any of the following provisions of the Act:

-s20A(1), s20A(2);

· whether, on the evidence and material before it, the applicant has contravened any of the following provisions of the Regulations:

-reg 92(1), reg 157(1)(b), reg 166(1)(g);

· whether the applicant has “failed in his…duty with respect to any matter affecting the safe or efficient navigation or operation of an aircraft”, within the meaning of reg 269(1)(c) of the Regulations;

· whether the applicant is “not a fit and proper person to have the responsibilities and exercise and perform the functions and duties of a holder” of a pilot licence, within the meaning of reg 269(1)(d) of the Regulations; and

· whether the applicant’s pilot licence should be cancelled under reg 269(1) of the Regulations on any or all of the grounds specified in paras (a), (c) and (d) of reg 269(1).

65.     The parties made extensive oral submissions in relation to the abovementioned issues.  Those submissions have been carefully considered by the Tribunal but will not be set out in detail here.  They will, however, be adverted to in the following consideration of the issues, and findings.

Consideration and Findings

Did the applicant contravene s20A(1) of the Act?

66. The respondent submitted that the applicant had contravened s20A(1) of the Act on 2 occasions: first, in the course of weed-spraying operations at Jandakot Airport in 1999, and, secondly, in the course of the Cessna float plane take-off from a towed trailer at Jandakot Airport on 10 January 2002.

67. As regards the weed-spraying operations in 1999, the evidence before the Tribunal is clearly insufficient to support a finding that the applicant, in the course of those operations, operated an aircraft “in a careless or reckless manner so as to endanger the life of another person”, within the meaning of s20A(1) of the Act as in force at that time. Neither Mr James nor Mr Seager, who witnessed the incident at first hand, regarded it as sufficiently serious to warrant more than the counselling action which was taken by Mr James. Indeed, Mr James, who was at that time a CASA District Flight Operations Manager and Mr Seager’s superior officer, testified that his concern on that occasion was that the applicant was “flying within the prescribed distance from an occupied building” and that he “could overfly a built up area”, and that he did not recall regarding the applicant’s actions as reckless.

68. On the basis of the evidence before it, the Tribunal is not satisfied that the applicant contravened s20A(1) of the Act in the course of his weed-spraying operations at Jandakot Airport in 1999.

69.     As regards the Cessna float plane take-off from a towed trailer at Jandakot Airport on 10 January 2002, the Tribunal had before it the applicant’s evidence regarding his knowledge and experience of such take-offs in the USA, the evidence of the applicant and Denis Repacholi regarding the planning and preparations they carried out for the purpose of the take-off in question and regarding the take-off itself, and the evidence of Mr Griffiths regarding his extensive knowledge and experience of methods of float plane take-offs from land in the USA, and his opinion on the take-off executed by the applicant on 10 January 2002 based on his viewing of the video-tape of that take-off, and on other information regarding that take-off, supplied to him by the applicant .  The Tribunal also had before it the evidence of Messrs Farquharson, Dolby and Seager of CASA regarding their opinions on that take-off based on their viewing of a videotape thereof provided anonymously to CASA.

70.     The evidence of the applicant and of Denis Repacholi, regarding the planning and preparations which they undertook for the purpose of the relevant take-off and regarding the take-off itself, has been set out in detail above (see paragraphs 28-32, 35-37 and 40-41) and need not be repeated here.  The Tribunal accepts that evidence and, on the basis thereof, it is satisfied that the relevant take-off operation was well conceived by the applicant over an extensive period of time, and that, in the planning and preparation process, appropriate consideration was given to important safety aspects, including:

·     the added safety advantages of using a long wheel-base trailer with its own braking system, instead of a short trailer or a “dolly” (which are commonly used in the USA for conducting such take-offs);

·     the secure positioning of the aircraft in a nose-down attitude in a purpose-designed “cradle” securely fastened to the trailer so as to prevent any forward, backward or sideways movement of the aircraft;

·     the positioning of the aircraft on the trailer at a distance of over 21 feet from the rear of the towing vehicle such that any effect of disturbed airflow created by the towing vehicle on the aircraft and its instruments would be likely to be minimal;

·     the selection of an appropriate towing vehicle with the necessary power and acceleration, as determined by conducting simulated tests on a highway;

·     the determination of a “decision point”, for aborting the take-off, at a point about two-thirds down the runway, leaving a distance of at least 1,000 feet in which to bring the vehicle and trailer (with aircraft thereon) to a halt;

·     the fact that an experienced pilot (Denis Repacholi) would drive the towing vehicle and would be in constant radio communication with the pilot of the aircraft (the applicant);

·     the predetermination of a take-off speed some 10-15 knots higher than the flight manual approved take-off speed from land or water for that aircraft model, namely, 40 knots.

The Tribunal notes, however, that, according to the applicant’s own evidence, no pre-take-off tests were conducted to determine the actual airflow patterns around the towing vehicle and their effect on the aircraft immediately prior to take-off, or to determine the appropriate take-off speed or whether the selected “decision point” would allow for the vehicle and trailer (with aircraft thereon) safely to be brought to a halt.  In the Tribunal’s opinion, the conducting of such tests would have been prudent but the failure of the applicant to do so did not, having regard to the planning and preparation process that was undertaken by him, of itself compromise the safety of the proposed take-off procedure.

71.     The opinion of Mr Griffiths, based on his viewing of a videotape of the take-off and on other information regarding the operation provided to him by the applicant, as well as on his knowledge of the applicant’s aviation skills and experience and his extensive knowledge and experience of the methods of such take-offs in the USA, was that the take-off operation in question was conducted in a safe manner (see paragraph 42 above).  The Tribunal regards Mr Griffiths as well qualified to express that opinion and it attaches great weight to his evidence.

72.     As regards the evidence of Messrs Farguharson, Dolby and Seager, the Tribunal notes that none of them provided any proper basis for concluding that the take-off operation was unsafe.  Their initial opinion that is was an unsafe operation was apparently based on their viewing a videotape of the operation that was anonymously provided to CASA in late February 2002 following some inquiries made by Mr Seager regarding the incident, and without specific knowledge of the planning and preparations that had been undertaken by the applicant for the purpose of conducting the take-off and, indeed, without any awareness of the fact that similar take-off operations were commonly conducted in the USA.  In particular, Mr Dolby’s assessment of the take-off manoeuvre as unsafe and his pejorative descriptions of it as “stunt flying” and “experimental aircraft stuff” (see paragraph 58 above) were, in the Tribunal’s opinion, not based on sufficient information regarding the take-off operation as a whole but were, instead, apparently based largely on a videotape of a take-off manoeuvre with which he was totally unfamiliar and which he was too hasty to condemn.  The Tribunal also notes that Messrs Farquharson and Seager, in their oral evidence, were ultimately prepared to acknowledge that the take-off manoeuvre was conducted without incident.

73.     The Tribunal viewed a videotape of the take-off which was tendered in evidence by the applicant (Exhibit A1).  [The Tribunal notes that this was apparently not the abovementioned videotape anonymously provided to CASA in late February 2002;  the latter videotape was not tendered in evidence.]  The Tribunal notes that the lift-off was quick and without incident and it appeared to have been conducted safely.

74. On the basis of the whole of the evidence and material before it, the Tribunal is not satisfied that, in conducting the Cessna float plane take-off from a towed trailer at Jandakot Airport on 10 January 2002, the applicant was “reckless as to whether the manner of operation [of that aircraft] could endanger the life of another person”, within the meaning of s20A(1) of the Act as in force at that time (and as presently in force). Accordingly, the Tribunal is not satisfied that the applicant contravened s20A(1) of the Act in conducting that take-off operation.

Did the applicant contravene s 20A(2) of the Act?

75. The respondent submitted that the applicant also contravened s20A(2) of the Act in executing the abovementioned take-off at Jandakot Airport on 10 January 2002. On the basis of the whole of the evidence and material before it, however, the Tribunal, having regard to the considerations referred to in paragraphs 69-73 above, is likewise not satisfied that, in conducting that take-off operation, the applicant was “reckless as to whether the manner of operation [of the relevant aircraft] could endanger the person or property of another person”, within the meaning of s20A(2) of the Act. Accordingly, the Tribunal is not satisfied that the applicant contravened s20A(2) of the Act in conducting that take-off operation.

Did the applicant contravene reg 92(1) of the Regulations?

76. The respondent also submitted that the applicant contravened reg 92(1) of the Regulations in executing the abovementioned take-off at Jandakot Airport on 10 January 2002. On the basis of the whole of the evidence and material before it, and having regard to the considerations referred to in paragraphs 69-73 above, including in particular the circumstances of the proposed take-off and the prevailing weather conditions (which, according to the uncontradicted evidence of the applicant, were very favourable), the Tribunal is satisfied that the relevant aircraft could (and did) take-off in safety from the trailer as it was being towed along a runway at Jandakot Airport. Accordingly, the Tribunal finds that the applicant did not contravene reg 92(1) of the Regulations in executing that take-off.

Did the applicant contravene reg 157(1)(b) of the Regulations?

77. The respondent submitted that the applicant contravened reg 157(1)(b) of the Regulations when, having executed the abovementioned take-off from the towed trailer at Jandakot Airport on 10 January 2002, he then “completed a high-speed, low level fly by” at the airport, before flying away from the airport.

78.     The Tribunal notes that, although the applicant’s counsel did not formally concede that the applicant conducted a fly past at a height lower than 500 feet over Jandakot Airport on the abovementioned occasion, the applicant, in his own evidence (see paragraph 39 above), acknowledged that he had done so.  The Tribunal, having viewed a videotape of the entire operation, including the fly past, has no doubt that the height of the aircraft during the fly past was well below 500 feet.  Furthermore, it is common ground that none of the circumstances (in which reg 157(1) does not apply) specified in reg 157(4) was present in this case.

79. Accordingly, the Tribunal finds that on 10 January 2002 the applicant flew Cessna aircraft VH-THD over Jandakot Airport at a height lower than 500 feet and that he thereby contravened reg 157(1)(b) of the Regulations.

Did the applicant contravene reg 166(1)(g) of the Regulations?

80. The respondent submitted that the applicant contravened reg 166(1)(g) of the Regulations when, having executed the abovementioned take-off from a towed trailer and before conducting the abovementioned fly past at Jandakot Airport on 10 January 2002, he “commenced a left turn below 500 feet above ground level”.

81. The Tribunal notes that the applicant, in his oral evidence, acknowledged that, shortly after the abovementioned take-off, he did execute a turn at an altitude below 500 feet. Furthermore, it is common ground that that turn was not directed by Air Traffic Control, nor was it “necessary due to the terrain”, within the meaning of reg 166(1)(g) of the Regulations. The Tribunal understood counsel for the applicant, during closing submissions, formally to concede that the applicant did contravene reg 166(1)(g) of the Regulations in executing the abovementioned turn shortly after take-off, and, having itself viewed the videotape of the entire operation, including that turn, the Tribunal regards that concession as rightly made.

82. Accordingly, the Tribunal finds that on 10 January 2002 the applicant, shortly after taking-off from Jandakot Airport in Cessna aircraft VH-THD and while operating that aircraft above the airport, “alter(ed) heading from the take-off heading at a height less than 500 feet above the terrain”, and that that alteration was not directed by Air Traffic Control and was not “necessary due to the terrain”, and that he thereby contravened reg 166(1)(g) of the Regulations.

Did the applicant fail in his “duty with respect to any matter affecting the safe or efficient navigation or operation of an aircraft”, within the meaning of reg 269(1)(c) of the Regulations?

83. As regards the take-off of Cessna aircraft VH-THD from a towed trailer at Jandakot Airport on 10 January 2002, the Tribunal has found that the applicant, in executing that take-off, did not contravene s20A(1) or s20A(2) of the Act, or reg 92(1) of the Regulations (see paragraphs 69-76 above). For the same reasons, the Tribunal also finds that the applicant, in executing that take-off, did not fail in his “duty with respect to any matter affecting the safe or efficient navigation or operation of an aircraft”, within the meaning of reg 269(1)(c) of the Regulations.

84. As regards the left turn and the fly past which the applicant executed shortly after the abovementioned take-off, the Tribunal has found that the applicant, in executing those manoeuvres, contravened regs 166(1)(g) and 157(1)(b), respectively, of the Regulations (see paragraphs 79 and 82 above). The Tribunal is satisfied, however, that neither of those contraventions involved the unsafe operation of the relevant aircraft. As regards the left turn executed after take-off at a height less than 500 feet, in contravention of reg 166(1)(g), the Tribunal accepts the applicant’s evidence that it was “just a light, medium turn” executed at “well above” stall speed and that it was well within the capability of the aircraft, and his capability as a pilot, and is of opinion, having viewed the videotape of that manoeuvre, that it did not constitute an air navigation safety risk. Likewise, although the fly past which the applicant then executed over Jandakot Airport at a height lower than 500 feet involved a contravention of reg 157(1)(b), it was, in the Tribunal’s opinion, executed in a safe manner, at a safe height and at a safe speed. Indeed that very manoeuvre was, according to the applicant’s evidence (which the Tribunal accepts), conducted for a safety purpose, namely, to enable Denis Repacholi visually to inspect the aircraft from the ground for any sign of damage that might have occurred prior to, or during, the take-off. Furthermore, the “waggling”, or rocking, of the aircraft wings which the applicant then performed was, in the Tribunal’s opinion, not an extravagant or unsafe manoeuvre and the subsequent departure of the aircraft from the vicinity of the airport also appeared to be performed in a safe manner.

85. Accordingly, the Tribunal finds that, in respect of the take-off of Cessna aircraft VH-THD from the towed trailer, and the subsequent left turn and fly past, executed by the applicant at Jandakot airport on 10 January 2002, the applicant did not fail in his duty with respect to any matter affecting the safe or efficient navigation or operation of that aircraft, within the meaning of reg 269(1)(c) of the Regulations.

Is the applicant “not a fit and proper person to have the responsibilities and exercise and perform the functions and duties of a holder of a [pilot] licence” within the meaning of reg 269(1)(d) of the Regulations?

86. Mr Langmead (for the applicant) submitted that the matters to which the Tribunal may properly have regard in determining whether or not the applicant is a “fit and proper person”, for the purposes of reg 269(1)(d) of the Regulations, are limited to matters that relate to the safety of air navigation. He referred, in support of that submission, to reg 5.09(3) of the Regulations which limits the range of matters that CASA may properly take into account, in deciding whether an applicant for, inter alia, a pilot licence is a “fit and proper person to hold the licence”, to matters  that relate to the safety of air navigation.  Accordingly, he submitted that there is “no moral dimension to the test of being a fit and proper person to hold a pilot licence” and that the Tribunal should, in particular, not have regard to the allegations made by Messrs Farquharson, Dolby and Siggins of CASA regarding threats and/or intimidatory behaviour directed towards them by the applicant on 5 and 15 March 2002 (see the statements of Messrs Farquharson, Dolby and Siggins set out in paragraphs 19-21 above) and the interim Violence Restraining Order and the Misconduct Restraining Order subsequently issued by a Clerk of the Court of Petty Sessions, Perth against the applicant for the benefit of Messrs Dolby, Siggins and Farquharson (see paragraph 23 above).  Mr Langmead submitted that the Tribunal should also not have regard to the pre-1993 aviation-related transgressions of the applicant but, instead, should have regard to his generally exemplary aviation record since 1993 – during which period the CAA issued a commercial pilot (aeroplane) licence to the applicant on 15 October 1993 and gave approval under Civil Aviation Order 82.0 subsection 5 on 10 February 1995 for the applicant to be appointed as a Chief Pilot, and CASA on 27 July 1998 gave approval under Civil Aviation Order 40.6 subsection 13 to the applicant to act as an approved agricultural (aeroplane) pilot for the purpose of direct and indirect supervision – and, on that basis, should determine that the applicant is a fit and proper person to have the responsibilities and exercise and perform the functions and duties of a holder of a pilot licence.

87. Mr Shields (for CASA) submitted that, contrary to Mr Langmead’s submission, there is a “moral dimension to the fit and proper person test” and that a person’s willingness or unwillingness to comply with the aviation laws is a relevant consideration in determining whether that person is a “fit and proper person” for the purposes of reg 269(1)(d) of the Regulations. Accordingly, he submitted that the Tribunal should have regard to the applicant’s pre-1993 compliance history, including his “criminal history” as regards aviation-related offences, for that purpose. He submitted that the Tribunal should also have regard to the applicant’s contraventions of the Regulations since 1993 and to the abovementioned threats and intimidation allegedly perpetrated by the applicant towards Messrs Dolby, Siggins and Farquharson of CASA on 5 and 15 March 2002. He submitted that the applicant’s overall compliance history and his behaviour towards CASA officers demonstrate that he has scant regard for the aviation laws and for the safety of persons and property, that he lacks good aviation “judgment”, and that he “interfaces” inappropriately with CASA officers and that, having regard to those considerations, he is “not a fit and proper person to have the responsibilities and exercise and perform the functions and duties” of a holder of a pilot licence, within the meaning of reg 269(1)(d) of the Regulations.

88.     The expression “fit and proper person”, which commonly appears in licensing and other forms of regulatory legislation, must be interpreted having regard to the particular legislative context in which it appears: Maxwell v Dixon [1965] WAR 167 at 169; Re Taylor and Department of Transport (1978) 1 ALD 312 at 321; Re Griffiths and Civil Aviation Authority (1994) 34 ALD 554 at 559. In the present case the question for the Tribunal to determine is not merely whether the applicant is, or is not, a fit and proper person; rather, it is whether the applicant is, or is not, “a fit and proper person to have the responsibilities and exercise and perform the functions and duties of a holder of” a pilot licence – specifically, commercial pilot (aeroplane) licence, private pilot (aeroplane) licence and a restricted private pilot (aeroplane) licence (No 019178). In determining that question, the matter to which the Tribunal should primarily have regard is the applicant’s conduct as regards fulfilling the “responsibilities”, exercising the “functions” and performing the “duties”, as set out in the Act and in the Regulations, associated with his holding that licence. It is, however, also appropriate, in the Tribunal’s opinion, for it to have regard to the applicant’s conduct in relation to other similar responsibilities, functions and duties which have been applicable to him under the Act and the Regulations. As the Tribunal said in Re Griffiths (above) at 560-561:

“(16)    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 licences and related only to his actions as the holder of those licences.  In assessing whether he is a fit and proper person to carry out the functions, duties and responsibilities of a licence 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 licences which are relevant but the pattern of his past behaviour in areas related to that under consideration.  Individual events and actions taken out of that broader context are not necessarily an accurate reflection of a person’s fitness or otherwise”.

89. The Tribunal accepts that, in determining whether or not the applicant is a “fit and proper person” for the purposes of reg 269(1)(d) of the Regulations, at the forefront of the matters to which it should have regard are matters related to the safety of air navigation, but it does not accept Mr Langmead’s submission that its consideration should be confined to matters falling within that category. In the Tribunal’s opinion it is appropriate, in determining whether a person is a “fit and proper person” for the purpose of deciding whether to cancel that person’s licence under reg 269(1) of the Regulations, to have regard to a wider range of considerations than is permissible when determining whether a person is a “fit and proper person” for the purpose of deciding whether to issue a licence to that person under reg 5.09(1) of the regulations. In the latter case it appears, from reg 5.09(3) of the Regulations, that the category of matters that may be taken into account is limited to matters that relate to the safety of air navigation. In the former case, however, it is appropriate that consideration be given not only to matters relating to the safety of air navigation but also, inter alia, to the licence holder’s past record of compliance, or non-compliance, with the Regulations during the currency of their licence as indicative of the likelihood of their complying, or not complying, with the Regulations in the future, and of their respect, or lack of respect, for the Regulations and civil aviation regulatory legislation generally. The Tribunal accepts Mr Shields’ submission that, in the present case, it is appropriate for it to have regard to the applicant’s conduct in his dealings with CASA officers in their professional capacities, and at least insofar as such conduct is indicative of the degree of the applicant’s respect, or lack thereof, for the civil aviation laws and for those persons whose professional responsibility it is to uphold and enforce them.

90. The applicant’s compliance history and aviation-related conduct over the last 20 years appear to the Tribunal to fall into 2 distinct periods. Throughout the 1980s up until 1991, the applicant’s aviation record was very poor, involving various contraventions of the Regulations resulting in adverse actions by the CAA and, indeed, in numerous criminal convictions for aviation-related offences (see paragraphs 5-14 above). Since 1993, however, the applicant’s aviation-related record has been generally very good. Apart from the weed-spraying incident at Jandakot Airport in 1999 which resulted in the applicant’s being counselled by Mr James, a CASA District Flight Operations Manager, it appears that no adverse action was taken by the CAA or by CASA regarding the applicant until March 2002 following the Cessna float plane trailer take-off incident at Jandakot Airport on 10 January 2002. Furthermore, certain notable positive developments regarding the applicant’s aviation qualifications occurred during that period, including:

·     the issuing by the CAA of a commercial pilot (aeroplane) licence to the applicant on 15 October 1993;

·     the grant of approval by the CAA on 10 February 1995 for the applicant to be appointed Chief Pilot of Repacholi Aviation Pty Ltd;

·     the grant of approval by CASA, on 27 July 1998, to the applicant to act as an approved agricultural (aeroplane) pilot for the purpose of direct and indirect supervision.

91. The abovementioned weed-spraying incident in 1999 has not been found by the Tribunal to have involved a contravention of the Act or of the Regulations. Manoeuvres executed by the applicant shortly after the abovementioned take-off incident on 10 January 2002 have, on the other hand, been found by the Tribunal to have involved a contravention of regs 157(1)(b) and 166(1)(g) of the Regulations. The Tribunal has also found, however, that neither of those contraventions of the Regulations involved the unsafe operation by the applicant of the relevant aircraft or constituted a failure by the applicant in his duty with respect to any matter affecting the safe or efficient navigation or operation of that aircraft.

92. There remain for consideration the allegations made by CASA officers Dolby and Farquharson (in their written statements and in their oral evidence) and Siggins (in his written statement) regarding threats and/or intimidatory behaviour directed towards them by the applicant on 5 and 15 March 2002, and the consequential issuing, by a Clerk of the Court of Petty Sessions, Perth, of an interim Violence Restraining Order and a Misconduct Restraining Order (effective until 27 March 2004) against the applicant for the benefit of the abovementioned CASA officers. For the purposes of considering this matter, the Tribunal will assume that those allegations, as detailed in the officers’ statements (see paragraphs 19-21 above), are true. On that assumption the Tribunal has no hesitation in saying that such conduct is a matter of very serious concern and cannot be excused or justified. That conduct, however, was not typical or representative of the applicant’s relations with CASA and its officers since at least 1993 which, as previously mentioned, have generally been good. Rather, that conduct can be explained as a very angry reaction by the applicant to particular action by those CASA officers which placed his aviation business and his very livelihood in jeopardy, and which he regarded – not unreasonably, in the Tribunal’s opinion – as unfair and completely unjustifiable in the circumstances. Viewed in that way, the applicant’s conduct, while inexcusable and unacceptable, cannot fairly be regarded as indicating, of itself, a scant regard by him for the aviation laws or an inability or unwillingness on his part to relate professionally and constructively with CASA and its officers in the future. That conduct, in the Tribunal’s opinion, does not of itself demonstrate that the applicant is not a “fit and proper person” for the purposes of reg 269(1)(d) of the Regulations.

93. Having regard to all relevant considerations concerning the applicant’s compliance history in relation to the Regulations and his aviation-related conduct generally – especially in the period since 1993, which the Tribunal regards as more significant for present purposes than the pre-1993 period - the Tribunal is not satisfied that the applicant is “not a fit and proper person to have the responsibilities and exercise and perform the functions and duties of a holder of” a pilot licence, within the meaning, and for the purposes, of reg 269(1)(d) of the Regulations.

Should the applicant’s commercial pilot (aeroplane) licence, private pilot (aeroplane) licence and restricted private pilot (aeroplane) licence (No 019178) be cancelled under reg 269(1) of the Regulations?

94. The only ground specified in reg 269(1) of the Regulations, on the basis of which the applicant’s pilot licence may be cancelled under that subregulation, which has been found by the Tribunal to exist in this case is that specified in para (a) of that subregulation. That ground exists in this case by reason only of the Tribunal’s abovementioned findings that the applicant contravened regs 157(1)(b) and 166(1)(g) of the Regulations in the course of executing, respectively, the fly past and left turn manoeuvres shortly after the float plane take-off from a towed trailer at Jandakot Airport on 10 January 2002. The ultimate matter for the Tribunal’s determination in this case is whether, having regard to those findings, the applicant’s pilot licence should, in exercise of the discretionary power conferred by reg 269(1) of the Regulations, be cancelled on the ground specified in para (a).

95. The Tribunal has also found, however, that neither of the abovementioned contraventions of the Regulations involved the unsafe operation by the applicant of the relevant aircraft or constituted a failure by the applicant in his duty with respect to any matter affecting the safe or efficient navigation or operation of that aircraft. Each of those contraventions was, in the Tribunal’s opinion, merely a trivial, technical contravention and, taken individually or collectively, warranted no more than counselling action by CASA. 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.

Decision

96.     For the above reasons the Tribunal sets aside the decision under review and, in substitution therefor, decides that the applicant’s commercial pilot (aeroplane) licence, private pilot (aeroplane) licence and restricted private pilot (aeroplane) licence (No 019178) should not be cancelled.

I certify that the 96 preceding paragraphs are a true copy of the reasons for the decision herein of Associate Professor S D Hotop, Deputy President and Air Marshal Gration, Member

Signed:          ...........(sgd V Wong).................................
  Associate

Date/s of Hearing  25-27 September, 28-29 November 2002     
Date of Decision   18 June 2003   
Counsel for the Applicant           Mr J Langmead SC and Mr P Berman
Solicitor for the Applicant            Grundy Maitland & Co Lawyers
Counsel for the Respondent     Mr B Shields
Solicitor for the Respondent      Mr A Anastasi, Office of Legal Counsel, CASA