Repacholi Aviation Pty Ltd and Civil Aviation Authority
[2006] AATA 578
•30 June 2006
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2006] AATA 578
ADMINISTRATIVE APPEALS TRIBUNAL )
) No W2004/44
GENERAL ADMINISTRATIVE DIVISION ) Re REPACHOLI AVIATION PTY LTD Applicant
And
CIVIL AVIATION SAFETY AUTHORITY
Respondent
DECISION
Tribunal Deputy President S D Hotop Date30 June 2006
PlacePerth
Decision The Tribunal sets aside the decision under review and remits the matter to the respondent (“CASA”) for reconsideration in accordance with the following directions:
· Gerald Repacholi has “maintained a satisfactory record in the conduct or management of flying operations”, within the meaning, and for the purposes, of para (a) of cl 1.3 in Appendix 1 of section 82.0 of the Civil Aviation Orders (“CAO”);
· Gerald Repacholi be assessed and examined, in accordance with paras (b)-(d) of cl 1.3 in Appendix 1 of section 82.0 of the CAO, by an examiner appointed by CASA, who is based in a regional office of CASA other than the Perth General Aviation Field Office (formerly known as the West Area Office), and who is acceptable to Mr Repacholi;
· if Gerald Repacholi is assessed by the relevant examiner as “suitable to carry out the responsibilities of a Chief Pilot”, for the purposes of para (b) of cl 1.3, and passes the examinations conducted by the relevant examiner for the purposes of paras (c) and (d) of cl 1.3, he be forthwith approved as the Chief Pilot of Repacholi Aviation Pty Ltd without the requirement to undertake the flying activity specified in para (e) of cl 1.3.
......(Sgd S D Hotop)........
Deputy President
CATCHWORDS
CIVIL AVIATION – Chief Pilot approval – Gerald Repacholi approved by respondent (CASA) as Chief Pilot of applicant in February 1995 – Mr Repacholi acted as Chief Pilot of applicant until March 2002 when he resigned – new Chief Pilot approved by CASA in April 2002 – in November 2003 applicant requested CASA to approve Mr Repacholi as Chief Pilot – in February 2004 CASA refused to approve Mr Repacholi as Chief Pilot – consideration of Mr Repacholi’s compliance history and dealings with CASA officers – Mr Repacholi has maintained a satisfactory record in the conduct or management of flying operations – Mr Repacholi’s approval as Chief Pilot conditional on his being assessed by examiner as suitable to carry out responsibilities of Chief Pilot and passing prescribed examinations conducted by examiner – Mr Repacholi should be approved as Chief Pilot of applicant if those conditions satisfied – decision under review set aside
Civil Aviation Orders section 82.0 Appendix 1
Re Repacholi and Civil Aviation Safety Authority [2003] AATA 573; (2003) 75 ALD 312
REASONS FOR DECISION
30 June 2006 Deputy President S D Hotop Introduction
1. On 10 February 1995 the Civil Aviation Authority (“CAA”), the predecessor of the Civil Aviation Safety Authority (“CASA”), approved Gerald Repacholi as the Chief Pilot of Repacholi Aviation Pty Ltd (“Repacholi Aviation”).
2. At that time Gerald Repacholi was the holder of a Commercial Pilot Licence (“CPL”) (No 019178), such licence having been issued to him by the CAA on 15 October 1993. In March 2002, however, CASA suspended Gerald Repacholi’s CPL under reg 268 of the Civil Aviation Regulations 1988 (“CAR”) pending an investigation into alleged contraventions by him of s 20A of the Civil Aviation Act 1988(Cth) (“the Act”) and regs 157 and 166 of the CAR in an incident on 10 January 2002.
3. In March 2002 Repacholi Aviation appointed Frederick Hampton as its Chief Pilot and on 3 April 2002 CASA approved the appointment of Frederick Hampton as the Chief Pilot of Repacholi Aviation under Appendix 1 of section 82.0 of the Civil Aviation Orders (“CAO”).
4. On 19 June 2002 CASA cancelled Gerald Repacholi’s CPL under reg 269 of the CAR on the grounds that, inter alia, he had contravened s 20A of the Act and regs 92, 157 and 166 of the CAR. That decision was, however, set aside by the Tribunal on 18 June 2003. The Tribunal found that Gerald Repacholi had contravened regs 157 and 166 of the CAR on 10 January 2002 but, nevertheless, decided that his CPL should not be cancelled under reg 269 of the CAR: see Re Repacholi and Civil Aviation Safety Authority [2003] AATA 573; (2003) 75 ALD 312.
5. By letter dated 14 November 2003 to CASA, Denis Repacholi, the Director of Repacholi Aviation, requested that Gerald Repacholi be “reinstated as Chief Pilot of Repacholi Aviation”. Enclosed with that letter was a completed CASA “Application for Approval of Appointment” form signed by Gerald Repacholi and dated 14 November 2003.
6. On 4 February 2004 CASA refused to approve Gerald Repacholi as the Chief Pilot of Repacholi Aviation.
7. On 10 February 2004 an application for review of CASA’s decision of 4 February 2004 was lodged with the Tribunal.
The Relevant Legislation
8. Appendix 1 of section 82.0 of the CAO relevantly states:
“1 APPROVAL OF CHIEF PILOT BY CASA
1.1A person must not be appointed as, or act as, a Chief Pilot unless the person’s appointment has been approved in writing by CASA after application in writing by the operator.
1.2The application must include the following details in relation to the person:
(a)current licences, ratings and endorsements held;
(b)total flight time, total time as pilot in command and, where applicable, total instrument flight time and multi-engine aircraft experience;
(c)a comprehensive outline of flying history, including experience in commercial operations.
1.3The appointment may be approved only if the person has:
(a)in the opinion of CASA, maintained a satisfactory record in the conduct or management of flying operations; and
(b)been assessed, by an examiner appointed by CASA, as suitable to carry out the responsibilities of a Chief Pilot; and
(c)passed an oral examination, conducted by an examiner appointed by CASA, covering the regulatory requirements for the safe conduct of commercial operations; and
(d)passed a flight planning, loading and performance examination, conducted by an examiner appointed by CASA, based on the operator’s most complex aircraft; and
(e)if required by CASA — flown with a person nominated by CASA to demonstrate his or her suitability for appointment.
1.4CASA must:
(a)give written notice of the approval, or refusal of approval, to the operator and to the person; and
(b)if CASA refuses to approve the appointment — include in the notice the reasons for the refusal.
1.5An approval:
(a)relates only to the operator mentioned in the notice of approval; and
(b)may be subject to conditions mentioned in the notice of approval; and
(c)remains in force:
(i)for the period mentioned in the notice of approval; or
(ii)if no period is mentioned — while the person maintains a satisfactory standard of performance.
2 RESPONSIBILITIES OF CHIEF PILOT
2.1The Chief Pilot for an operator is to have control of all flight crew training and operational matters affecting the safety of the flying operations of the operator.
2.2The responsibilities of a Chief Pilot must, unless CASA otherwise specifies in writing, include the following responsibilities:
(a) ensuring that the operator’s air operations are conducted in compliance with the Act, the Civil Aviation Regulations 1988, the Civil Aviation Regulations 1998 and the Civil Aviation Orders;
(b) arranging flight crew rosters;
(c) maintaining a record of licences, ratings, and route qualifications held by each flight crew member, including:
(i)validity; and
(ii)recency; and
(iii)type endorsements and any applicable licence restrictions;
(d) maintaining a system to record flight crew duty and flight times to ensure compliance with duty and flight time limitations, in accordance with Part 48 of the Orders;
(e) ensuring compliance with loading procedures specified for each aircraft type used by the operator and proper compilation of loading documents, including passenger and cargo manifests;
(f) monitoring operational standards, maintaining training records and supervising the training and checking of flight crew of the operator;
(g) conducting proficiency tests in the execution of emergency procedures and issuing certificates of proficiency as required by section 20.11;
(h) training flight crew in the acceptance and handling of dangerous goods as required by the Civil Aviation Regulations 1988 or the Orders;
(i) maintaining a complete and up-to-date reference library of operational documents as required by CASA for the class of operations conducted;
(j) allocating appropriate aircraft.
3 DELEGATION BY CHIEF PILOT
3.1A Chief Pilot, in exercising any responsibility, may delegate duties to other members of the operator’s staff, but may not delegate training and checking duties without the written approval of CASA.
4 QUALIFICATIONS OF CHIEF PILOT
4.1A Chief Pilot must, unless CASA otherwise approves in writing, hold at least the minimum qualifications set out in Table A.
4.2Where the operator engages in operations under the instrument flight rules, the Chief Pilot must hold an instrument rating appropriate to the category and class of operations conducted by the operator.
4.3Unless otherwise approved in writing by CASA, a Chief Pilot must hold a licence with the appropriate endorsements and ratings to permit him or her to act as pilot in command of all operations authorised by the operator’s certificate.
6 CANCELLATION OR SUSPENSION OF APPROVAL
6.1In spite of clause 5.5 (sic), an approval may be cancelled or suspended at any time if, in the opinion of CASA, the performance of the Chief Pilot is no longer of an acceptable standard.
…”
The Relevant Policy of CASA
9. The Air Operator Certification Manual produced by CASA – which, it is common ground, is a CASA policy document – deals, in Chapter 7, with, inter alia, the approval process regarding the position of Chief Pilot of an air operator. Chapter 7 (extracts of which were tendered in evidence – Exhibit R7) relevantly states:
“ 7.8.3.2 Chief Pilot
7.8.3.2.1 Approval
Chief Pilots are responsible for holding and carrying out the duties of one, and in some cases two, of the four ‘key personnel’ positions listed in section CAA 28—namely the ‘head of flying operations’ and the ‘head of training and checking (if any)’. CAO 82.1, CAO 82.3, CAO 82.5 and CAO 82.7, as applicable, require the appointment of a Chief Pilot and approval of that appointment by CASA.
It follows that the quality of the incumbent of the position is critical to the safety of the flying operations of the operator, therefore the assessment of the nominee to the position is equally important. The calibre of the Chief Pilot will, eventually, determine the calibre of the operation.
The CAOs provide for the Chief Pilot to delegate any of the duties required in exercising any of the statutory responsibilities of the position. It is important to remember that this delegation of duties does not and cannot mean delegation of responsibilities. These two aspects must be considered separately. Regardless of who does the supervision or the work, the responsibility for its standard of performance stays with the Chief Pilot.
Furthermore, these CAOs provide that the responsibilities of a Chief Pilot must, unless CASA otherwise specifies in writing, include those listed. CASA’s power under this provision to vary this list should not be used to devolve any of those responsibilities. Devolution is seen as normally unsustainable because each specific listed responsibility falls within the ambit of a Chief Pilot’s general responsibility, under paragraph 2.1, for ‘...the safety of the flying operations of the operator’.
…
7.8.3.2.6 Replacement of Chief Pilot
An operator may wish to plan for the situation where a Chief Pilot may need to be replaced. This replacement can be for:
·Sudden unplanned departure of the existing Chief Pilot, perhaps for other employment; or
·For a short period of time such as annual leave, absences on duty away from home base etc.
This can be accommodated by the assessment of another person as a ‘standby’ Chief Pilot who can be appointed to the position of Chief Pilot by the operator and have that appointment approved by CASA with minimum delay.
7.8.3.2.6.1 Request for Assessment
·The operator requests assessment of a person to the standard required for approval as Chief Pilot by a written request accompanied by the details required by subsection 1.2 of Appendix 1 to CAO 82.0.
·CASA will then conduct an assessment of the person requested by the operator to the same standard as required for the assessment of a Chief Pilot for that operator.
·If the assessment is satisfactory, a letter will be sent to the operator notifying that the assessment has been completed. A copy of that letter will be placed on the Company file.
7.8.3.2.6.2 Request for Approval of Appointment
·The operator appoints the assessed person as Chief Pilot (with or without a time limit) and requests CASA approval of that appointment.
·CASA will issue the approval based on the assessment already conducted, provided:
o There is nothing adverse known about the applicant’s personal compliance history since the assessment that would preclude the approval; and
o The operator has not substantially changed their operation since the assessment was conducted.
7.8.3.2.6.3 Reinstatement of Previous Chief Pilot
·The operator re-appoints the previous holder of a Chief Pilot approval.
·CASA will issue an approval of that appointment based on their previous Chief Pilot assessment, provided:
o There is nothing adverse known about the applicant’s personal compliance history since the applicant was last Chief Pilot that would preclude the approval
o The operator has not substantially changed their operation since the applicant was Chief Pilot.
7.8.3.2.6.4 Unsuitability of Applicant
A fresh assessment of the applicant will need to be conducted where:
·The applicant’s compliance history since their last assessment indicates that a reassessment is necessary; or
·The operator has substantially changed their operation since the applicant was last assessed.
…”
Repacholi Aviation’s Case
The evidence of Gerald Repacholi
10. Gerald Repacholi confirmed that he had signed a witness statement dated 13 December 2004 for the purpose of these proceedings. The relevant contents of that statement, which was tendered in evidence (Exhibit A1), are as follows:
“…
3. I held the position of chief pilot of Repacholi Aviation Pty Ltd continuously from 10 February 1995 until March 2002, when I resigned my position as chief pilot for a period of time sufficient to deal with problems between myself and CASA to allow Repacholi Aviation Pty Ltd to continue to operate its business without it becoming embroiled in the dispute between myself and CASA.
4. The matters of dispute between myself and CASA arose out of an incident whereby I conducted an experimental flight in a floatplane on 10 January 2002 during which the aircraft was launched into the air from a trailer attached to a truck at Jandakot aerodrome.
…
6. On 19 June 2002, CASA cancelled my pilot licences on alleged grounds arising form the flight conducted on 10 January 2002 pursuant to CAR 269(1). I subsequently made application to the Administrative Appeals Tribunal [‘AAT’] in Perth, seeking a review of the decision made by CASA to cancel my pilot licences...
7. No administrative action was taken by CASA in respect of my capacity as chief pilot of Repacholi Aviation Pty Ltd, and no administrative action was taken by CASA against Repacholi Aviation Pty Ltd or its Air Operator’s Certificate [‘AOC’]. My chief pilot approval was not attacked or made the subject of any ‘show cause’ process. The only administrative action taken by CASA was against my private and commercial pilot licences.
…
11. The Repacholi (sic) AOC was due for renewal on 31 March 2002. On 21 March 2002 CASA issued a Notice of Proposed Action to Refuse to Issue AOC Number 224369 for Repacholi Aviation Pty Ltd on alleged grounds arising from the flight conducted on 10 January 2002.
12. CASA subsequently conceded that the flight conducted on 10 January 2002 was not conducted under the Repacholi Aviation Pty Ltd AOC and withdrew the proposed Refusal to Issue AOC following discussions between myself, my son Denis Repacholi, who is now the sole director of Repacholi Aviation Pty Ltd, and CASA; and between my legal advisers and CASA legal counsel.
13. As a result of the discussions, I agreed to ‘step back’ from my involvement with Repacholi Aviation Pty Ltd pending the resolution of my dispute with CASA on the understanding that when my licences were restored, I would again be appointed as chief pilot of Repacholi Aviation Pty Ltd. To this end, I resigned as chief pilot and my directorship of Repacholi Aviation Pty Ltd. My son, Denis Repacholi continued on with the running of the company.
14. In March 2002 Repacholi Aviation Pty Ltd appointed Mr Fred Hampton as replacement chief pilot of Repacholi Aviation Pty Ltd. Mr Hampton was assessed by CASA and his appointment was subsequently approved by [CASA].
15. Mr Hampton’s aviation qualifications and experience were less than my own, however he was the only available person at the time qualified [to] be appointed as chief pilot of an AOC holder which conducted aerial agricultural operations as well as charter. CASA assessed Mr Hampton as not being suitably skilled or experienced to act as chief pilot of an organisation conducting charter operations, however, Mr Hampton was assessed as being suitable to act as chief pilot of an organisation conducting aerial agricultural operations (crop dusting), and that he could reapply for assessment for charter operations after he gained some suitable charter experience.
16. There was no alternative chief pilot available to be appointed for Repacholi Aviation Pty Ltd, and the company was left with no option but to make a request to CASA to vary the AOC by restricting the flight operations authorised under the AOC to aerial work operations, which included aerial agricultural operations. This restrictive variation caused financial harm to Repacholi Aviation Pty Ltd, however, the only alternative to a restricted operation was to close the operation down, which was no real alternative.
17. On 18 June 2003, the Tribunal set aside the decision made by CASA to cancel my pilot licences, and the effect of the Tribunal’s decision was that my pilot licences were restored effective from the date of cancellation, as if they had not been cancelled. There were no issues concerning my chief pilot approval, which was not at any stage under threat. Any Requests for Corrective Action issued by CASA during routine annual audits of Repacholi Aviation Pty Ltd regarding perceived minor discrepancies detected during the audits had been cleared. There was no reason for me to believe that CASA would refuse to approve an application for me to again be reappointed as chief pilot.
…
27.My history as a chief pilot was good. CASA took no administrative action against me in my capacity as chief pilot, nor did it issue me with a ‘show cause’ Notice threatening my appointment as chief pilot of Repacholi Aviation Pty Ltd at any time. If CASA had not suspended or cancelled my pilot licences on the alleged grounds arising from the flight on 10 January 2002, I would have remained as chief pilot of Repacholi Aviation Pty Ltd.
…”
11. In his examination-in-chief Mr Repacholi was questioned in relation to the grounds on which the decision of CASA, dated 4 February 2004, to refuse to approve him as the Chief Pilot of Repacholi Aviation was based.
“False statement”
12. Mr Repacholi acknowledged that, under the heading “Flying history” in the “Application for Approval of Appointment” form dated 14 November 2003 (referred to in paragraph 5 above), he wrote (inter alia) “NO ACCIDENTS”, notwithstanding an event on 25 July 1995 in which he was the pilot of an aircraft which, while travelling on a runway immediately prior to take-off, struck a pothole on a runway causing the aircraft to “swing around” and do a “ground loop” during which the right wing touched the ground. He said that no-one was injured and the only damage caused was to the wing tip of the aircraft. He added that he reported that incident to the CAA. He said that when he wrote “NO ACCIDENTS” on the abovementioned form he had in mind serious accidents, not a “minor hiccup” such as the incident of 25 July 1995.
13. Mr Repacholi also acknowledged that on 19 January 1990, in completing an application to the CAA for a student pilot licence, he answered “No” to the question: “Have you ever been refused any Australian pilot licence or flight crew licence?”. Mr Repacholi said that at that time he did not think that that answer was incorrect. [The Tribunal notes, however, that an application by Mr Repacholi for a private pilot licence had been refused on 15 December 1987 by a delegate of the Secretary to the Department of Transport and Communications: see Re Repacholi and Civil Aviation Safety Authority [2003] AATA 573 at para 10.]
“Failure to make radio calls”
14. As regards CASA’s finding, based on information received from pilots, that Mr Repacholi “on numerous occasions throughout 1999-2002 failed to make radio calls when entering the Rottnest Island CTAF (Common Traffic Advisory Frequency) or failed to make such calls in accordance with the relevant Aeronautical Information Publication (“AIP”), Mr Repacholi responded:
“… we have always made radio calls… The CTAF… is an area designated around an aerodrome to give a mandatory broadcast as you approach the – that air space and with Rottnest I think - I believe it is - I haven't been over there for a while but I think it is about six miles. And you just - and it is best always call a little bit before you get into the barrier. And just call what height you are and what type of aircraft [you] are. And, in fact, there is nothing in the regulations to state that you have to use a registration. All you have to do is say it is a Cessna 310 six miles east, inbound at 1500 feet or 2000 feet or whatever. As long as you make a radio call.” (Transcript, p 18)
“Conduct at Esperance aerodrome”
15. The relevant incident is described in the reviewable decision of CASA, dated 4 February 2004, as follows:
“10. On 16 November 2001, an aircraft operating on a regular public transport flight by Sky West landed at Esperance in Western Australia. The weather conditions were inclement, and the cloud base was at times 300 feet above ground level. Because of the weather conditions, the aircraft had to conduct seven instrument approaches prior to landing.
11. Gerald Repacholi was waiting at Esperance aerodrome for a passenger on this flight. He then, without permission, walked onto the apron of the aerodrome and walked to the aircraft when passengers were disembarking. He misrepresented himself to ground attendants to the effect that he was a passenger who had left something on board the aircraft. He was instructed by a flight attendant to remain at the foot of the stairs outside the aircraft, but he ran up the stairs and forced his way into the flight crew compartment of the aircraft.
12. Gerald Repacholi then proceeded to express his amazement to the pilots of the aircraft that they had to fly 7 approaches to land. He also stated that he ‘could have done a better job, as I can get into Esperance no problems even when the cloud base is 100 feet Above Ground Level’.”
16. Mr Repacholi acknowledged that that incident had occurred but he added that it was “not the sort of thing that is going to happen in the future”.
“Low flying”
17. This ground refers to Mr Repacholi’s contravention of regs 157 and 166 of the CAR on 10 January 2002, as found by the Tribunal in Re Repacholi and Civil Aviation Safety Authority [2003] AATA 573 at paras 79, 82. Mr Repacholi did not dispute those findings.
“Threats and intimidation of CASA officers”
18. Mr Repacholi acknowledged that in July 2002 a Misconduct Restraining Order was issued against him in respect of 3 CASA officers with whom he had communicated by telephone following the suspension of his CPL in March 2002. He confirmed that he did not commit any breaches of that Order and that it has since expired. As regards his present relationship with CASA officers, Mr Repacholi said that he has a good relationship with those officers with whom he has to deal, especially those involved in the “flight standards” and airworthiness sections. His evidence continued:
“All right. In general, what do you say about your ability to deal professionally with CASA officers and delegates?‑‑‑Well, they know where we stand. We call a spade a spade. And I think we seem to get along all right even though there may be some ranting and raving going on sometimes. You know, things do cool down and we get on with business. It is just a case of having to get on with business.” (Transcript, p 23)
“Unsatisfactory past performance as chief pilot”
19. Mr Repacholi said that, in the period 1995-2002 when he was the Chief Pilot of Repacholi Aviation, he thought that his relationship with the CAA/CASA was very good. He acknowledged, however, that towards the end of that period a CASA audit of Repacholi Aviation resulted in several Requests for Corrective Action being issued. He said that those matters were rectified and that by 2002 the operations of Repacholi Aviation were again being conducted to CASA’s satisfaction. He said that at no time during that period was it suggested by CASA that his approval as Chief Pilot was liable to be cancelled.
20. In cross-examination Mr Repacholi was further questioned in relation to the abovementioned grounds on which the relevant reviewable decision was based.
21. As regards the requirement to make a radio call when flying into a CTAF area, Mr Repacholi disagreed with the proposition that it is a requirement to broadcast, inter alia, the call sign of the aircraft. When the relevant AIP provision (which states that the call sign must be broadcast) was quoted to him, Mr Repacholi said that he agreed with that in the sense that the call sign “should” be given. Earlier he had said that it is a “good idea” to give the call sign but that sometimes it is “easier” simply to describe the appearance of the aircraft.
22. As regards his dealings with CASA officers, Mr Repacholi acknowledged that he had not always behaved courteously towards certain officers. He initially denied that his behaviour constituted harassment but he ultimately acknowledged that his behaviour towards certain officers constituted “mild harassment”. He said that his language in oral communications with CASA officers has been courteous and professional “95% of the time”.
23. Mr Repacholi described his interaction with CASA officers who have performed periodic inspections or audits of Repacholi Aviation as “fairly good”. Asked to nominate a CASA officer with whom he did not have a good relationship, he referred to Mr Farquharson. He said he believed that Mr Farquharson had been instrumental in the making of the relevant decision to refuse to approve him as the Chief Pilot of Repacholi Aviation. He also intimated that he believed that Mr Farquharson had been instrumental in the earlier decision of CASA to suspend, and subsequently cancel, his CPL in March-June 2002. He acknowledged that in the afternoon of 5 March 2002, after receiving notice of the suspension of his CPL, he telephoned CASA officers Dolby, Siggins, Farquharson and Seager and expressed his anger regarding that suspension. He also acknowledged that in those telephone calls he used certain language (which, in the Tribunal’s opinion, can reasonably be described as coarse, abusive and hostile).
24. Mr Repacholi denied that, since 2002, he had continued to behave in a similar manner towards CASA officers. He acknowledged, however, that:
·on 21 July 2003 he telephoned CASA officer McDonald and, in the course of that conversation, said that he was instigating action to have caveats placed on the homes of 6 CASA officers including Mr Ogilvie and Mr Farquharson;
·in the course of a telephone conversation with CASA officer Pritchard on 22 August 2003 he said that he wanted a particular officer promoted to the position of Area Manager as the present incumbent (Mr Farquharson) might not be there much longer;
·in the course of a conversation with CASA officer Roberts on 25 August 2003 he said that he was placing caveats on the homes of 6 CASA officers;
·in the course of a conversation with CASA officer Seager on 1 September 2003 he referred to a Federal Police officer who was so afraid of him that he had taken out a restraining order.
Mr Repacholi denied that any of those conversations involved either a direct or a “veiled” threat by him. He acknowledged, however, that he had received a letter from Mr Farquharson dated 4 September 2003 informing him that, as a result of his communications with CASA officers since 21 July 2003, staff in the West Area Office of CASA had been instructed “not to engage in any form of verbal dialogue” with him. Mr Repacholi acknowledged, nevertheless, that he telephoned CASA officer Seager on 21 January 2004 and complained about CASA's refusal to approve a proposal for a float plane to land on, and take off from, Perth Water in the Swan River as part of the Australia Day “Skyshow” display.
25. As regards the incident involving the landing of a Sky West aircraft at Esperance aerodrome in November 2001, Mr Repacholi said that he was there awaiting the arrival of his (then) partner who was a passenger on that aircraft. He said that the pilot was having trouble landing the aircraft because of the weather and that the pilot had 5 or 6 attempts to land before landing safely. He agreed that after the aircraft had landed he had taken it upon himself to board the aircraft, enter the flight deck and berate the pilots for “scaring the passengers” by making several aborted attempts to land the aircraft. He said that he gave “short, blunt advice” to the pilot regarding landing the aircraft on instruments in bad weather.
26. Mr Repacholi was also questioned about his dealings with Frank Stynman (who had signed a witness statement for the purpose of these proceedings – see paragraph 34 below). Mr Repacholi confirmed that Mr Stynman operates a business which conducts charter flights to and from Rottnest Island and that Repacholi Aviation had formerly been in competition with Mr Stynman’s business at the time when it also conducted charter flights to and from Rottnest Island. Mr Repacholi acknowledged that he had, from time to time, verbally abused, and been “sarcastic” towards, Mr Stynman but he denied ever threatening him. As regards Mr Stynman’s witness statement (see paragraph 34 below), suffice it to say that Mr Repacholi denied all of the allegations against him made in that statement. He also denied that he had ever:
·made false bookings with Mr Stynman’s business;
·vandalised Mr Stynman’s advertising signs on Rottnest Island;
·deflated a tyre on one of Mr Stynman’s aircraft.
The evidence of Barry Alan Foster
27. Mr Foster confirmed that he had signed a witness statement dated 5 December 2005 for the purpose of these proceedings. In that statement, which was tendered in evidence (Exhibit A6), Mr Foster describes himself as “Chief Pilot, Chief Flying Instructor and Air Operator” and summarises his relevant qualifications and experience as follows:
“1. I am a qualified Australian commercial pilot (with Airline Transport Pilot licence endorsed with flight instructing and aerial agricultural ratings and flight testing approvals) and licensed aircraft maintenance engineer (‘LAME’) with 33 years experience in the operation of general aviation businesses including charter, flying training, aerial agricultural operations and maintenance.
…
5. A resume of my qualifications and experience, in so far as they relate to my opinion to be given in this proceeding, is as follows:
(a) Airline Transport Pilot Licence
Chief Pilot approval [‘CP’]
Chief Flying Instructor approval [‘CFI’]
Grade 1 flight instructor rating endorsed with agricultural day/night
Instrument and multi engine training approvals
Command multi engine instrument rating
Class 1 Agricultural rating
CASA approved test officer (‘ATO’) for the issue of pilot licences and ratings
Aircraft maintenance engineer’s licence
Maintenance technical inspector
Aerodrome reporting officer; and
Operator, Director, CP and CFI of own company with AOC in successful aviation business over 33 years; the activities of which include, among other things:
(i) Aerial agricultural operations
(ii) Flying training including the flight training of aerial agricultural pilots
(iii) Charter
(iv) Fire fighting, and
(v) Aircraft maintenance
(b) Commercial pilot since 1975
In excess of 18,000 flight hours experience
Endorsed to fly single, multi engine and turbine powered aircraft
Engineering endorsements for airframes group 1 – 4 and engines group 1 – 21
(c) I am the owner, CP and CFI of Dompter Pty Ltd, which holds an AOC authorising charter, flight training, aerial agricultural operations and firebombing; which operates an aircraft maintenance workshop and which operates 12 aircraft and employs seven people.
(d) In my capacity as a Delegate of CASA as an ATO, I have flight tested in excess of 300 candidates.
(e) I have successfully operated my aviation business for 33 years. I own two unlicensed airfields, one at Inverloch, Victoria and one at Deniliquin, NSW; and I own a licensed aerodrome at Leongatha, Victoria.
(f) Both my company and I have an excellent safety and compliance record with CASA and its predecessors.”
Mr Foster’s statement continues:
“6. I can form a good opinion regarding the fitness of a person to act as chief pilot, and the operational standards of an aerial agricultural operation from an inspection of the operation, including its aircraft, from a conference with the chief pilot, and from an inspection of the infrastructure and operational procedures put into place by an incumbent chief pilot.
7. The annual ‘audit’ conducted by CASA can often reveal a good indication of an operation and its administrative procedures.
8. From my inspection of the operation of Repacholi Aviation Pty Ltd and the procedures which have been put in place by Gerald Repacholi when he was chief pilot, from my conversations with Gerald Repacholi regarding operational matters and his responsibilities as chief pilot, I have formed the opinion that Repacholi Aviation Pty Ltd is as safe and as well run as most other aerial agricultural operations in Australia. The operational procedures were put into place by Gerald Repacholi, which reflects favourably on his suitability as chief pilot.
9. The last operational ‘audit’ conducted by CASA accords with my opinion. I conducted the 13 month check in respect of Denis Repacholi
…”
The evidence of Denis Repacholi
28. Denis Repacholi (the son of Gerald Repacholi) confirmed that he had signed a witness statement dated 13 December 2004 for the purpose of these proceedings. The relevant contents of that statement, which was tendered in evidence (Exhibit A7), are as follows:
“1. I am the director of Repacholi Aviation Pty Ltd which made application to CASA for approval of the appointment of [Gerald Repacholi] to be chief pilot of the company on 1 September 2003. Such application was refused by CASA by Notice dated 4 February 2004.
…
4. Repacholi Aviation Pty Ltd operates an aerial agricultural (crop dusting) and, until the resignation of Gerald Repacholi from the position of chief pilot, an aviation charter business. The charter side of the business included joyflights in conventional and seaplane aircraft, and other charter flights in single engine aircraft to destinations involving the carriage of passengers and freight as required. My living is dependant upon my position as director of Repacholi Aviation Pty Ltd, and the financial viability of the company.
5. Gerald Repacholi held the position of chief pilot of Repacholi Aviation Pty Ltd continuously from 10 February 1995 until March 2002, when he resigned his position as chief pilot for a period of time sufficient to deal with problems between himself and CASA to allow Repacholi Aviation Pty Ltd to continue to operate its business without it becoming embroiled in the dispute between himself and CASA which arose out of the flight on 10 January 2002 referred to in Gerald Repacholi’s statement…
…
8. … I agreed to continue to run the company as a sole director while Gerald Repacholi would ‘step back’ from his involvement with Repacholi Aviation Pty Ltd pending the resolution of his dispute with CASA on the understanding that when his licences were restored, the company would again make application to CASA for approval for Gerald Repacholi to be again appointed as chief pilot of Repacholi Aviation Pty Ltd.
9. To this end, I accepted the resignation of Gerald Repacholi as chief pilot and his directorship of Repacholi Aviation Pty Ltd. I subsequently made application to CASA for the appointment of Mr Fred Hampton as replacement chief pilot of the company.
10. In March 2002 Repacholi Aviation Pty Ltd appointed Mr Fred Hampton as replacement chief pilot of Repacholi Aviation Pty Ltd. Mr Hampton was assessed by CASA and his appointment was subsequently approved by [CASA].
11. Mr Hampton’s aviation qualifications and experience were less than those of [Gerald Repacholi], however, Mr Hampton was the only available person at the time qualified to be appointed as chief pilot of an AOC holder which conducted aerial agricultural operations as well as charter. CASA assessed Mr Hampton as not being suitably skilled or experienced to act as chief pilot of an organisation conducting charter operations, however, Mr Hampton was assessed as being suitable to act as chief pilot of an organisation conducting aerial agricultural operations (crop dusting), and that he could reapply for assessment for charter operations after he gained some suitable charter experience.
12. There was no alternative chief pilot available to be appointed for Repacholi Aviation Pty Ltd, and the company was left with no real option but to make a request to CASA to vary the AOC by restricting the flight operations authorised under the AOC to aerial work operations, which included aerial agricultural operations.
13. This restrictive variation has caused financial harm to Repacholi Aviation Pty Ltd by reason of the loss of profits which would otherwise have been made if the restriction on charter operations was not imposed by CASA.
14. Apart from the restriction placed on the AOC resulting from the assessment of Mr Hampton as chief pilot, the company has had no problems with CASA, which has conducted routine surveillance on the company and its operations since the appointment of Mr Hampton. To the best of my knowledge, there are no outstanding issues with CASA nor any pending Notices against the company threatening any administrative or other action.
15. When the Tribunal set aside the decision made by CASA to cancel the pilot licences held by Gerald Repacholi, the opportunity arose to again have Gerald Repacholi re-appointed as chief pilot of the company, which would allow it to again resume the charter side of the business. There was no reason for me to believe that CASA would refuse to approve an application for Gerald Repacholi to again be reappointed as chief pilot
16. On 1 September 2003, Repacholi Aviation Pty Ltd made a request to CASA that Gerald Repacholi be appointed as chief pilot of the company.
…”
Additional evidence
29. Additional documentary material was tendered in evidence (Exhibits A2, A3, A4, A5, A8, and A9) on behalf of Repacholi Aviation, but it is unnecessary to refer in detail to that evidence in these reasons.
CASA’s Case
30. CASA’s case comprised the “T Documents” (T1 – T59, pp 1 – 236) lodged with the Tribunal by it in accordance with s 37 of the Administrative Appeals Tribunal Act 1975 (Cth), the oral evidence of Craig Eastman, Frank Stynman, Richard Seager and Terry Farquharson, and various exhibits which were tendered in evidence (Exhibits R1 – R11).
The evidence of Craig Eastman
31. Mr Eastman said that he is a commercial pilot employed by Skywest Airlines which operates at the Perth Domestic Airport. He said that he was a Captain on Fokker 50 aircraft for approximately 7 years and has been a Captain on Fokker 100 aircraft for approximately 1 year.
32. Mr Eastman confirmed that he had written a letter dated 19 November 2001 to Captain Wal Slaven, the (then) Chief Pilot of Skywest Airlines, regarding an incident which had occurred at Esperance aerodrome on 16 November 2001. The contents of that letter are as follows:
“Described below are the events of Friday the 16th of November 01, Flight number 7605.
After landing at Esperance Mr William Lance who was a passenger on board the aircraft entered the flight deck with my authorisation to express his gratitude, after we conducted 7 instrument approaches before we could land.
A person who was unknown to me and who was later identified to me by an Esperance ground member as Mr Gerard (sic) Repacholi then entered the flight deck without my authorisation and expressed his amazement at us taking 7 instrument approaches to land. He stated that he could have done a better job, as he can get into Esperance no problems even when the cloud base is overcast at 100 feet AGL from an instrument approach.
Believing he was a passenger on the aircraft I politely told Mr Repacholi that we had rules and regulations to abide by and that safety was our number one concern. If this meant us having to return to Perth then so be it. I then ignored him and continued my conversation with Mr Lance. Mr Repacholi listened to our conversation for some minutes and then left the aircraft and loitered around the base of the stairs. He had no authorisation to be on the tarmac. Miss Virginia Hollis spoke with Mr Repacholi for some minutes and after some time he left. I only heard Miss Hollis telling Mr Repacholi how Andrew Caldow and myself were excellent pilots and in her opinion the best in the company. Miss Hollis later told me that Mr Repacholi had indicated to her that we needed to go to America to learn how to really fly and that he had sixteen thousand hours and could have done a much better job.
I also found out later that Mr Repacholi was not actually a passenger on board the aircraft but had come from the terminal and boarded the aircraft by lying to both Miss Virginia Hollis and Miss Kea Upshaw (sic) telling them that he was a passenger returning to the aircraft having forgotten something.
As I believed Mr Repacholi to be a passenger I did not want to express my real feelings towards his comments and gave him the benefit of the doubt.
Obviously the security at Esperance needs to be reassessed. I also recommend that if a passenger need to re-board an aircraft then his boarding pass should be viewed by the Flight Attendants before he is allowed on the aircraft.” (T28, p 122).
33. The Tribunal notes that the T Documents also contain other documents in relation to this incident, including a report dated 16 November 2001 by Ms Virginia Hollis, the Second Flight Attendant on board the relevant Skywest aircraft. Ms Hollis’ report states as follows:
“The perpetrator walked across to the aircraft with a passenger who was on flight 7605, and went to walk up the stairs. I asked them if they had left something on board and they said yes, so I told them to remain at the bottom of the stairs until all the passengers had disembarked, however the perpetrator ran up the stairs and into the flight deck. I turned to the woman and asked her what he was doing? She replied ‘He needs to speak to the captain’. His behaviour and demeanour lead me to believe that he was associated with the Skywest operations at Esperance. He seemed to know Bill the refueller, engaged in conversation with the pilots, and was moving around the airport facilities as if he owned the place without any of the ground staff indicating otherwise.
When the perpetrator left the flight deck he then proceeded to tell me that he had 16,000 hours flying and had landed here many times in worse weather conditions. He suggested that Skywest pilots should be trained in America as it was obvious that their current technical skills and training were inadequate. I responded by informing the perpetrator that Skywest has safety as their number one priority and that all airlines must follow and abide by Civil Aviation Safety Authority regulations. I also told him that I valued my life and that I felt extremely comfortable flying with Skywest as I knew that their safety standards were the best. I reinforced the point by informing him that Captain Craig Eastman was our youngest Check Captain and had obtained that position due to his uncompromising professionalism and skill. That was the end of the conversation.” (T28, p120).
The evidence of Frank Stynman
34. Mr Stynman confirmed that he had signed a witness statement dated 6 February 2005 for the purpose of these proceedings. The contents of that statement, which was tendered in evidence (Exhibit R8), are as follows:
“1. I am the principal of Rottnest Air Taxi, which is a trading name for my business, which conducts charter operations in aircraft pursuant to an Air Operator’s Certificate issued by CASA. I have been conducting charter operations since December 1993. I am the holder of a commercial (aeroplane) pilot licence.
2.Since December 1993, I have conducted charter flights to and from places in Western Australia, including Rottnest Island.
3.Between 1995 and mid 2004 I have often observed Gerald Repacholi flying aircraft to Rottnest Island without making a radio broadcast that his aircraft was entering the CTAF at Rottnest Island.
4.The first occasion was sometime in the summer in 1995 or 1996. I was conducting flights over Rottnest Island when I was involved with a near collision of Cessna aircraft VH- BWW after it had failed to make any radio calls. Upon landing the pilot named himself to me as Gerald Repacholi. When I queried him as to his lack of radio calls he became abusive and aggressive towards me.
5.In 1998, Gerald Repacholi began flying aircraft on charter operations to Rottnest Island, and I observed him continue to avoid making radio calls in the CTAF. I understand that one reason a pilot will not make a radio call is to avoid the imposition of landing charges.
6.When I advised CASA officer Winston James of my concerns he said to me that Gerald Repacholi was known to him, and that I ‘should watch my fuel stores’ if Gerald Repacholi had been near them.
7.Within 24 hours of that meeting Gerald Repacholi telephoned me and threatened me. He said I was not to discuss with CASA what he did on Rottnest Island. He also said ‘soon you will never fly again’.
8.At around this time I began receiving a pattern of ‘withheld number’ telephone calls and also telephone calls from numbers that I soon learnt belonged to Mr Repacholi’s hangar on my 1800 free call number. These generally consisted of silence then hanging up, but were occasionally threatening and occasionally attempted disguised calls to make false bookings.
9.I have observed and heard that no radio calls were made on most of the occasions that Gerald Repacholi was flying an aircraft to Rottnest Island. At the time this caused me concern, because if I was flying an aircraft in the vicinity of Rottnest Island I did not know where his aircraft was located.
10.When Gerald Repacholi was the pilot – when I observed him on the ground at Rottnest Island – the calls were either not made, or deliberately incomprehensible or occasionally referred to ‘Cessna 172’ as the call sign.
11.At this time other pilots mentioned to me that the call sign of my own aircraft VH-WWL was being used by aircraft that obviously weren’t mine. This occurred not only on Rottnest Island but I have also received invoices from this period from Cunderdin and Geraldton aerodromes. The Geraldton aerodrome operator subsequently played to me the recording of my call sign there, and the voice was immediately recognisable to me as Gerald Repacholi’s.
12.This behaviour continued when Gerald Repacholi began flying VH-THD to Rottnest Island. I am aware of an incident before that call sign was ever known to me and my pilots, that VH-THD was involved in a near miss with another aircraft doing NDB training at Rottnest Island due to making no radio calls.
13.An employee of mine observed the landing of VH-THD whilst taxiing, and said to the other aircraft on the radio ‘I know who that will be’, at which point it was Gerald Repacholi who finally spoke on the radio to complain about that radio call. The staff at Jandakot Airport approached me sometime after this, regarding the movements of my aircraft there. They had me down as arriving more times at Jandakot than I was departing. The only aircraft they had that was earning less landing fees than its departures suggested was VH-THD.
14.At no time at all have I ever seen Gerald Repacholi, or his passengers, or his pilots, wear life jackets in the aircraft for the over-water route to Rottnest Island. At no time, when I have been in a position to observe his aircraft en-route to or from Rottnest Island, have I ever seen his aircraft fly above 1500 feet AGL. On 16 January 2001, I observed aircraft VH-THD flying to Rottnest Island on a charter flight, at 1500 feet AGL. I also observed that the occupants of the aircraft, including the pilot, did not wear life jackets.
15.On 6 October 2000, I observed the arrival of VH-THD to Rottnest Island. Gerald Repacholi was the pilot with two elderly passengers. I heard him say to them that he or possibly another pilot would return at 3pm to pick them up. Later that day I observed the same aircraft return with two young pilots who then left the airport to go into the settlement. I observed the aircraft was leaking considerable quantities of fuel from the wing down the edges of the door and over the windows of the aircraft.
16.I know the aircraft was conducting a charter, as the passengers, two elderly ladies, arrived at the airport to state they were there to catch their ‘Rottnest Airbus’ flight back to Jandakot. When the pilot and his mate returned to fly their passengers back to Jandakot I took them aside and suggested to them that they needed to make other arrangements. They stated to me that they knew that it was leaking, that the boss knew about it, and that it was fine. One said it was a fuel pump overflow from the wing tip tanks. They then departed to Jandakot with the passengers.
17.In the year 2002, I observed Gerald Repacholi arrive on Rottnest Island to pick up some passengers. The passengers were two young surfers. I was able to observe the two passengers and their surfboards being loaded into the aircraft and departing. There was no restraint placed on the surfboards, and I do not know how it can be possible to carry surfboards safely in a Cessna 172.
18.Gerald Repacholi’s threatening behaviour towards me has extended itself to the road. On three separate occasions he obstructed me on a road in one of his Ford utilities. On two of those occasions I was forced to take evasive action to prevent a deliberate collision. Around April 2002 I was warned by Jandakot Airport staff that Gerald had threatened to kill me, and was advised to take out a restraining order.” (original emphasis)
35. In his oral evidence Mr Stynman elaborated upon certain parts of his abovementioned witness statement as follows:
· as regards paragraph 3 of his statement, he confirmed that the number of times in the period 1995-2004 when, to his certain knowledge, Gerald Repacholi failed to make the relevant radio call was “about a handful to 10 times”;
· as regards the three motor vehicle incidents referred to in paragraph 18 of his statement, the first occurred in about 1995 or 1996, the second occurred in about 2000-2001, and the third occurred after April 2002.
36. Mr Stynman said that on several occasions advertising signs for his business on Rottnest Island had been vandalised or removed. He acknowledged that he had not seen these actions taking place but he said that Gerald Repacholi had been on Rottnest Island when these actions occurred.
The evidence of Richard Seager
37. Mr Seager confirmed that he had signed a witness statement dated 2 February 2005 for the purpose of these proceedings. The contents of that statement, which was tendered in evidence (Exhibit R10), are as follows:
“1.I am employed by the Civil Aviation Safety Authority (CASA) as a Flying Operations Inspector in the West Area office located in Perth.
2. I have been employed by CASA in this position since 11 September 2000. Prior to this position I was employed by ... CASA as a Flying Operations Inspector in the Jandakot Office; a position I have occupied since November 1994. I have held a commercial pilot licence since 19 July 1989 and an air transport pilot licence since May 1992. My current responsibilities include:
(a) conducting ground and air surveillance of operators and operations in accordance with prescribed schedules to ensure compliance with regulatory requirements;
(b investigating accidents, incidents, complaints or other reports and initiate any necessary action in regard to deficiencies or breaches of the legislation;
(c)making assessments and recommendations in relation to applicants for ‘Chief Pilot’ and conducting surveillance to ensure continued suitability for appointment;
(d)making assessments and recommendations in relation to applicants for the issue of an Air Operator’s Certificate;
(e)conducting required checks of procedures, facilities and services of air operators and provide reports and recommendations;
(f)conducting flight tests for the issue of Pilot Licences and the issue and renewal of ratings as required.
Audit of Repacholi Aviation Pty Ltd – 12 October 2000
3.I conducted a periodic inspection on Repacholi Aviation Pty Ltd on 12 and 18 October 2000. The inspection on 12 October was confined to flying operations issues only, as the assigned airworthiness (sic) was ill and was not available until 18 October. The inspection was conducted in a small front office of Repacholi Aviation’s aircraft maintenance hangar at Jandakot Aerodrome. I issued the following Requests for Corrective Action (RCA) (pages 98-106 T documents).
4.RCA 602817 – during the inspection I did not observe any evidence that Mr Repacholi, as chief pilot, had any control of aircraft or personnel.
5. RCA 602828 – No records of flight and duty times were made or retained for pilots Kay, Savvas and Martin for the preceding 12 months. I only saw records for Martin Earl for the period August/September 2000. Clause 2.3 of appendix 1 to section 82.1 of the Civil Aviation Orders provides:
‘2.3 Each operator must maintain:
(a) up-to-date records showing the recent experience status of each flight crew member and the currency of licences, ratings and endorsements held by each member; and
(b) up-to-date records showing the flight time and duty time achieved by each flight crew member during the immediately preceding 7 consecutive days, 30 consecutive days and 365 days and during each fortnight standing alone for the preceding 12 months.’
6.Paragraph 1.3 of section 48.0 of the Civil Aviation Orders relevantly states:
‘The holder of a pilot licence other than a private pilot licence who engages in aerial work, charter, or regular public transport operations, shall be subject to the flight and duty time limitations specified by CASA in section 48.1 of this Part.’
7.During an audit of Repacholi Aviation in 1996, I observed that no records of flight and duty times had been retained for the previous 12 months (see non-compliance notice at page 37 T documents). On 8 May 1996, Mr Repacholi wrote to me stating that in his view it was not necessary to retain flight and duty records for pilots engaged in agricultural operations (page 39 T documents).
8.RCA 602819 – There was no record of any pilots, including Gerald Repacholi, completing an approved dangerous goods course (other than Martin Earl). In agricultural operations, aircraft are routinely carrying dangerous goods in the form of pesticides and other chemicals. Mr Repacholi said to me words to the effect that he did not know that it was necessary for pilots to complete the course.
9.RCA 602820 – During the preceding 24 months, neither Mr Repacholi as the chief pilot nor any other pilots employed by Repacholi Aviation had been certified in the execution of emergency procedures.
10.Section 12 of section 20.11 of the Civil Aviation Orders provides that a crew member shall not be assigned or accept assignment to emergency duties in an aircraft engaged in a charter operation unless the crew member has undertaken and passed the proficiency test specified in appendix IV to the Order. The test must be taken and passed annually. Section 11 of the Order requires the operator to assign to a pilot, functions to be performed in an emergency. The Order requires the functions to be such ‘ as to ensure that any reasonably anticipated emergency can be adequately handled and shall take into consideration the possible incapacitation of individual crew members’.
11.Mr Repacholi was unaware of his responsibility as chief pilot to ensure the conduct of CAO 20.11 checks. Mr Repacholi appeared to have very little knowledge required of a chief pilot, and became agitated and attempted to outplace blame when he was advised that the operations were not in accordance with regulatory requirements.
12. Mr Repacholi said he believed that he met his chief pilot obligations when he conducted his assessment flight on a pilot prior to, or on commencing their employment. He believed it was the responsibility of the pilot to ensure he was appropriately licensed and qualified, in accordance with regulatory requirements. He continually stressed that the pilots he employed at Coral Bay kept letting him down and that this reflected on the poor standard of training that young pilots were receiving; rather than accepting his responsibility for the training and supervision of his pilots. When I made him aware that aircraft VH-EUK was not maintained to the charter category, he immediately blamed the maintenance personnel rather than accepting his responsibility as the aircraft certificate of registration holder.
13.RCA 602821 – No passenger manifests for the previous 3 months and no trip records for the previous 12 months were retained, other than such records relating to Martin Earl for the period August-September 2000. The Maintenance Releases of aircraft indicated that charter flights were being made in Coral Bay. I also asked Mr Repacholi about Coral Bay operations and was told by him that joy flights and sightseeing flights were regularly flown on behalf of a local tour operator (Coral Bay Adventures).
14. Section 2.4 of section 82.1 of the Civil Aviation Orders requires a charter operator to maintain documentation to ensure compliance with appendix 1 to the Order. Clause 2.5 of the appendix relevantly states:
‘2.5 Each operator must provide the following documentation:
(a) copies of expired maintenance releases and approved trip records for all aircraft covering the immediately preceding 12 months of operation, where applicable;
(b) for aircraft having a maximum take-off weight exceeding 5700 kg, copies of previous loadsheets as required by section 20.16.1 for the immediately preceding 3 months of operations;
(c) copies of passenger lists as required by section 20.16.1 for the immediately preceding 3 months of operations;
(d) fuel instructions and records as required by regulation 220 for all aircraft for the immediately preceding 12 months of operations.’
15.RCA 602822 – Gerald Repacholi’s pilot log book did not show that he had conducted any flight check or proficiency check on any of the pilots employed by Repacholi Aviation for the preceding 24 months.
16.RCA 602823 – There were no training files (or any file) of any pilot (other than for Martin Earl). Clause 2.4 of appendix 1 to section 82.1 of the Civil Aviation Orders provides:
‘2.4 Each operator must maintain a training file in respect of each flight crew member, recording at least:
(a) each ground training course completed or attempted, including the results for each phase or subject and the final assessment of the standard achieved; and
(b) each endorsement training course completed or attempted, including the results of each phase of training, the number of times each exercise was undertaken and the results of each test or check; and
(c) each flight or simulator proficiency check completed or attempted, including the results of each phase of training, the number of times each exercise was undertaken and the results of each check; and
(d) each period of training, other than training referred to in paragraph (a), (b) or (c), undertaken in an aircraft or simulator, including the exercises completed or attempted, and an assessment of the standard achieved.’
17.When I raised this with Gerald Repacholi, he said words to the effect he did not conduct proficiency checks or need to keep training records because he would look out the window of his office at pilots landing and determine from that whether the pilots were doing the right thing.
18.RCA 602812 – Mr Repacholi was maintaining aircraft VH-EUK to a private category and not charter category. This meant the engines of the aircraft were not being maintained in accordance with the aircraft manufacturer’s maintenance requirements.
19. In Mr Repacholi’s response to RCA 602817 (page 110 T documents) he states:
‘Files kept at another address. However on the days in question current records were in transit from old office to new and then to be taken to Jt (Jandakot) office etc All files are to be gather (sic) in one filing system.’
20. During the audit I raised the issue of the lack of records and later in the letter covering the issue of the RCAs said: ‘As discussed at the time, I was most disappointed with the almost total lack of systems and procedures to control the organization...’
21. At the audit I was not informed by Mr Repacholi of a move of office at the time. During the audit he provided no explanation for the lack of documentation other than attempting to blame others for not providing adequate documentation. In particular, he said the pilots at Coral Bay let him down and left the organization without sending him required operational documents.
22.This shows that Mr Repacholi was taking no steps as a chief pilot to obtain operational documentation. Without doing so, I do not consider a chief pilot can supervise operations, because for example, the chief pilot would not be aware about flight and duty time limitations a pilot may be subject to any given point in time.
23. At the end of the audit I had exit discussions with Mr Repacholi and made it abundantly clear that I was very disappointed with his standard of operations. I advised him of the RCAs that would be issued and ensured that he understood the immediate action required under Safety Alert issued against VH-EUK.
24. He said he believed that most of the missing records would be in Coral Bay and that he would forward them to me. With the exception of operations conducted by Martin Earl, no further documents were forthcoming. Mr Repacholi told me that Regan Kau and Mario Savvas had left West Australia and were unable to be contacted. He said they had not forwarded any flight and duty times or trip records to him.
25.I conducted further periodic inspections on Repacholi Aviation Pty Ltd on 10 December 2001 and June 2002. I inquired about the missing documents from the 2000 audit but nothing was available.
26.I had conversations with Mr Repacholi and Martin Earl who both explained that Mr Repacholi had engaged Mr Earl to attend to (a) putting into place systems and procedures for the retention of documents and recording of information, and (b) monitoring that this was occurring. I would have expected Mr Repacholi as the chief pilot to have attended to these matters.
27. Clause 2.2 of appendix 1 to section 82.1 (sic) of the Civil Aviation Orders details the chief pilot’s responsibilities:
‘(a) ensuring that the operator’s air operations are conducted in compliance with the Act, the Civil Aviation Regulations 1988, the Civil Aviation Regulations 1998 and the Civil Aviation Orders;
(b) arranging flight crew rosters;
(c) maintaining a record of licences, ratings, and route qualifications held by each flight crew member, including:
(i) validity; and
(ii)recency; and
(iii) type endorsements and any applicable licence restrictions;
(d) maintaining a system to record flight crew duty and flight times to ensure compliance with duty and flight time limitations, in accordance with Part 48 of the Orders;
(e) ensuring compliance with loading procedures specified for each aircraft type used by the operator and proper compilation of loading documents, including passenger and cargo manifests;
(f) monitoring operational standards, maintaining training records and supervising the training and checking of flight crew of the operator;
(g) conducting proficiency tests in the execution of emergency procedures and issuing certificates of proficiency as required by section 20.11;
(h) training flight crew in the acceptance and handling of dangerous goods as required by the Civil Aviation Regulations 1988 or the Orders;
(i) maintaining a complete and up-to-date reference library of operational documents as required by CASA for the class of operations conducted;
(j) allocating appropriate aircraft.’
28. The 2000 audit demonstrated that Mr Repacholi had not discharged and/or did not understand his responsibilities as a chief pilot as they related to paragraphs 2.2(c), (d), (f), (g) and (h) of appendix 1 to CAO 82.1 (sic).
Rottnest Island
29.It has been reported to CASA that Gerald Repacholi often flies aircraft to Rottnest Island without making the requisite radio call at the CTAF area boundary, which is at a 5nm radius from Rottnest Island Aerodrome.
30.At the 2000 audit Mr Repacholi said to me he only conducted private operations to Rottnest Island. Rottnest Island is located in a Common Traffic Advisory Frequency (CTAF). Paragraph 4.2.3 of ENR 1.4 of the Aeronautical Information Publication (AIP) states: ‘… when flying radio-equipped aircraft, pilots are required to make broadcasts on the CTAF.’ Paragraph 63.1 of ENR 1.1 of the AIP states: ‘When approaching an aerodrome and before crossing the MBZ or CTAF area boundary, all [radio-equipped] aircraft must broadcast the following details….on the CTAF: call sign and aircraft type, (b) position (reported as distance with either the radial, bearing, or quadrant from the aerodrome); (c) level; and (d) intentions.’
31.A pilot not complying with these requirements is not complying with instructions for visual flight rules (VFR) flights issued in the AIP in accordance with regulation 174D of the Civil Aviation Regulations 1988.
32. The requirement to make a radio call in a CTAF is to facilitate the separation of aircraft in and around aerodromes in non controlled airspace. If a pilot fails to make a radio call that they are about to cross a CTAF area boundary, this will create a dangerous situation in that other aircraft in and around the CTAF area boundary will fly and navigate assuming there is no other aircraft present.
Life Jackets
33.It has also been reported to CASA that Gerald Repacholi has flown aircraft to and from Rottnest Island below 2000 feet above the water, with passengers not wearing life jackets. Paragraph 5.1.1 of section 20.11 of the Civil Aviation Orders states:
‘Aircraft shall be equipped with one life jacket for each occupant when the aircraft is over water and at a distance from land:
(a) in the case of a single engine aircraft – greater than that which would allow the aircraft to reach land with the engine inoperative; and
(b) in the case of multi-engine aircraft – greater than 50 miles.’
34.A small single engine aircraft travelling between Rottnest Island and a place in Western Australia such as Jandakot, would not be able to glide and reach land in the event that its engine became inoperative if the aircraft was 2000 [feet] above the water. Paragraph 5.1.7 of the Orders states:
‘Where life jackets are required to be carried in accordance with subparagraph 5.1.1(a) each occupant shall wear a life jacket during flight over water. However, occupants of aeroplanes need not wear life jackets during flight above 2000 feet above the water.’
35.In the event of an emergency, which resulted in the ditching of the aircraft into water, if an aircraft is at a lower height than required, the passengers will have less time to locate and put on life jackets.
Chief pilot application
36.On 1 September 2003, Gerald Repacholi telephoned me and asked me to appoint him as chief pilot. I advised him that Repacholi Aviation was required to submit a formal application. Mr Repacholi responded by saying that was not going to happen, that he was going to pursue CASA officers through legal channels. He then recounted a story whereby he had sent someone to a person’s house who owed him money and that person had then apologised and that a federal police officer was so afraid of him, that he had to take out a restraining order against him. I do not know why he told me this in the context of asking to be approved as chief pilot.”
38. Mr Seager also confirmed that he had signed a statement dated 2 April 2002 for the purpose of the previous Tribunal proceedings regarding the cancellation of Gerald Repacholi’s CPL (see paragraph 4 above). The contents of that statement, which was also tendered in evidence (Exhibit R9), are as follows:
“…
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 video tape 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 video tape 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.
…
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.”
39. In his evidence-in-chief Mr Seager confirmed that he had recently conducted an audit of Repacholi Aviation for the purpose of renewing its AOC and he said that the company was presently operating satisfactorily. He said that the performance of the present Chief Pilot (Mr Hampton) was satisfactory and that his supervision by the company’s sole director (Mr D Repacholi) was adequate.
40. Mr Seager said that he first met Gerald Repacholi in 1994/1995 shortly after he joined CASA. He described their relationship as “robust … at times” but added that, although Mr Repacholi had “said things”, he had never threatened him personally.
41. In cross-examination Mr Seager was referred to the Air Operator Certification Manual (Exhibit R7 – see paragraph 9 above) and he acknowledged that, in accordance with para 7.8.3.2.6.3 of that policy document, Gerald Repacholi was entitled to be reinstated as Chief Pilot of Repacholi Aviation provided that there was “nothing adverse known about [his] personal compliance history since [he] was last Chief Pilot that would preclude the approval”. Mr Seager added, however, that such reinstatement was not automatic and that Mr Repacholi would first have to be interviewed regarding his personal compliance history.
42. Mr Seager confirmed that he had had dealings with Repacholi Aviation for much of the period that he has been with CASA, and he agreed that during that period Gerald Repacholi’s performance as Chief Pilot was “adequate” and that CASA had never taken any adverse action in relation to Mr Repacholi’s position as Chief Pilot. Mr Seager referred to the “dip” in Repacholi Aviation’s compliance regarding its charter operations in 2000 but he said that Mr Repacholi took steps to fix those problems and that the audit of the company in June 2002 (shortly after Mr Hampton’s approval as Chief Pilot) proved to be satisfactory.
43. Mr Seager confirmed that some years previously Frank Stynman had reported to CASA that a Cessna aircraft flown by Gerald Repacholi to Rottnest Island was leaking fuel. He said that he arranged for a CASA airworthiness officer to investigate the matter and that that officer reported back that there was “nothing wrong” with the aircraft, and, accordingly, no further action was taken. Mr Seager agreed that he was aware of “some tensions” between Mr Stynman and Mr Repacholi and added that he has been aware during his 11 years of service with CASA that “they don’t get along”.
44. Mr Seager acknowledged that he had in the past dealt professionally with Gerald Repacholi when he was the Chief Pilot of Repacholi Aviation and that he would not have a problem dealing professionally with him in the future if he were again to become the Chief Pilot of Repacholi Aviation. He also acknowledged that, if Mr Repacholi again became the Chief Pilot of Repacholi Aviation, he could perform adequately in that capacity.
The evidence of Terry Farquharson
45. Mr Farquharson said that he is the Manager of the Perth General Aviation Field Office (known, prior to July 2005, as the West Area Office) of CASA, and that he has held that position for about 7 years. He confirmed that he had signed a witness statement dated 8 February 2005 for the purpose of these proceedings. The contents of that statement, which was tendered in evidence (Exhibit R5), are as follows:
“1.I am employed by the Civil Aviation Safety Authority (CASA) as the Area Manager of its West Area Office located in Perth. The Area Office is responsible for carrying out CASA’s core compliance and regulatory service functions and encouraging industry as they apply to the general aviation segment of the aviation industry, including maintenance organisations. The Area Manager is responsible for managing the office to ensure that it achieves the required performance and level of standardisation in all of its functions. My current responsibilities include:
(a)managing and coordinating all of the entry control, compliance and regulatory services, enforcement and administrative functions of the Area Office;
(b)promoting standardisation by ensuring that office technical staff carrying out compliance and regulatory service tasks comply with CASA policy, practices and procedures;
(c)ensuring that office management and administrative functions are conducted in accordance with CASA policy, practices and procedures, including budget and human resource management;
(d)fostering, within the office, a multi-disciplinary teams-based approach to compliance and regulatory service functions to the maximum extent practicable.
2.During the week of 10-14 January 2005, I was contacted by an industry member who wished to provide information in relation to the death of a WA based agricultural pilot during night spraying in Western Queensland. At the conclusion of the conversation the informant asked me if I had heard any rumours about Gerald Repacholi’s health. I said I hadn’t and the informant then said Mr Repacholi had been found to have cancer, had been in hospital and was quite ill.
3.Between 17-20 January 2005, I was assisting Adam Anastasi in the Administrative Appeals Tribunal proceedings between Ian Byers and CASA. Mr Byers was represented by John Maitland, who I was aware was also representing Mr Repacholi in these proceedings.
4.On 17 January 2005, during a break in proceedings, I said to Mr Maitland that CASA had been told Mr Repacholi had suffered cancer and that he was particularly unwell, as it had spread. Mr Maitland’s response was along the lines that if this information were correct then a lot of people in CASA would be happy. I responded to Mr Maitland with words to the effect that nobody wished any such thing on anyone, including Mr Repacholi.
5.The following day at approximately 12.55pm the Tribunal rose for the lunch break. I moved towards the door of the hearing room and as I neared it was pushed open with some force by Gerald Repacholi. Mr Repacholi was clearly agitated and distressed. He pushed two photographs into my hand demanding to know what these represented. I had been previously made aware that Mr Repacholi had taken photographs of two diagrams I had drawn on a white board during Tribunal proceedings involving the cancellation of his pilot licence. I responded that they looked like something I’d roughly drawn during his AAT hearing. He then snatched the photographs back from me.
6.Mr Repacholi’s conversation then became quite disjointed. He commented to the effect that first it was CASA accusing him of being ‘psycho’ and now CASA was saying he was dying of cancer. This was never said in my conversation with Mr Maitland. Mr Repacholi then said words to the effect that this had to stop and that he would be taking the matter to the ‘Minister for Aviation’.
7.Mr Repacholi’s tone and approach I perceived as threatening and he concluded this segment of the conversation with a sarcastic comment to the effect of ‘compliments of the season’ at which point he thrust a peanut into my hand.
8.He then moved towards the door of the AAT Ante Room, stopped and turned to address me further. I had moved in the Ante Room as he moved backwards. He indicated that I should step outside the AAT rooms but I did not, choosing instead to remain at the main door.
9.Mr Repacholi then spoke to me in a very low and threatening tone and said words to the effect of ‘if I did have cancer and only had two months to live then I would be doing some house keeping, settling old scores and there would be a few people sucking air as a result’. I took this to be an indication that he would take physical action against those who he considered had wronged him, including CASA officers.
10.This is not the first time Mr Repacholi has said things to me that I perceived as threatening and I have been under the protection of a Violence Restraining Order and subsequently a Misdemeanour Order during the time following the cancellation of his pilot licence.”
46. Mr Farquharson also confirmed that he had signed a statement dated 21 March 2002 for the purpose of the previous Tribunal proceedings regarding the cancellation of Gerald Repacholi’s CPL (see paragraph 4 above). The contents of that statement, which was also tendered in evidence (Exhibit R4), are as follows:
“…
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 at 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.
As 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 calm 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 flown (sic) 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 not of his Air Operator’s 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 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.”
47. In his oral evidence Mr Farquharson referred in general to the position of Chief Pilot within an air operator organisation. He said that the Chief Pilot provides a link between the organisation and CASA and that it is “vital” that CASA is able to establish a “strong, open, honest working relationship” with the person occupying that position in the organisation. He added that the Chief Pilot is responsible for establishing the safety culture and the behaviour standards of the organisation and provides an “exemplar” for other pilots in the organisation.
48. Mr Farquharson said that he has, from time to time, received communications from persons in the aviation industry complaining about other persons in the industry. He confirmed that such communications might include complaints of “threatening or harassing behaviour” but that complaints of that nature were received by him “very infrequently”. He confirmed, however, that during the last 5 years he had received such complaints about Gerald Repacholi on “five or more occasions”. He also confirmed that he had perceived certain communications from Mr Repacholi to himself as “threatening” and that a Misconduct Restraining Order had been made in July 2002 against Mr Repacholi for the benefit of certain CASA officers including himself.
49. Mr Farquharson described CASA’s relationship with the present Chief Pilot of Repacholi Aviation (Mr F Hampton) as “very good” and he said that Mr Hampton is “discharging his safety responsibilities well”. He said that, if Gerald Repacholi were to replace Mr Hampton as the Chief Pilot of Repacholi Aviation, he would expect that the relationship between the Chief Pilot and CASA would change and involve “a degree of tension” and he doubted that CASA would in that event continue to receive a “completely open response” regarding the flying operations of Repacholi Aviation.
50. As regards the period from February 1995 to March 2002 when Gerald Repacholi was the Chief Pilot of Repacholi Aviation, Mr Farquharson said that the company was “average”. He referred, however, to a “major lapse” as revealed in a CASA audit in 2000 but added that by the following year the company’s performance had “improved”. He described Mr Repacholi’s performance as Chief Pilot of Repacholi Aviation as “adequate”. Asked whether he was confident that Mr Repacholi would perform adequately as Chief Pilot of Repacholi Aviation if his re-appointment to that position were to be approved, Mr Farquharson responded:
“That would rest very much on his assessment of how – what his level of knowledge was and his assessed capabilities. I think mechanically – and when I say that, so we could look at the company as it is at present and say that it’s doing quite well on the basis of the last audit. One could only hope that that – if Mr Repacholi was reappointed, that he – that that level of performance would continue.” (Transcript, p 267)
51. In cross-examination Mr Farquharson reiterated the importance of an “open and honest relationship” between the Chief Pilot of an organisation and CASA and he confirmed that, if Gerald Repacholi were to be approved as Chief Pilot of Repacholi Aviation, CASA would seek to maintain an open and honest relationship between them in the future. He acknowledged, however, that there has been a “history” between CASA and Mr Repacholi that could lead to Mr Repacholi’s being distrustful of CASA, and he agreed that CASA could initiate the process of rebuilding its relationship with Mr Repacholi – but, he added, it “would have to be a two-way process”.
52. Mr Farquharson confirmed that the Airworthiness section of his office has not had any problems dealing with Mr Repacholi in his capacity as a licensed aircraft maintenance engineer and chief engineer of West Coast Aircraft Maintenance. He agreed that the “tension” in the present relationship between Mr Repacholi and CASA had been partly contributed to by his office’s manner of dealing with Mr Repacholi, and he acknowledged that his office “could have perhaps discussed things a little more with Mr Repacholi”. He added that his office “could open dialogue” with Mr Repacholi with a view to developing a positive relationship between them. He said that, if Gerald Repacholi were approved as Chief Pilot of Repacholi Aviation, he would expect that he would perform adequately in that capacity as he had in the past.
Additional evidence
53. The Tribunal has also had regard to additional material in the T documents and other exhibits relied on by CASA, but it is unnecessary to refer in detail to that additional evidence in these reasons.
The Submissions
54. The parties made extensive oral, and supplementary written, submissions. These submissions (which will not be set out here) have been carefully considered by the Tribunal for the purpose of arriving at the following analysis and findings.
Analysis and Findings
55. There is no dispute that Gerald Repacholi is a very experienced pilot and that he has the technical qualifications, as prescribed by cl 4 in Appendix 1 of section 82.0 of the CAO, required for his approval as the Chief Pilot of Repacholi Aviation. The fact that he possesses those qualifications does not, however, necessarily entail the consequence that he will be approved as the Chief Pilot. The grant of such approval is conditional on satisfaction of the requirements specified in cl 1.3 in Appendix 1 and is, furthermore, discretionary. In exercising that residual discretion, regard must be had specifically to the responsibilities of a Chief Pilot, as set out in cl 2 in Appendix 1, and, more broadly, to “the safety of air navigation as the most important consideration” in accordance with s 9A(1) of the Act, and to other relevant considerations, depending on the circumstances of the particular case. The ultimate matter to be determined for the purpose of exercising that discretion in the present case is whether, having regard to the abovementioned considerations, Gerald Repacholi is a suitable person to be approved as the Chief Pilot of Repacholi Aviation.
56. The Tribunal regards as apposite the following extracts from the booklet entitled Chief Pilot Guide, produced by CASA, which was tendered in evidence (Exhibit R11):
“The position of Chief Pilot is nominated as one of the key personnel positions for holding an Air Operator Certificate (AOC). Without an approved Chief Pilot, an organisation cannot exercise the privileges of an AOC. The role of Chief Pilot requires a focus on regulatory compliance and is a critical link between the AOC holder and CASA. To be effective in the role, Chief Pilots must have the knowledge, experience and strength of character to balance the sometimes conflicting demands of safety and commercial considerations.
…
Chief Pilots are responsible for holding and carrying out the duties of one, and in many cases two, of the four ‘key personnel’ positions listed in the Act – namely, ‘the head of the flying operations part of the organisation’ and 'the head of the training and check part (if any) of the organisation’.
…
The Chief Pilot very much determines the safety culture of the organisation. High personal standards will serve as an example to other pilots. The regulatory standard is the minimum safety standard in any instance.
…”
57. The Tribunal now turns to the grounds on which CASA based its submission that Gerald Repacholi should not be approved as the Chief Pilot of Repacholi Aviation.
“False statement”
58. As regards Mr Repacholi’s writing the words “NO ACCIDENTS” under the heading “Flying history” in his application for approval as Chief Pilot dated 14 November 2003, notwithstanding the incident of 25 July 1995 referred to in paragraph 12 above, the Tribunal accepts Mr Repacholi’s explanation (as summarised in paragraph 12 above) and finds that the statement “NO ACCIDENTS” was not necessarily false or, if it was false, was not made with the intention of deceiving CASA. In the Tribunal’s opinion this matter does not reflect adversely on Mr Repacholi’s suitability to be approved as the Chief Pilot of Repacholi Aviation.
59. As regards Mr Repacholi’s answering “No” to the question “Have you ever been refused any Australian pilot licence or flight crew licence?” in his application for a student pilot licence on 19 January 1990 (see paragraph 13 above), the Tribunal finds that that was a false statement. In the Tribunal’s opinion, however, the making of that false statement in January 1990, even if it was made knowingly, does not, to any significant degree, reflect adversely on Mr Repacholi’s suitability to be approved as the Chief Pilot of Repacholi Aviation in 2006.
“Failure to make radio calls”
60. Having regard to the evidence of Mr Repacholi (summarised in paragraph 14 and 21 above) and of Mr Stynman (set out in paragraph 34 above), the Tribunal finds that, on a relatively small number of occasions in the period 1999-2002, Mr Repacholi, when entering the Rottnest Island CTAF, failed to make a radio call in accordance with the relevant AIP. In the Tribunal’s onion, however, the evidence before it in relation to that matter is not sufficiently substantial to impact adversely to a significant degree on Mr Repacholi’s suitability to be approved as the Chief Pilot of Repacholi Aviation.
“Conduct at Esperance aerodrome”
61. As regards the conduct of Mr Repacholi at Esperance aerodrome on 16 November 2001 (as described in paragraph 15 above), the Tribunal accepts the evidence of Mr Eastman – in particular the contents of his letter of 19 November 2001 (set out in paragraph 32 above) – in relation to that matter. Mr Repacholi’s conduct on that occasion can reasonably be described as very arrogant, heavy-handed and discourteous and, in the Tribunal’s opinion, it reflects poorly on his character. The Tribunal accepts that character considerations are generally relevant to the assessment of a person’s suitability to be approved as the Chief Pilot of an organisation but the Tribunal is not satisfied that the abovementioned conduct of Mr Repacholi necessarily renders him unsuitable to be approved as the Chief Pilot of Repacholi Aviation.
“Low flying” and “Threats and intimidation of CASA officers”
62. The “low flying” incident and aspects of Mr Repacholi’s allegedly threatening and intimidating behaviour towards certain CASA officers were considered by the Tribunal in Re Repacholi and Civil Aviation Safety Authority (above) for the purpose of determining whether Mr Repacholi was “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 CAR. The Tribunal’s conclusions in that case were expressed as follows (AATA at paras 90-93, ALD at pp 314-315):
“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 …. 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 …, 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.”
63. In the present proceedings there was also evidence before the Tribunal of relevant behaviour by Mr Repacholi towards, or in relation to, certain CASA officers since 2002 (see paragraph 24 above and the witness statement of Mr Farquharson set out in paragraph 45 above). The Tribunal, however, regards that post-2002 behaviour, for the most part, as a continuation of the 2002 behaviour and as primarily stemming from the same events, namely, the suspension and subsequent cancellation by CASA of his CPL in the period March-June 2002.
64. The Tribunal accepts (as previously stated) that character considerations are generally relevant to the assessment of a person’s suitability to be approved as the Chief Pilot of an organisation, and, furthermore, that that person’s willingness and capacity to maintain a constructive professional relationship with CASA is a very important consideration. Although the Tribunal accepts that Mr Repacholi’s abovementioned behaviour towards, or in relation to, certain CASA officers since March 2002 reflects poorly on his character, it is not satisfied that Mr Repacholi’s character and conduct are such as necessarily to preclude his developing and maintaining a constructive professional relationship with relevant CASA officers – including those officers towards whom he has been hostile and abusive since March 2002 – in the future. In this connection the Tribunal notes the evidence of Mr Farquharson that Mr Repacholi has continued to have a good working relationship with the Airworthiness section of CASA and that his office is willing to “open dialogue” with Mr Repacholi with a view to developing a positive relationship between them. The Tribunal also notes the evidence of Mr Seager that he had previously dealt professionally with Mr Repacholi when he was the Chief Pilot of Repacholi Aviation and that he would not have a problem dealing professionally with him in the future if he were again to be approved as the Chief Pilot of Repacholi Aviation.
65. Having regard to the abovementioned considerations, the Tribunal is not satisfied that either the “low flying” incident of 10 January 2002 or Mr Repacholi’s subsequent behaviour towards, or in relation to, certain CASA officers necessarily renders him unsuitable to be approved as the Chief Pilot of Repacholi Aviation
“Unsatisfactory past performance as chief pilot”
66. Mr Repacholi was the Chief Pilot of Repacholi Aviation from February 1995 to March 2002. During that period the following significant events, which reflected on Mr Repacholi’s performance as the Chief Pilot of Repacholi Aviation, occurred:
· the audit of Repacholi Aviation in October 2000 conducted by Mr Seager (the details of which appear in paras 3-24 of his witness statement set out in paragraph 37 above), which, according to Mr Seager (see para 28 of his witness statement), “demonstrated that Mr Repacholi had not discharged and/or did not understand his responsibilities as a chief pilot” as set out in paras (c), (d), (f), (g) and (h) of cl 2.2 in Appendix 1 of section 82.0 of the CAO;
· the “low flying” incident of 10 January 2002 in which Mr Repacholi was found by the Tribunal to have contravened regs 157(1)(b) and 166(1)(g) of the CAR;
· the hostile and abusive telephone calls made by Mr Repacholi to certain CASA officers on 5 March 2002 following the suspension of his CPL.
The Tribunal notes, however, that Mr Seager, in his oral evidence, confirmed that, following the October 2000 audit, Mr Repacholi took steps to rectify the various defects and that the results of a subsequent audit of Repacholi Aviation in June 2002 were satisfactory. The Tribunal further notes that the results of an earlier audit of Repacholi Aviation conducted by Mr Seager in December 2001 were also satisfactory (see T29, pp 126-137). Mr Seager acknowledged that Mr Repacholi’s overall performance as the Chief Pilot of Repacholi Aviation in the period 1995-2002 was “adequate” and he confirmed that CASA had never taken any adverse action in relation to Mr Repacholi’s position as the Chief Pilot. Likewise, Mr Farquharson, in his oral evidence, described Mr Repacholi’s previous performance as the Chief Pilot Of Repacholi Aviation as “adequate”.
67. Having regard to the whole of the material before it, the Tribunal is not satisfied that Mr Repacholi’s overall performance as the Chief Pilot of Repacholi Aviation in the period from February 1995 to March 2002 was unsatisfactory or inadequate such that it would indicate that he is presently unsuitable to be approved as the Chief Pilot of Repacholi Aviation.
Should Gerald Repacholi be approved as the Chief Pilot of Repacholi Aviation?
68. Clause 1.3 in Appendix 1 of section 82.0 of the CAO prescribes the conditions which must be satisfied before a person may be approved as the Chief Pilot of an air operator. Paragraph (a) requires that the decision maker be of the opinion that the person has “maintained a satisfactory record in the conduct or management of flying operations”, while paras (b)-(d) require that the person has been assessed by an appointed examiner as “suitable to carry out the responsibilities of a Chief Pilot” and passed specified examinations conducted by an appointed examiner.
69. In the present case, although Mr Repacholi does not have, by any means, an unblemished record in the conduct or management of flying operations, the Tribunal is nevertheless of the opinion, having regard to the whole of the material before it, that Mr Repacholi has “maintained a satisfactory record in the conduct or management of flying operations”, within the meaning, and for the purposes, of para (a) of cl 1.3 in Appendix 1 of section 82.0 of the CAO. The Tribunal accordingly finds that the condition specified in para (a) of cl 1.3 is satisfied in this case.
70. As regards paras (b)-(d) of cl 1.3, however, it was submitted on behalf of Repacholi Aviation that the circumstances of the present case fall squarely within para 7.8.3.2.6.3 of CASA’s policy document (the Air Operator Certification Manual) set out in paragraph 9 above, and that, in accordance with that provision, Mr Repacholi should now be approved as the Chief Pilot of Repacholi Aviation without the requirement to undergo a fresh assessment pursuant to cl 1.3 in Appendix 1 of section 82.0 of the CAO.
71. The Tribunal does not accept that submission for the following reasons. In the first place, the Tribunal notes that, although it will generally apply relevant official policy, it is not bound to do so and may depart from such policy where there are cogent reasons for taking that course. In the present case there are, in the Tribunal’s opinion, cogent reasons why Gerald Repacholi should be assessed, pursuant to cl 1.3 in Appendix 1 of section 82.0 of the CAO. There is, having regard to the material before the Tribunal, some doubt that Mr Repacholi was properly assessed before he was approved as the Chief Pilot of Repacholi Aviation in February 1995 (see T4, p19 and T5 p20), but, in any event, that was over 11 years ago and there have , in the meantime, been (as previously noted) some instances of non-compliance by him with certain provisions of the CAO and CAR, as found by CASA in the October 2000 audit of Repacholi Aviation and by the Tribunal in relation to the “low flying” incident of 10 January 2002. In the Tribunal’s opinion, notwithstanding its finding that Mr Repacholi has maintained a satisfactory record in the conduct or management of flying operations for the purposes of para (a) of cl 1.3, it is appropriate, having regard to his compliance history since February 1995, that he be assessed and examined pursuant to paras (b)-(d) of cl 1.3 (see para 7.8.3.2.6.4 of the Air Operator Certification Manual).
72. The Tribunal, however, is not the appropriate body to conduct the assessment and the examinations specified in paras (b)-(d) of cl 1.3. That being the case, and given the history of animosity between Mr Repacholi and certain officers in the Perth General Aviation Field Office (formerly known as the West Area Office) of CASA, the Tribunal regards it as appropriate that the relevant assessment and examinations be conducted by an examiner appointed by CASA, who is based in a regional office of CASA other than the Perth General Aviation Field Office, and who is acceptable to Mr Repacholi.
73. The Tribunal notes, in conclusion, that, if Mr Repacholi is assessed by the examiner as “suitable to carry out the responsibilities of a Chief Pilot”, for the purposes of para (b) of cl 1.3, and passes the examinations conducted by the examiner for the purposes of paras (c) and (d) of cl 1.3, he should, in the Tribunal’s opinion, forthwith be approved as the Chief Pilot of Repacholi Aviation. In the Tribunal’s opinion, given Mr Repacholi’s very extensive flying experience, it is not necessary that the (optional) condition specified in para (e) of cl 1.3 be satisfied in his case.
Decision
74. For the above reasons the Tribunal sets aside the decision under review and remits the matter to CASA for reconsideration in accordance with the following directions:
· Gerald Repacholi has “maintained a satisfactory record in the conduct or management of flying operations”, within the meaning, and for the purposes, of para (a) of cl 1.3 in Appendix 1 of section 82.0 of the CAO;
· Gerald Repacholi be assessed and examined, in accordance with paras (b)-(d) of cl 1.3 in Appendix 1 of section 82.0 of the CAO, by an examiner appointed by CASA, who is based in a regional office of CASA other than the Perth General Aviation Field Office (formerly known as the West Area Office), and who is acceptable to Mr Repacholi;
· if Gerald Repacholi is assessed by the relevant examiner as “suitable to carry out the responsibilities of a Chief Pilot”, for the purposes of para (b) of cl 1.3, and passes the examinations conducted by the relevant examiner for the purposes of paras (c) and (d) of cl 1.3, he be forthwith approved as the Chief Pilot of Repacholi Aviation without the requirement to undertake the flying activity specified in para (e) of cl 1.3.
I certify that the 74 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President S D Hotop
Signed: .............(Sgd S da Motta).........................
AssociateDates of Hearing 6-9 December 2005
Date of last Submissions 23 February 2006
Date of Decision 30 June 2006
Counsel for the Applicant Mr P Lithgow
Solicitor for the Applicant Grundy, Maitland & Co
Counsel for the Respondent Mr I HarveySolicitor for the Respondent Mr A Anastasi
Office of Legal Counsel
CASA
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