Sullivan and Civil Aviation Safety Authority
[2003] AATA 237
•14 March 2003
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2003] AATA 237
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2002/34
GENERAL ADMINISTRATIVE DIVISION ) Re ROBERT SULLIVAN Applicant
And
CIVIL AVIATION SAFETY AUTHORITY
Respondent
DECISION
Tribunal Senior Member M D Allen Date14 March 2003
PlaceSydney
Decision The decision under review is AFFIRMED.
(Sgd) M D ALLEN
............................................
Senior Member
CATCHWORDS
CIVIL AVIATION - Cancellation of pilot's licence - Whether Applicant a fit and proper person to hold licence - Retraining not an option - All incidents of unsafe flying not withstanding antiquity can be examined by Tribunal.
Civil Aviation Act 1988
Civil Aviation Regulations 1988 - r268 and r269
Hughes and Vale Pty Ltd v New South Wales (No 2) 93 CLR 127
Australian Broadcasting Tribunal v Bond 170 CLR 321
Su v Tax Agents’ Board of South Australia 61 FLR 1
Re: Dawson and Civil Aviation Authority (unreported AAT No. 6401 - 26 October 1990)
Re: Ellery and Civil Aviation Safety Authority [1999] AATA 744
REASONS FOR DECISION
Senior Member M D Allen 1. By application lodged on 11 January 2002 the Applicant sought review of a decision by the Respondent made pursuant to Regulation 269 of the Civil Aviation Regulations 1988 ("the Regulations") and dated 27 December 2001 cancelling his Private Pilot (Helicopter) Licence.
2. This matter came on hearing before me on 24 and 25 February 2003. At that hearing the following documents were taken in as exhibits and marked as follows namely:
T1-T41The documents prepared for the Tribunal pursuant to section 37 of the Administrative Appeals Tribunal Act 1975
A1 Applicant's Statement of Facts and Contentions
A2 Statement by the Applicant dated 19 August 2002
A3 Statement by Chris Townsend dated 10 February 2003
A4 Statement by Ian Paull dated 29 July 2002
A5 Copy letter by Applicant to John Barr dated 31 July 1995
A6Three aerial photos of Bobbin Head area showing particularly Houseboat Bay
R1 Respondent's Statement of Facts and Contentions
R2 Statement by Howard McGillivray dated 9 December 2002
R3 Report by Bureau of Meteorology dated 2 April 2002
R4Bundle of documents being correspondence between Applicant's solicitors & Respondent
R5 Hand written notes by Howard McGillivray re examination of Applicant
R6 Letter Bankstown Helicopters to McGillivray dated 15 June 1995
R7 Chronology
R8 Initial report by DJ Milnes dated 27 October 2001
R9 Copy CASA Publication CAAP .92-2
3. So far as is relevant Regulation 269 reads inter alia:
"(1) Subject to this regulation, CASA may, by notice in writing served on the holder of a licence or certificate or Authority, vary, suspend or cancel the licence, certificate or Authority, where CASA is satisfied that one or more of the following grounds exists, namely:
(a) that the holder of the licence, certificate or authority has contravened, a provision of the Act or these Regulations, including these Regulations as in force by virtue of a law of a State;
...
(d) that the holder of the licence, certificate authority is not a fit and proper person to have the responsibilities and exercise and perform the functions and duties of a holder of such a licence or certificate or an authority."
4. The reasons for decision referred to a breach of Regulation 157(1) of the Civil Aviation Regulations in that the Applicant flew below 500 feet plus a more specific breach of section 20A of the Civil Aviation Act 1988 on 10 October 2001. In addition reliance was placed upon sub-regulation 269(d) alleging that the Applicant was not a fit and proper person to hold a pilot's licence.
5. The term "fit and proper person" was explained by the High Court in Hughes and Vale Pty Ltd v New South Wales (No 2) 93 CLR 127 at 156-7 in following terms:
"But their very purpose is to give the widest scope for judgment and indeed for rejection. "Fit" or ("idoneus") with respect to an office is said to involve three things, honesty, knowledge and ability: "honesty to execute it truly, without malice affection or partiality; knowledge to know what he ought duly to do; and ability as well in estate as in body, that he may intend and execute his office, when need is, diligently, and not for impotency or poverty neglect it." - Coke. When the question was whether a man was a fit and proper person to hold a licence for the sale of liquor it was considered that it ought not to be confined to an inquiry into his character and that it would be unwise to attempt to any definition of the matters which may legitimately be inquired into; each case must depend upon its own circumstances."
See also Australian Broadcasting Tribunal v Bond 170 CLR 321 at 349 and 380. In particular as Mason CJ said at p 349:
"A licensee which is a fit and proper person... must have an appreciation of those responsibilities and must discharge them."
6. In assessing whether the Applicant is a fit and proper person to hold a pilot's licence the Tribunal is not concerned with moral turpitude nor to impose a penalty but regard has to be had to the safety of the public. In Su v Tax Agents Board of South Australia 61 FLR 1 at 4-5 Davies J said that as regards a tax agent:
"A person is a fit and proper person to handle the affairs of a client if he is a person of good reputation, has a proper knowledge of taxation law, is able to prepare income tax returns competently and is able to deal competently with any queries which may be raised by officers of the Taxation Department. He should be a person of such competence and integrity that others may entrust their taxation affairs to his care. He should be a person of such reputation and ability that officers of the Taxation Department may proceed upon the footing that the taxation returns lodged by the agent have been prepared by him honestly and competently."
Translating the above passage into present circumstances it would seem a fit and proper person to hold a pilot's licence is one in whom the respondent has confidence as to his ability and temperament so as to be regarded as a person who can be relied upon to safely operate an aircraft.
7. At the outset of the hearing I requested the solicitor for the Respondent to outline the various incidents upon which the Respondent based its case that the decision to cancel the Applicant's pilots licence should be affirmed. Initially the Respondent relied upon four incidents but in its final submissions relied upon the following, namely:
1. a violation of controlled airspace namely the Williamtown Control Area on 9 February 1995
2. the failure by the Applicant to initially pass retesting theory examinations following the incident referred to in paragraph 1 above
3. a violation of controlled airspace at Cairns on 29 July 1995
4. the refuelling by the Applicant of his helicopter with Mogas (Motor Vehicle Fuel) in 29 July 1995 when that aircraft was not authorised to receive Mogas
5. low and reckless flying at Stanwell Tops on 25 February 1996
6. low flying at Cococabana NSW on 12 May 1996
7. low and reckless flying at Bobbin Head NSW on 10 October 2001
8. For the Applicant it was submitted that little or no weight should be placed on the incidents prior to 10 October 2001, in particular incidents numbered 5 and 6 above as those incidents had never been raised with the Applicant. The Applicant further submitted that the Respondent had in the past been criticised by this Tribunal for seeking to rely on minor peccadillos and historical matters.
9. In Re Dawson and Civil Aviation Authority (unreported AAT No 6401 - 26 October 1990) the Tribunal did say:
"But to seek to prove every peccadillo which is on a pilot's record is quite uncalled for. In the past the Tribunal has criticised the adoption of this practice by the Respondent and its predecessor and the unfairness involved where, as has sometimes been the case, insufficient action has been taken at the time of the alleged past events for the pilot to have cause to have any clear recollection of it some years later."
This passage however must be read with the words immediately preceding it namely:
"Undoubtedly, any serious past contraventions of the Regulations, or of the Air Navigation Regulations which they replaced, are relevant to the question of what is the appropriate way of dealing with the alleged current breach of the Regulations if it is found to have occurred."
10. Deputy President Forgie alluded to similar submissions as the Applicant's current submission in Re Ellery and Civil Aviation Safety Authority [1999] AATA 744 at para 253 where the Deputy President said:
"That is not to say, however, that the fact that evidence of past matters is irrelevant in every case. While it is true to say that “every little peccadillo” is not relevant, prior incidents involving a person may, when taken with more recent incidents, reveal a pattern of action, or inaction, which is relevant in determining whether an AOC should be suspended or cancelled in order to ensure compliance with the provisions of this Act, the Regulations…or whether the performance of the Chief Pilot is no longer of an acceptable standard so that his or her approval should be suspended or cancelled.”
11. My opinion is therefore that all the incidents referred to by the Respondent in its submissions must be addressed, and I now proceed to do so.
VIOLATION OF CONTROLLED AIRSPACE ON 9 FEBRUARY 1995
12. The Applicant conceded that on 9 February 1995 he entered Williamtown controlled area without an air traffic control clearance. I accept that this happened shortly after he had obtained his pilot’s licence and given the evidence of Messrs Townsend and Paull, that this was an inadvertent mistake being of a kind commonly made by inexperienced pilots.
13. This is not to minimise the seriousness of the Applicant’s fault. As appears from document T4 the Applicant flew directly through an air weapons range area whilst live firing was in process.
14. As a result of the above breach the Applicant was required to undertake an examination, being a private pilot (helicopter) flying test. That test was conducted by Mr McGillivray.
15. Mr McGillivray’s evidence to the Tribunal was the Applicant failed the initial theory test he undertook answering 17 questions out of 30 correctly. The Applicant’s licence remained suspended but after undertaking further tuition the Applicant undertook another test and passed.
16. I consider that by itself the Williamtown incident can be put down to error. What is disturbing is that the Applicant’s subsequent examination failure shows that he was either ill trained to begin with or had forgotten a large part of what he had been taught.
VIOLATION OF CONTROLLED AIRSPACE ON 29 JULY 1995
17. On 29 July 1995 the Applicant operated in the Cairns Control Zone without submitting a flight plan and without establishing communications with the Cairns Control Tower and without the required airways clearance.
18. The Applicant did not deny this breach of Regulation 100 of the Regulations, but stated it was due to a misunderstanding with Cairns Air Traffic Control, as to what he was and was not permitted to do.
19. Following this breach of the Regulations the Applicant was issued with a Notice requiring him to show cause why his pilot’s licence should not be cancelled. An arrangement was then entered into between solicitors acting for the Applicant and the Respondent that the Applicant would undertake further training followed by a flight check. (see Exhibit R4 and letter dated 20 November 1995 from the Applicant’s solicitors to the Respondent and the letter dated 10 July 1996 from the Respondent to the Applicant).
20. As a result of the agreement between the Applicant’s solicitors and the Respondent the Applicant duly underwent flight tests on 9 April 1996 and 23 May 1996 conducted by Mr McGillivray which he failed. Apparently after undertaking further tuition the Applicant passed a test conducted on 27 June 1996.
REFUELLING WITH MOGAS ON 29 JULY 1995
21. The Applicant gave evidence that he did refuel his helicopter with Mogas at a service station at Mareeba in far North Queensland on 29 July 1995. He stated that he knew he did not have the necessary certificate to permit the helicopter to be refuelled with Mogas but that he had made inquiries with aviation mechanics and a “Mogas Certificate” was “just a piece of paper”.
22. As I understand the evidence before me no safety issues were compromised by refuelling the helicopter with motor vehicle fuel, it is just that a certificate authorising the use of this fuel has to be issued before Mogas is permitted to be used instead of Avgas (aviation fuel).
23. What I find unacceptable is the Applicant’s attitude which treated the certificate as “just a piece of paper”.. In the theory examination conducted by Mr McGillivray on 10 March 1995 question 4 reads “when may an R22 helicopter be fuelled with Mogas?” and the Applicant is shown to have answered this question correctly. Despite knowing the restrictions the Applicant on 29 July 1995 deliberately decided to ignore them. To me this shows at best a cavalier attitude to rules and regulations.
24. Further disquieting evidence as to the Applicant’s attitude to air safety procedures is contained at document T32. This document is an extract from an aviator’s magazine and deals critically with the way in which the Respondent dealt with the Applicant following the incidents of 29 July 1995. The article bears the heading “I’m from CASA and I’m here to help you” – the article then has the lead in which reads “One of our hapless members made the mistake of wanting to fly a helicopter from Sydney to Cairns. He earnestly strove to avoid upsetting his friends in CASA, as his letter to them illustrates. Look what happened next”.. When questioned the Applicant was unable to explain how the article came to be written and how his letter to the Respondent came to the attention of the author of the article.
25. At document T32 page 66 is a letter to the said publication from the Applicant. The letter concludes:
“if the CAA or CASA (or whoever) have a case against me then it should be tested in court. From my experience CASA do not care about my desire to get flying again as soon as possible or even whether I have learned a lesson from this entire episode.
They just want to GET ME and they will use any technique to succeed”.
26. The Applicant stated that at the time he wrote the letter he was upset as the events had cost him money and caused inconvenience. This may be so but the attitudes exhibited show resentment towards the Respondent enforcing the Civil Aviation Act and Regulations made thereunder.
LOW AND RECKLESS FLYING AT STANWELL TOPS
27. Stanwell Tops south of Sydney is well known as an area where hang gliding and para gliding takes place. It is conceded by the Applicant that on 25 February 1996 he landed his helicopter at the Stanwell Tops cliff site but he stated that he was very aware that there were Hangliders and Paragliders in the area and that he landed a safe distance away from them. He was also aware of horses in the vicinity and landed the required distance (30 metres) from them.
28. When cross examined he stated that at the time he flew his helicopter at Stanwell Tops there were Hangliders in the air and further stated he was not aware of how close the helicopter came to the Hangliders that were in the air. He also stated that the horses came along after he had landed.
29. Mr Moffatt is a helicopter pilot and also a para glider. On 25 February 1996 he was para gliding at Stanwell Tops and saw the helicopter land. He made a complaint to the Respondent (see T19). In evidence to the Tribunal Mr Moffatt stated that prior to landing the helicopter came within one hundred metres of Hangliders in the air. In his letter of complaint he stated:
“there were about twelve Hangliders and Paragliders flying at that time, any of whom may have wanted to use that area as a landing site. Further, the downwash from the helicopter on any of those operating flyers could have disastrous results.”
30. Mr Moffat said that the manner of the helicopters landing namely hovering tail into the wind was not the safest way to approach a landing although in cross-examination he conceded it can be done safely.
31. Two other complaints were received by the Respondent concerning the Applicant landing his helicopter at Stanwell Tops – see documents T18 and T20. Both speak of the Applicant's helicopter landing at a public area close to members of the public and state there were Hangliders in the air at the time, and horses were also present at the time of landing.
32. Neither of the two other complainants were called by the Respondent but I accept the generality of their complaints. It should be apparent to anyone with a modicum of common sense that it would be dangerous to fly a helicopter in close vicinity to Hangliders and Paragliders and that although the landing site chosen by the Applicant was within CASA operating perimeters it was still a potentially dangerous act in a non emergency with unrestrained members of the public in the vicinity in addition to the presence of horses. I am not however satisfied that the Applicant’s tail into the wind manoeuvre could be classified as dangerous.
33. It was suggested in cross-examination of Mr Moffatt that Hangliders and Paragliders coexist with helicopters and fixed wing aircraft in other areas of Australia eg. the Sunshine Coast. The full details of these activities were not before me, in particular, details of any restraints or safety measures adopted.
LOW FLYING AT COCOCABANA NSW ON 12 MAY 1996
34. This incident of low flying was observed by Mr McGillivray the aircraft passing over his neighbour’s house. Unfortunately CASA for some inexplicable reason seems to have omitted taking any action against the Applicant once it was determined that a prosecution for low flying would not be launched. I therefore accept that it is now impossible for the Applicant to make any response to the allegations.
35. That said, I am in no doubt that the Applicant was the pilot of the aircraft. The aircraft was owned by him and the extract from his log book at T24 shows that the Applicant flew in the Cococabana area on the 12th of May 1996.
36. I find that the incident did happen and that whereas it would have been preferable had the Respondent taken some action at that time it is a matter to which I can and should have regard in these proceedings.
37. In passing I must state that I cannot understand the reluctance of the Respondent to initiate a prosecution at that time. Mr McGillivray with his experience as a aviator and position would be a good prosecution witness and for myself, whereas corroboration of his evidence would have been nice from a prosecutor’s point of view, there was sufficient evidence to establish a prima facie case against the Applicant.
LOW AND RECKLESS FLYING AT BOBBIN HEAD NSW ON 10 OCTOBER 2001
38. This matter involves a direct conflict of evidence between the Applicant and the complainant Mr Milnes.
39. Discrepancies in Mr Milnes’ evidence were revealed by cross-examination. In particular he conceded that he had mistaken the bay into which he alleged that the Applicant had flown and that his original statement does not make clear his later evidence to the Tribunal that the Applicant after allegedly hovering his helicopter at the rear of Mr Milnes’ houseboat flew off and returned to hover over the houseboat.
40. In particular I was unimpressed by Mr Milnes as a former naval officer having an apparent inability to correctly read a map, as exposed by his mistake as to which bay into which the Applicant allegedly flew and the line of site from his houseboat. The failure to draw the path of a helicopter to show it passing over the houseboat is also inexplicable.
41. The Applicant for his part whilst admitting he flew his helicopter into houseboat bay denies any unsafe flying and in particular denies hovering at the rear of and then over the houseboat occupied by Mr Milnes and his family.
42. Mr Milnes is a former naval aviator who is licensed to fly both helicopters and fixed wing aircraft. His naval flying involved flying helicopters and at the time of this incident and currently he is employed as a pilot by the New South Wales Police Service.
43. Mr Milnes’ evidence was that immediately after the incidents of which he made a complaint, he made notes. From these notes he compiled the statement which was tendered as Exhibit R8. A later statement T36 was also prepared by him.
44. Having seen and heard both the Applicant and Mr Milnes give evidence and be cross-examined, I was impressed by the way Mr Milnes gave his evidence. There were discrepancies in his evidence as revealed by cross-examination and detailed above, yet I thought he gave his evidence in an open and frank manner. I accept that Mr Milnes was no doubt upset by the Applicant’s low flying near his houseboat but I cannot accept that he set out to deliberately manufacture false allegations against the Applicant.
45. Even without the allegations of hovering around the houseboat it is clear that Mr Milnes as an experienced aviator was concerned with the poor airmanship exhibited by the Applicant. This without more would have been sufficient to ground a complaint to the Respondent. I must also ask myself who has the greatest interest in having their version of events accepted.
46. I find that I am satisfied having regard to the gravity of the allegations made that the Applicant did fly his helicopter in the manner alleged by Mr Milnes and in particular that on one occasion he caused his helicopter to hover some 30 metres behind Mr Milnes houseboat and then to return and hover over the said houseboat.
47. Furthermore I reject the Applicant’s evidence that he descended to below 500 feet over the Hawkesbury River because of turbulence. As stated by Mr McGillivray winds of 20 to 25 knots would require additional control but nothing to cause concern to a pilot of a helicopter such as the aircraft flown by the Applicant on that day. Mr Townsend also stated that at winds of 20 kilometres per hour a pilot should not have to land.
48. What the above incidents make apparent is that the Applicant has in the past exhibited both a poor standard of airmanship and a reckless disregard for air safety.
49. Evidence was lead from Mr Townsend and Mr Paull, both experienced trainers of pilots, as to the Applicant’s ability to be retrained so as to exhibit a proper standard of airmanship and adopt a correct attitude towards air safety. In addition Mr Townsend provided a detailed syllabus of a course of instruction which he felt confident would, if he completed it, render the Applicant a safe and competent pilot. In particular Mr Townsend had structured the course in such a way that if he considered the Applicant failed any part of it or was not adopting a correct attitude, he would fail to achieve regaining of his pilot’s licence.
50. I found both Mr Townsend and Mr Paull to be impressive witnesses and I have no doubt that Mr Townsend would set a very rigorous standard for the Applicant to meet. I am not however as sanguine as Mr Townsend as to the Applicant’s reformation, nor that he would not relapse into his former habits.
51. From the time the Applicant first obtained his pilot’s licence there has been concern regarding his standard of airmanship. Apart from the incidents referred to above and his inability to pass flight tests on 10 March 1995, 9 April 1996 and 23 May 1996, concerns have been expressed by commercial operators who have had business with the Applicant.
52. At document T5 is an allegation of unsafe flying by the Applicant to the Respondent by a Mr Pagett an employee of Heliflite a Commercial Heliport Operator. The same memorandum contains the statement
“... L Edmonds of Heliflite confirmed that owner/pilot of JXU is R Sullivan. JXU hangared at Heliflite. Edmonds expressed concern about Sullivan’s airmanship”
53. The reliance by the Respondent upon the allegations by Mr Pagett regarding the Applicant, which allegations are more particularly detailed in a letter by Mr Pagett to the Respondent, see document T6, was criticised by the Applicant’s Counsel.
54. I agree the allegations are untested as Mr Pagett was not called and are of considerable antiquity. I do not propose to take account of the specific incidents detailed in document T6 but I do take into account that shortly after he first obtained his pilot’s licence the Applicant’s airmanship was such that it caused concerns to two people within the light aviation industry namely Messrs Edmonds and Pagett.
55. Of more concern is the suggestion by the author of document T5 to the Applicant that he should take further training and the rejection of that suggestion by the Applicant.
56. This rejection of advice is consistent with Mr Townsend’s evidence of a rejection by the Applicant of an offer of further training in June 2001. The Applicant had been referred to Mr Townsend by the operator of the helicopter facility where the Applicant kept his helicopter. As Mr Townsend stated in his witness statement (Exhibit A3).
"Prior to these legal proceedings I had the opportunity to fly with Mr Sullivan at the insistence of another industry operator. That operator had observed Mr Sullivan displaying a low level of skill and a poor aptitude towards sound flying practices. At their insistence Mr Sullivan did attend my school on one occasion… “
57. Mr Townsend’s evidence to the Tribunal was that on his observation after a check ride with the Applicant, the Applicant either had a lack of knowledge and skill due to poor training or that he had forgotten the lessons learnt. Mr Townsend stated he had had a discussion with the Applicant and recommended that he come back and use the facilities at his (Townsend’s) Flying School. Townsend told the Applicant he recognised weaknesses in his flying which were reasonably significant and that he needed to return to his flying school to utilise facilities to improve his knowledge before embarking on a flying skill program.
58. Suffice it to say that the Applicant did not return to Mr Townsend’s Flying School although Mr Townsend told him of the deficiency in his flying.
59. I consider it significant that in 2001 a commercial operator should have been so concerned with the Applicant’s airmanship that he had “insisted” that the Applicant attend upon Mr Townsend in order to improve his skills. Then when informed of the deficiencies the Applicant declined further training and stated to Mr Townsend “that he thought he was flying safely”.
60. All of the above events convince me that the Applicant is incapable of learning and of appreciating air safety issues. This is confirmed by his attitude to the violation of controlled air space at Cairns which resulted in the magazine article and letter referred to above, see document T32, which far from being a mea culpa exhibits a resentment at being challenged. To this must be added that shortly after being informed by Mr Townsend as to deficiencies in his competency as a pilot the Applicant engaged in reckless flying at Bobbin Head including, as I have found, hovering directly over an occupied houseboat.
61. To my mind the Applicant has no real appreciation of air safety and even given training by Mr Townsend, I am not convinced he would not relapse into his former disregard of air safety requirements. I have no confidence in his ability to reform and I find that he is not a fit and proper person to hold a pilot’s licence. The decision under review will therefore be AFFIRMED.
I certify that the 61 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member M D Allen.
Signed: .......................................................................................
AssociateDate of Hearing 25 February 2003
Date of Decision 14 March 2003
Counsel for the Applicant Mr T Blackburn
Solicitor for the Applicant Norton White LawyersSolicitor for the Respondent Mr A Anastasi, Office of Legal Counsel – Civil Aviation Safety Authority
0
0
0