Tomkins and Anor and Civil Aviation Safety Authority
[2007] AATA 1747
•10 September 2007
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2007] AATA 1747
ADMINISTRATIVE APPEALS TRIBUNAL )
)Q 2006/203;
)Q 2006/523;
)Q 2006/872
GENERAL ADMINISTRATIVE DIVISION )
Re Anthony Myles Tomkins First Applicant
AMT Helicopters Pty Ltd Second Applicant
And
Civil Aviation Safety Authority
Respondent
DECISION
Tribunal Senior Member B J McCabe Date10 September 2007
PlaceBrisbane
OrderThe order of the Tribunal dated 6 December 2006 is set aside. The Tribunal orders pursuant s 35 of the Administrative Appeals Tribunal Act 1975 that the publication of the evidence of Mr Robert McKenzie at the hearing of this matter is prohibited to all persons other than the parties, the Tribunal and the staff of the Tribunal, except to the extent that evidence is referred to in the reasons for this decision.
Decision 1. The decision to cancel the chief pilot’s approval of the first applicant is set aside. In substitution it is decided the chief pilot’s approval of the first applicant is suspended for a period of 6 months.
2. The decision not to renew the Air Operator’s Certificate of the second applicant is set aside and remitted to the respondent for reconsideration in accordance with the attached reasons.
3. The decision to cancel the chief flying instructor’s approval of the first applicant pursuant to CAR 5.58 is set aside.
4. The decision to refuse to issue the first applicant a fresh CAR 5.20 approval is set aside and remitted to the respondent for reconsideration in accordance with the attached reasons.
5. The decision to cancel the flight instructor (helicopter) rating grade one of the first applicant is set aside.
6. The date of effect of these decisions is 30 October 2007.
...........[Sgd]...........
SENIOR MEMBER
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2007] AATA 1747
ADMINISTRATIVE APPEALS TRIBUNAL )
)Q 2006/203;
)Q 2006/523;
)Q 2006/872
GENERAL ADMINISTRATIVE DIVISION ) Re Anthony Myles Tomkins First Applicant
AMT Helicopters Pty Ltd Second Applicant
And
Civil Aviation Safety Authority
Respondent
CORRIGENDUM [2007] AATA 1747
Tribunal Senior Member B J McCabe Date1 October 2007
PlaceBrisbane
Decision WHEREAS the decision of the Tribunal in this matter (Tomkins and Anor and Civil Aviation Safety Authority [2007] AATA 1747) dated 10 September 2007 contained an error on its face; and
Upon review of written submissions received from both the parties to the matter,
THE TRIBUNAL AMENDS that Decision pursuant to s 43AA of the Administrative Appeals Tribunal Act 1975 such that it now reads:
1. The decision to cancel the approval of the appointment of the first applicant as chief pilot of the second applicant is set aside. In substitution it is decided that the approval of the appointment of the first applicant as chief pilot of the second applicant is suspended for a period of 6 months commencing on 30 October 2007.
2. The decision not to renew the Air Operator’s Certificate of the second applicant is set aside and remitted to the respondent for reconsideration in accordance with the attached reasons.
3. The decision to cancel the approval of the appointment of the first applicant as chief flying instructor of the second applicant’s flying school is set aside. In substitution it is decided that the approval of the appointment of the first applicant as chief flying instructor of the second applicant’s flying school should not be revoked pursuant to CAR 5.58 or otherwise cancelled.
4. The decision to refuse to issue the first applicant a fresh CAR 5.20 approval is set aside and remitted to the respondent for reconsideration in accordance with the attached reasons.
5. The decision to cancel the flight instructor (helicopter) rating grade one of the first applicant is set aside. In substitution it is decided that the flight instructor (helicopter) rating grade one of the first applicant should not be cancelled.
6. The date of effect of these decisions is 30 October 2007.
.................[Sgd]........................
SENIOR MEMBER
CATCHWORDS
CIVIL AVIATION – Refusal to Grant, and Suspension and Cancellation of Licences – cancellation of chief pilot’s approval, chief flight instructor’s approval, flight instructor’s approval and CAR 5.20 approval – decisions set aside and substituted
CIVIL AVIATION – Review of Decisions and Appeals – refusal to renew Air Operator’s Certificate – decision set aside and remitted
Administrative Appeals Tribunal Act 1975
Civil Aviation Act 1988 s 28
Civil Aviation Regulations 1988 regs 5.58, 5.20, 269
Civil Aviation Orders
Civil Aviation Safety Authority v Hotop [2005] FCA 1023
David Grant & Co Pty Ltd v Westpac Banking Corporation (1995) 184 CLR 265
Shi v Migration Agents’ Registration Authority [2007] FCAFC 59
REASONS FOR DECISION
10 September 2007 Senior Member B J McCabe
1. Myles Tomkins is the chief executive officer and controlling shareholder of AMT Helicopters Pty Ltd. The Civil Aviation Safety Authority (CASA) has a problem with the way in which Mr Tomkins runs AMT’s helicopter business, which includes commercial charter operations, agricultural work (principally spraying) and a flight school. CASA says a culture of failing to comply with record-keeping and other requirements under the civil aviation laws has emerged at AMT. It says that culture will only be fixed if Mr Tomkins is removed from a number of key roles within the organisation. To that end, it cancelled Mr Tomkins’s approval to act as AMT’s chief pilot and chief flying instructor. Several of his other approvals and ratings were also cancelled or revoked. CASA also cancelled AMT’s air operator’s certificate (AOC) which was due to expire in any event. CASA subsequently refused to issue a fresh AOC. AMT and Mr Tomkins say CASA’s allegations are either untrue, a beat up, or – at worst – technical breaches of the rules that did not imperil safety and which do not justify ending Mr Tomkins’s career and the effective closure of his business. The applicants also allege CASA is conducting some sort of vendetta against them.
2. For reasons I will explain, I am satisfied there are compliance issues that require regulatory action against Mr Tomkins. I do not accept it is necessary to close the business or permanently eliminate Mr Tomkins from all roles within AMT. He is an intelligent and capable man who should be able to return to a key position within a helicopter business. I therefore propose to set aside the decisions under review. Some of the decisions must be remitted for reconsideration, while the decision in relation to the chief pilot’s approval must be varied.
the decisions under review
3. CASA made its decisions after issuing show cause notices to Mr Tomkins and to AMT. The notices identified a number of matters that were of concern after CASA completed an investigation that began in 2004. The implementation of most of those decisions was subject to an automatic stay pursuant to s 31A of the Civil Aviation Act1988 (the Act) for 90 days. All of the decisions were subsequently stayed by the Tribunal pursuant to s 41(2) of the Administrative Appeals Tribunal Act 1975. The stay orders remain in place pending the outcome of these proceedings.
4. The proceedings before the Tribunal got off to a bad start. CASA failed to supply the documents required under s 37 of the Administrative Appeals Tribunal Act 1975 within the time contemplated by the legislation. It missed at least one extended deadline for delivering the documents. There was no satisfactory excuse for the delay. The impasse was only resolved after the president of the Tribunal brought the delay to the attention of the chief executive officer of CASA. The delay was regrettable in and of itself, but undoubtedly contributed to the level of acrimony that characterised the proceedings. Mr Tomkins believed he was being persecuted by CASA officers who had a personal grievance arising out the death of a CASA officer in one of AMT’s helicopters. As I will explain in due course, I do not accept the applicants are being persecuted or that CASA officers behaved improperly in bringing these proceedings. But CASA’s failure to comply with its own statutory obligations at the outset did not help.
5. In the meantime, AMT’s AOC was set to expire on 30 November 2006. After considering the decision of Siopis J in Civil Aviation Safety Authority v Hotop [2005] FCA 1023 (the Polar Aviation case), I decided it was appropriate to treat the proceedings in respect of the AOC as an application to review a deemed decision to refuse to issue a long-term replacement AOC to take effect on the expiry of the cancelled AOC. CASA made it clear it would not issue a fresh AOC for the same reasons it gave when deciding to cancel the existing AOC. This fact situation was essentially the same as in Polar Aviation, and I thought it appropriate to make the stay order.
6. The decisions under review are therefore as follows:
(i) The decision made in November 2006 to refuse the renewal of AMT’s AOC. Mr McKeown, for the applicant, argued the Tribunal should focus on the cancellation decision made pursuant to reg 269 of the Civil Aviation Regulations 1988 (CAR). Mr Harvey, for the respondent, pointed out that since the decision in relation to the cancellation of the earlier AOC was moot, the Tribunal should focus instead on the decision not to renew the AOC. That requires the Tribunal to focus on the power to issue AOCs which is contained in s 28 of the Civil Aviation Act1988 (the Act). Given the Tribunal cannot provide effective relief in relation to the cancellation decision, I accept Mr Harvey is right.
(ii) The decision to cancel the approval of Mr Tomkins to act as chief pilot of AMT. The cancellation power is contained in clause 6.1 to appendix 1 of Order 82.0 of the Civil Aviation Orders (CAO). That provision permits CASA to cancel or suspend the chief pilot’s approval if CASA believes the performance of the chief pilot is no longer of an acceptable standard. The provision does not offer any guide to the interpretation of the expression “acceptable standard”, although Mr Harvey said a standard could be divined from the scheme of the Act and by reference to the Guide for Chief Pilots published by CASA.
(iii) The decision to revoke the approval of Mr Tomkins to act as chief flying instructor in AMT’s flying school. Mr Harvey pointed out there was some uncertainty as to the source of the cancellation power. He said it could be pursuant to the general power in CAR 269 to vary, suspend or cancel any licence, approval or authority. He suggested the better view was that CASA exercises a specific power to revoke the chief flying instructor’s approval pursuant to CAR 5.58(5). That power does not include the option of suspension. Mr Harvey is right. The fact the parliament has established two provisions that appear on their face to permit cancellation – a general power and one that expressly relates to a particular kind of approval – does not mean the decision-maker is free to choose between the powers. The existence of the specific power to cancel the chief flying instructor’s approval in CAR 5.58 suggests the parliament intended cancellation decisions made in relation to that sort of approval must be made under the specific provision rather than under CAR 269: David Grant & Co Pty Ltd v Westpac Banking Corporation (1995) 184 CLR 265 at 267 per Gummow J. I am satisfied the decision to cancel was therefore made under CAR 5.58(5), and it should be reviewed on that basis.
(iv) The decision to refuse to issue Mr Tomkins with a fresh CAR 5.20 approval to give flying training for the issue of grade one and two agricultural pilot (helicopter) ratings and the associated conduct of flying training, operational flying training and flight checks. CASA originally cancelled the approval but that approval was due to expire in any event. At the Tribunal’s direction, CASA considered a fresh application for approval. It refused the approval on 30 June 2006.
(v) The decision to cancel Mr Tomkins’s flight instructor (helicopter) rating Grade one. The power to cancel is found in CAR 269. It includes the power to suspend or vary an approval as alternatives.
7. It is necessary for me to arrive at the correct or preferable decision in relation to each of these matters. I do not propose to treat each decision in isolation as what is correct or preferable in each case will depend to some extent on what I propose to do in relation to the other decisions under review. That approach is consistent with the thrust of CASA’s case, which can be summarised as follows: AMT should not be allowed to continue flying while Mr Tomkins is in control. CASA proceeded to make decisions in relation to each of the approvals, licences and authorities to bring about that result. I propose to examine the facts relied upon by CASA when it took its regulatory action in 2006, although I will also refer to some developments that occurred since that time. I will then consider what to do in relation to the decisions.
8. If I accept CASA’s case, my course would be clear: I should simply affirm the decisions. But I have already indicated I am not satisfied the situation is irretrievable, albeit I accept some regulatory action is required. It will therefore be necessary for me to set aside the decisions under review.
the evidence before the tribunal
(a) The investigation begins: CASA investigates complaints against Mr Rowley
9. CASA says it commenced an investigation into AMT after investigating a complaint made by the New South Wales Environmental Protection Agency against Mr Justin Rowley and his company, Rowley Helicopters Pty Ltd. The complaint was contained in a letter to CASA dated 1 June 2004. Mr Rowley’s company was conducting agricultural spraying operations in northern NSW. The company did not hold an AOC. It operated under AMT’s AOC using a helicopter supplied and maintained by AMT. (The original helicopter was jointly owned by Mr Rowley and Mr Tomkins, who were equal shareholders in the company. The acquisition was funded by a bank. The aircraft was subsequently damaged. It was replaced with another aircraft from AMT’s fleet although the financial obligations in respect of the first helicopter continued.) The helicopter was based at Mr Rowley’s property.
10. When CASA investigators began looking into Mr Rowley’s operations, they learned he had been flying on at least 80 days (around 156 hours) between September 2003 and November 2004 without a current medical certificate: T documents at pp 72-74. That is not allowed. The investigators were therefore surprised to learn Mr Rowley had undergone two flight checks conducted by Mr Tomkins in his capacity as chief pilot of AMT during this period. The checks occurred on 10 October 2003 and 1 April 2004. Under AMT’s usual procedures, Mr Tomkins should have inspected the certificate in order to satisfy himself that Mr Rowley was fit to continue flying. Mr Tomkins said he asked to the see the certificate on a number of occasions. The investigators say Mr Tomkins was remiss in allowing Mr Rowley to continue flying if he could not produce a medical certificate.
11. Mr Tomkins says he made numerous attempts to obtain the certificate. He did not anticipate Mr Rowley would actively mislead him. Mr Rowley, for his part, says he had bills to pay and needed to continue working - so he obfuscated. The bailiffs were at his door, he said. He gave evidence about the repayments on the helicopter which were to be met out of the earnings from his spraying activities. Mr Tomkins knew Mr Rowley was in difficulty: he had to meet some of the helicopter loan repayments to the bank and he was in constant contact with Mr Rowley.
12. Mr Harvey, for the respondent, criticised the commercial arrangement between Mr Tomkins and Mr Rowley. The respondent says the arrangement was so unfavourable to Mr Rowley that it ought to be taken into account when considering the fitness of Mr Tomkins. I disagree. Even if the arrangement was disadvantageous to Mr Rowley, the fact Mr Tomkins negotiated the agreement does not suggest anything about Mr Tomkins that is of relevance to these proceedings. The evidence does not suggest Mr Tomkins encouraged Mr Rowley to fly without a current medical certificate; I am not satisfied from the evidence of either man that Mr Tomkins knew Mr Rowley was not complying with his obligations. That decision was made by Mr Rowley alone, whatever the source of his commercial difficulties. Whether Mr Tomkins should have known about Mr Rowley’s non-compliant behaviour is another matter.
13. Mr Tomkins says Mr Rowley finally admitted he did not have a current medical certificate at some point after the April 2004 flight test. He says he immediately directed that Mr Rowley cease flying operations. Mr Tomkins said in his statement that he made many calls to Mr Rowley in the period that followed to see if he had obtained a fresh medical certificate. Mr Tomkins was not aware Mr Rowley was continuing to conduct flying operations. Mr Tomkins says he sent one of his staff to retrieve the helicopter when he became aware of what Mr Rowley had been up to.
14. Mr Harvey said I should not accept Mr Tomkins was ignorant of Mr Rowley’s behaviour while he was supposedly grounded. Mr Harvey says Mr Tomkins must have been aware as a director of Mr Rowley’s company that the loans on the helicopter were still being met – and that he must have been aware the only source of those repayments was Mr Rowley’s flying activities. Mr Harvey also said it was odd that no maintenance documents were produced in relation to the helicopter used by Mr Rowley during this period given it was AMT’s practice to carry out maintenance every 50 hours.
15. I am not persuaded Mr Tomkins was actually aware of Mr Rowley’s behaviour after he was supposedly grounded. The evidence does not suggest Mr Tomkins turned a blind eye to what was going on, or that he connived at the continuing flight operations. But Mr Tomkins should have made more diligent inquiries and demanded to see the medical certificate. He had a system in place that meant he knew when the document was due to expire; he should not have allowed himself to be “fobbed off” by Mr Rowley. It follows Mr Tomkins failed to supervise Mr Rowley’s activities which took place under AMT’s AOC.
(b) The investigation widens to include AMT’s operations – and appears to uncover a smoking gun
16. Armed with the information about shortcomings in Mr Rowley’s operations conducted under the AMT AOC, CASA’s investigators turned their attention to AMT’s operations at Caboolture airport. It appears CASA investigators also suspected AMT pilots may not have been accurately recording information in maintenance releases relating to the company’s helicopters.
17. Mr Tomkins established AMT at Caboolture in 1991. He has extensive experience as a pilot engaged in mustering and other work. AMT’s helicopters engaged in agricultural spraying and other charter work. The company also operated a helicopter flying school. For a time, it operated a fixed wing flying school as well, but that has since been shut down. The company’s engineering operation maintained AMT’s helicopters. I understand the engineering operation also provided services to other companies.
18. AMT had been contracting with local councils near Brisbane to provide mosquito control spraying services. The three councils, Pine Rivers, Caboolture and Redland Shire, were collectively known as the NEMMO councils. Under the contracts, an officer from Pine Rivers Shire would contact AMT and arrange spraying after heavy rain when mosquitoes would breed. Each council supplied its own chemicals and kept its own records of spraying work done its own area.
19. CASA obtained records from each NEMMO council in relation to the spraying work between late 2002 and 2004. The worksheets (known as landing zone records) for each council were in different formats. Two of the councils provided original copies which had been completed by hand. The third council’s records had already been transcribed into a computerised format, and the printouts were provided to CASA. The fact of transcription obviously increases the risk of recording error. The landing zone records included information in each case about the helicopter, the identity of the pilot, the time the helicopter took off on each run and the time it returned, the amount of chemicals used and the area sprayed. The landing zone records were provided to the Tribunal (T documents, pp 170-327). Officers from each NEMMO council were called to give evidence about the way in which work was commissioned, their dealings with AMT and their record-keeping practices. They made it clear the landing zone records were not compiled with a view to recording flight times or time in service. That information was not used, and the various officers recording that portion of the data at the landing zones knew it was unnecessary. In other words, the council officers responsible for recording the information were unable to vouch for its accuracy.
20. CASA thought the council records were important because the data in the records about flight times would provide an independent account of when and how long AMT helicopters were in the air. That data could then be compared with the data in AMT’s own paperwork, most obviously the maintenance releases and the pilot logbooks, to determine if AMT was accurately recording total time in service, or TTIS.
21. The data was analysed by Mr Noel Saffery, a CASA investigator. He prepared a spreadsheet that compared the NEMMO data and the data obtained from AMT’s records. That comparison suggested there were significant discrepancies. On their face, the NEMMO records suggested AMT helicopters had flown on many more days and for much longer hours than shown in AMT’s records. CASA thought it had found a smoking gun.
22. Mr McKeown, for the applicants, went to some lengths at the hearing to demonstrate the landing zone records were unreliable in relation to the question of TTIS. A number of witnesses were taken through records and asked to comment. A number of entries suggested the same helicopter was in two different places at once. Many others recorded what appeared to be impossibly short turn-around times for helicopters as they landed, refuelled, and reloaded with chemicals before taking off again. I do not propose to recount all of the discrepancies here. Suffice to say I am satisfied the records should not be relied upon for the purposes of calculating the TTIS. Mr Harvey, for CASA, accepted there were errors and did not press me to rely on the records for that purpose. Even so, he submitted the records could be relied upon to the extent they showed the helicopters flying on different days to those recorded in AMT’s documents.
23. CASA investigators also sought invoices from AMT. These were not provided until a summons was issued and the Tribunal directed that the applicants produce the documents during the course of the hearing. The invoices show the dates on which spraying occurred and the areas covered. There was no serious challenge to the accuracy of these records, and I accept them. They show that AMT helicopters did in fact undertake NEMMO operations on a number of different days to those recorded in the AMT records.
24. During the course of the investigation, CASA officers interviewed a number of pilots and other persons connected with AMT’s operations. One of them was Mr Adam Udy, one of AMT’s senior pilots. Mr Udy confirmed Mr Tomkins would occasionally tell him not to log flying on some days and add extra hours on other days while undertaking NEMMO operations. He recalled being told to “go easy on the maintenance release”. Mr Udy was given an indemnity against prosecution on the basis that he would give truthful testimony before the Tribunal. He continues to work at AMT.
25. Mr Tomkins acknowledged in his evidence that he might have said “go easy on the maintenance release”, but insisted he would have intended it in jest. He also explained Mr Udy was a haphazard record-keeper in his early days with AMT. When Mr Udy would approach Mr Tomkins for assistance in completing records, Mr Tomkins said he would offer advice, but tended to be conservative and add additional hours rather than risk under-recording.
26. Mr Robert (Bob) McKenzie was also interviewed and gave evidence before the Tribunal. Mr McKenzie previously worked for AMT. Mr McKenzie was asked whether he had ever been told to under-record TTIS on maintenance releases. After initially denying he had been asked to under-record he agreed the suggestion had been made on other occasions apart from NEMMO operations. He said Mr Tomkins had told him to “be gentle on the maintenance release” and “go easy on the maintenance release”. He spoke about an occasion over a decade ago when Mr Tomkins had altered a maintenance release because Mr Tomkins angrily disagreed with how long the job in question had taken to complete. Mr McKenzie suggested Mr Tomkins could be a bully and said there was a disturbing culture at AMT. He also said AMT’s internal operations were disorganised (especially when Mr Tomkins was on leave) and that he had not been carefully supervised or provided with a copy of AMT’s operations manual.
27. It was apparent from some of the matters put to Mr McKenzie during the course of cross-examination that there is intense bad blood between him and Mr Tomkins. There is a history of financial and personal disputation. I think his evidence should be treated with caution. I also directed that the evidence he gave be subject to a confidentiality order under s 35 of the Administrative Appeals Tribunal Act1975.
28. Mr Tomkins was in the witness box over several days. He presented as a confident and intelligent man. He also has a strong sense of grievance. Mr Tomkins made it clear he thinks CASA is persecuting him. He says CASA officers blame him for the death of Mr Peter Hope, a CASA officer. Mr Hope was piloting an AMT helicopter and was killed when the helicopter crashed. The aircraft was not insured under AMT’s insurance on that occasion and AMT sued CASA in respect of the loss. Mr Tomkins pointed to CASA’s tardiness in settling the claim as evidence of CASA’s changed attitude towards him. He enjoyed good relationships with CASA officers before the accident. He says a number of CASA officers were subsequently cold towards him, and few of them acknowledged the impact of the crash on AMT and its personnel. Mr Tomkins pointed out Mr Hope was a friend, and he was traumatised by the accident. Mr Tomkins was obviously hurt by the perception of alienation from CASA officers with whom he had long-standing relationships.
29. Mr Harvey pointed out CASA’s insurers were in charge of the litigation over Mr Hope’s death. CASA was not responsible for the delay in resolving the dispute. He asked Mr Tomkins to identify specific examples of CASA offices demonstrating animus, but Mr Tomkins was unable to refer to any – although Mr Tomkins did point out CASA officers who had previously undertaken their own flight training with AMT appeared to take their business elsewhere after the crash occurred. I was referred to an email exchange between CASA officers suggesting they did not want a connection made between the investigation and the crash (exhibit 41), but I am not persuaded that is evidence of anything other than an awareness on CASA’s part that Mr Tomkins thought it was an issue.
30. Mr Tomkins’s perceptions of a rift with CASA following the death of Peter Hope must be seen in context. The industry is comparatively small, and it appears to be populated by strong characters like Mr Tomkins and Mr McKenzie. These individuals have mixed over a long period with individual CASA officers. Mr Harvey referred to the report of the Seaview Royal Commission which called into question the culture that resulted at least partly from that interaction. He suggested CASA had begun to develop a different culture in recent years. Mr Tomkins might have had difficulty interpreting the signs of that change.
31. In any event, I am not satisfied there is reliable evidence of CASA officers holding a grudge against Mr Tomkins and AMT in relation to the death of Peter Hope. I accept Mr Tomkins genuinely adheres to that view. I also acknowledge that belief might have been encouraged by some aspects of the investigation and these proceedings, including:
· the fact this investigation commenced shortly after a routine audit of AMT’s operations had been completed. The audit report did not recommend any regulatory action against AMT;
· the unhelpfully muscular behaviour of Mr Russell (Reg) Grundy, one of the CASA investigators, whose aggressive attitude was commented on by Mr Tomkins, Mr Guy Henry and Mr Matthew Lawrence, from the Caboolture Shire Council;
· the inexcusable delays on CASA’s part in the preparation of the documents required under s 37 of the Administrative Appeals Tribunal Act1975.
32. Evidence that CASA officers were not well-disposed towards Mr Tomkins and AMT would be irrelevant to these proceedings in any case – except to the extent that evidence called into question the reliability of other evidence offered by CASA officers. I permitted the applicants to call a good deal of evidence and ask a great many questions of various witnesses which were apparently intended to show that CASA’s evidence should not be trusted. I am not persuaded there is any basis to doubt the integrity of the evidence tendered by CASA or its officials.
33. Mr Tomkins admitted he had told his pilots engaged in NEMMO operations to record flight times on days when flights did not occur, or when shorter flights had occurred. He insisted the right amount of hours were recorded, albeit not on the dates that the flights in question took place. He said he did so because of AMT’s practice of buying insurance in blocks. Insurance is obviously a significant expense for a small business like AMT. It is too expensive to arrange for the helicopters to be covered all of the time. Mr Tomkins negotiated an arrangement under which he could purchase a block of days during which the helicopters would be insured. If flights occurred outside those days, they would not be covered. Although he acknowledges he should not have done so, he agrees he instructed his pilots to record time in service on the maintenance releases as if the helicopters had been flown on the days covered by insurance. He says that practice accounts for the discrepancies between the various records – in particular, the discrepancies disclosed between the dates recorded on the invoices and the maintenance releases. He insists the correct number of hours was logged, so safety was not compromised.
34. I accept Mr Tomkins’s explanation for the discrepancies in dates. I accept he was motivated by a desire to reduce the cost of insurance and chose to record flights as if they occurred during days when the aircraft would be covered by insurance. I do not accept he was engaged in a practice of systematically under-reporting TTIS in order to save on maintenance costs or for some other reason. Although Mr Harvey invited me to make such a finding, I am satisfied after hearing Mr Tomkins in the witness box that he appreciated the serious risks that would attach to such a course – risks that he might bear himself when he flew one of AMT’s aircraft.
35. A finding that the applicant has taken liberties with record-keeping is still a very serious matter. The efficacy of the regulatory system created by the Act depends on careful adherence to the rules in relation to record-keeping. If the integrity of an AOC holder’s records is called into question, the regulator cannot be sure the AOC holder is operating safely, and within the law. Mr Tomkins says, in effect, that CASA should accept his word that the correct number of hours has been recorded in the company’s documents. But Mr Tomkins cannot be sure he is right about TTIS in any event. When pilots do not record time in service in the appropriate documents as they go, they must keep their own records. Mr Udy’s conduct illustrates the problems. He agreed he did not always make entries in his logbook as flights were completed. He tended to record the number of hours on a separate piece of paper. He would later make the official entries from his memory and by reconstructing his notes. That process could lead to confusion and guess work, which increases the risk of dangerous errors. The entries into records which ‘bulked up’ the hours flown on days covered by insurance might be made days, or even weeks after the aircraft was flown. Quite apart from the risk of error, the delays meant individual pilots who might have been flying a machine could not be sure of the history of that machine if another pilot had been using it. That is unacceptable.
36. Mr Tomkins also demonstrated a casual approach to record-keeping and official documents in other contexts that underlines the problem. His application for approval to act as chief flying instructor completed on 25 February 2004 includes incorrect information about his qualifications: T documents at pp 343-346. When challenged about this error, the applicant explained the mistake was made by Mr Ian Paul, who had completed the document. The applicant signed the document without reading it: T documents at p 679.
37. That is not the only example of an unconscientious approach to record-keeping and complying with official requirements. In applications for renewal of his flight instructor (helicopter) ratings, Mr Tomkins was asked to provide information about his aeronautical experience. The estimates of the hours he had flown varied widely from year to year, and actually decreased in some years. While the information was probably not crucial in the circumstances, it nonetheless demonstrates a casual attitude towards record-keeping – at least in relation to records that Mr Tomkins does not regard as being of great importance. But that is the point: Mr Tomkins should not be taking it upon himself to make that judgement. Although he might be irritated by the demands of the regulator, the system of record-keeping which forms part of the regulatory system ordained by the Act must not be second-guessed by industry participants. If they are unhappy with the requirements, the proper course is to make representations to CASA, the minister and ultimately to members of parliament to change the system.
38. The applicant acknowledges he has not insisted on strict compliance with the detail of the record-keeping rules. That is consistent with the evidence of Mr Warren Duff, the CASA officer who carried out the audit of AMT’s operations in late 2005. Although AMT was not subjected to regulatory action as a result of that audit, Mr Duff told the Tribunal that he was able to identify a number of instances of sloppy record-keeping and poor supervision. While he accepted he did not find evidence of deliberate under-recording of TTIS during the audit, he was nonetheless of the opinion that the record-keeping was a matter of concern.
39. I heard other evidence calling into question the accuracy of the records that were kept. The evidence of Mr Udy and, to a lesser extent, Mr McKenzie, suggests the culture of compliance at AMT was not as strong as it should be. It follows Mr Tomkins’s behaviour may have compromised the effectiveness of the regulatory system established under the Act. In reaching that conclusion, I acknowledge Mr Tomkins is obviously a competent pilot and he appears to be an effective businessman. He has the force of personality, the intellect and the experience to discharge his various roles competently. His failure to do so during the period in question was the product of a want of respect for the requirements imposed under the legislative scheme. While his judgement remains clouded by the perception he is being persecuted by CASA, I am satisfied Mr Tomkins is capable of continuing to play a senior role in the management of AMT – although as I indicated at the hearing, it seems clear some sort of regulatory action must be taken in light of the findings I have made.
(c) Problems with the flight school come to light – unauthorised flight training
40. The regulatory system requires that pilots obtain approvals or ratings to undertake particular sorts of operations. AMT conducts a flying school that offers specialised training to those pilots who wish to obtain an Agricultural (‘Ag’) rating which will enable them to undertake spraying work. The training does not count towards achieving the qualification unless the person who provides the training has an approval under CAR 5.20. The person who subsequently conducts the flight test must either be approved by CASA under CAO 40.6.10(5) or be a delegate of CASA known as an approved testing officer.
41. Mr Matthew Erceg, a pilot, enrolled at the flight school with a view to obtaining his Ag qualification. After his arrival at AMT’s premises on 23 July 2004, Mr Erceg went for a flight around the airport with Mr Peter Underhill, an experienced pilot working for AMT. Mr Underhill did not have a CAR 5.20 approval and he was not authorised to conduct flight tests. The flight lasted for about 20 minutes. Mr Erceg practised a variety of manoeuvres such as auto-rotations. He then flew with Mr Tomkins who is authorised to provide Ag training and conduct flight tests.
42. Mr Erceg’s logbook suggests he flew for 1.1 hours on that day, with 20 minutes spent flying with Mr Underhill and the balance of the time flying with Mr Tomkins. The logbook records the flight as “Ag 1 Flight test/Emergency procedures”. That entry suggests the circuits with Mr Underhill also formed part of the training and testing process. That is not permissible because Mr Underhill is not authorised to provide flight training or testing of that kind.
43. Mr Tomkins says the flight with Mr Underhill never formed part of Mr Erceg’s training. It was a pre-training familiarisation flight. Mr Tomkins says he conducted the training and test flight. Curiously, the logbooks of Mr Tomkins and Mr Underhill do not record any flights being undertaken on the day in question.
44. Mr Erceg was interviewed by Mr Grundy about what happened. Mr Grundy says Mr Erceg told him that Myles Tomkins had instructed that he should record the whole of the 1.1 hours of flight training and testing as if it had been conducted with Mr Tomkins. Mr Grundy prepared a draft statement to this effect for Mr Erceg’s consideration and signature (at T document pp 915-919), but Mr Erceg never signed the document. He did not repeat the allegation in his oral evidence.
45. The most that can be said about this incident is that it is impossible for me to say for sure what occurred. If the documents required by the law had been meticulously maintained, that should not be an issue. In the circumstances, I think I must accept Mr Tomkins’s assurances that the training and test was conducted according to the rules, but the absence of documentation is still a concern.
46. There were at least two other cases where shortcomings in the records raise doubts about the quality of the training provided to students. The first of these relates to Mr John Wotherspoon, who undertook flight training and a flight test with AMT in order to achieve an Ag 2 rating in May 2004. Mr Grundy says Mr Wotherspoon told him he had undertaken training with Mr Underhill on 25 May 2004. Mr Wotherspoon allegedly said Mr Underhill had instructed him to record Mr Tomkins as the instructor in the flight book. Mr Underhill’s logbook does not mention the flight. Mr Tomkins’s logbook does not record any flight on that day although it did record flights on the following days. The flight school records confirm that flights took place on 25, 26, 27 and 28 May 2004.
47. CASA says I should conclude there have been false entries made in official records. It says I should find Mr Wotherspoon has not been properly trained. I do not think the evidence goes that far. At most, it seems to me the lack of rigour in record-keeping that I have criticised elsewhere has been a feature of this incident.
48. The same point could be made about the training of Mr Andrew Kerr. Mr Kerr, who was undertaking training with a view to obtaining an Ag 2 rating, also flew with Mr Tomkins and Mr Underhill. The circumstances are unclear since he was not available to give evidence. Curiously, the AMT trip sheet records (at T document p 372) have been altered using ‘white out’. The entry for 22 June 2004 (at T document p 372) appears to have been altered to remove Mr Underhill’s name and replaced with Mr Tomkins’s initials, indicating Mr Tomkins was the pilot in command. I cannot be sure what this means, although the amended entry must raise questions about the integrity of the record-keeping. Given the poor quality record-keeping practices I have already noted, I accept the amended entry resulted from confusion rather than a desire to mislead.
(d) Other problems with record-keeping in the flight school
49. The respondent made a variety of other criticisms of the record-keeping in the flight school. One criticism related to the progress records that were generated in relation to a Mr Walker. The syllabus (at T document pp 894ff) requires that the flight school maintain records which note the “student’s progress for each flight”. Mr Walker’s student progress record includes the following undated entry (at T document p 901) following a flight:
Going along Good. MUST STOP JIGGLING THE FUCKING CYCLIC!!!!!!
50. That language is inappropriate – not so much because it is colourful, but because it does not convey a clear idea of the student’s progress. Other surprisingly brief entries on the same document in respect of later flights (eg, “GOOD”) might be criticised on the same basis. There were no entries at all in respect of some flights.
51. There was also some evidence in relation to the training of Mr Jordan Goulter in AMT’s fixed wing flying school. That school is now closed, and Mr Tomkins was not the chief flying instructor in respect of that operation. That role was handled by Mr Leo Dietrich. Mr Grundy analysed the various records and discovered a discrepancy. It appears Mr Goulter may have been sent on his first solo training flight before he had completed the minimum number of hours specified by AMT in its syllabus. Mr Harvey conceded Mr Goulter was only half an hour short of the requirements but suggested the shortfall reflected poor supervision on the part of Mr Tomkins – although he was not the chief flying instructor of that operation, he was ultimately responsible as chief pilot for the systems administered within AMT. That is true, but I am not inclined to attach a great deal of weight to the breach in the circumstances.
(e) Other issues in the flight school – flight testing
52. A good deal of evidence at the hearing was devoted to the question of whether or not flight tests conducted by AMT satisfied the regulatory requirements. Those requirements are set out in CAO 40.6, 10.3. The rules specifically say the helicopter should be equipped
…(c) to simulate spraying operations; …
…(e) to carry and jettison a representative agricultural load
53. CASA says those rules mean the helicopter must be fitted with spraying gear. That view was endorsed by Mr John McDemott, an authorised testing officer. Mr Richard Snell, another CASA officer, suggested it was not necessary to have the spray gear in place in order to conduct the test. He said it was possible to simulate the conditions for the purposes of the test without the spray gear. Mr Snell conducted a test without spray gear when he examined Mr Tomkins. Mr Tomkins, perhaps not unreasonably, has conducted tests - in particular the test of Mr Erceg - on the same basis.
54. I would have thought the words of the relevant CAO’s are clear enough. The rules require that the test should be conducted with the spray equipment attached. I accept there are legitimate differences in view as to whether that is really necessary in order to achieve a proper appreciation of a pilot’s capacity, but the rules appear to require it. It follows I accept AMT has breached the technical requirements in the rules.
(f) The supervision of pilots
55. A question has also been raised over the way in which AMT supervised its own pilots. Mr Harvey referred in particular to Adam Udy’s supervision of Peter Underhill. CAO 40.6, 7.3 says a person who achieves an Ag 2 rating must remain under direct supervision of an approved pilot for 20 hours before he or she was permitted to operate on an unrestricted basis. The logbook of Mr Underhill, an experienced pilot, records about 12 hours of flying time over three days in November 2004 when he was supposedly under the direct supervision of Mr Udy. Mr Udy’s log book suggests he did not fly on one of those days. On the other two days, he was recorded as flying a different aircraft in a different area.
56. CAO 40.6, 1 defines direct supervision to mean:
…that the approved pilot shall be present and available to a pilot engaged in agricultural operations either on the ground or in the aircraft being flown by that pilot.
57. I do not see how an approved pilot can satisfy that requirement if he is flying his own aircraft, especially if he is not within sight of the pilot whom he purports to supervise. While a pilot supervising from the ground might not always have the aircraft in sight, the rules suggest the approved pilot should be available in the sense that he is devoting his attention to the individual in the aircraft. That did not happen here.
58. The respondent says this is another example of a failure of Mr Tomkins as chief pilot. Mr Harvey says Mr Tomkins should not have allowed a situation to arise where a supervising pilot was rostered to work on a different job that would effectively prevent him from discharging his responsibilities as supervisor. It also suggests Mr Tomkins failed to ensure his employees understood their responsibilities. I agree.
(g) Evidence relating to the period following the date of the reviewable decisions
59. Both sides asked that I consider evidence of behaviour or events that occurred after the date of the reviewable decision. The applicants were keen for me to take into account evidence about the installation of DAAMs (Data Acquisition and Alarm Monitors) devices in all of AMT’s helicopters. The devices automatically record time in service. They are effectively tamper proof. The data they generate is available for cross-checking against the AMT’s other records. Mr McKeown submits that the installation of the DAAMs devices will make the mistakes that were made in this case with respect to recording TTIS impossible. The DAAMs devices appear to be a welcome innovation, although Mr Harvey cautioned they were only useful if they were handled appropriately by the people within the organisation. There is also a danger the devices might create a false sense of security about record-keeping which could lead to a less rigorous culture of recording data in accordance with the rules. Even so, I acknowledge these devices might lead to a better-run organisation.
60. The applicants also asked me to consider the favourable report into AMTs operations that had been conducted by Mr Rob Rich. The regulatory compliance audit was conducted in early 2007 after I expressed my concern over the delays in the case which saw AMT continuing to operate on an expired AOC. Mr Harvey criticised the report: he said it was not sufficiently rigorous and pointed out it was superficial. I agree it “did not address the underlying systemic issues that lie at the heart of the reviewable decisions”: CASA submissions at [167]. In those circumstances, I do not think the report assists me in the task I must now perform.
61. The respondent also referred me to an incident involving a helicopter part-owned by Mr Tomkins in 2007. A helicopter involved in charter operations ditched in Moreton Bay. The pilot was the only person aboard the craft at the time and he was rescued from the water. The wrecked helicopter had not been retrieved from the seabed at the time of the hearing and it was unclear what caused the accident. There was no early indication of fault on the part of Mr Tomkins or AMT. It follows I do not regard the evidence as being of any use to me in these proceedings.
62. I acknowledge AMT had begun to install the DAAMs devices in its fleet of helicopters when the reviewable decisions were made. But the fit-out process has only recently been completed, and it has only now become possible to integrate them into AMT’s operations in a systematic way. I therefore think the presence of the devices in some of the machines at the time the reviewable decisions were made is of limited relevance.
63. I am satisfied the other evidence is inadmissible in any event in light of the Full Federal Court’s decision in Shi v Migration Agents’ Registration Authority [2007] FCAFC 59. In Shi, the Full Court was considering the operation of the legislative scheme regulating migration agents. Nicholson J said the Tribunal must look to the relevant legislation to see what evidence might be taken into account. His Honour suggested evidence as to what occurred after the reviewable decision was made is not admissible in the course of a review unless the legislation appeared to contemplate the evidence should be taken into account (although evidence that might shed light on what had already occurred might still be relevant): at [10].
64. The legislation in this case is comparable to the legislation in Shi. There is an elaborate ‘show cause’ procedure that must be followed before a decision can be made. The legislative scheme appears to contemplate regulatory action being taken once facts justifying that action have been established to the decision-maker’s satisfaction. The Act clearly places a premium on public safety, and the complex regulatory system it establishes depends on prompt and uncompromising enforcement. The legislative scheme does not authorise me to look beyond the circumstances at the time the reviewable decision was made.
making the correct or preferable decisions
65. I identified the decision-making powers I was being asked to exercise at the outset of these reasons. I also explained I did not intend to deal with each decision in isolation since the correct or preferable decision in each case depends to some extent on what I decide in each other case.
66. The applicants have acknowledged various shortcomings in AMT’s operations, and in Mr Tomkins’s performance. They say none of those matters justify “rubbing out” Mr Tomkins and his business. Mr Duff, one of CASA’s investigators with extensive experience of AMT, appeared to agree that AMT’s problems could be fixed. He said if that occurred, there was no need for the airline to be grounded. The respondent concedes that no single shortcoming on its own justifies serious regulatory action – but says there is a pattern of behaviour that points to a serious and dangerous culture of non-compliance at AMT. CASA says that cultural problem can be sheeted home to Mr Tomkins’s performance as chief pilot and chief executive of AMT. Mr Dale South, one of CASA’s senior managers who gave evidence during the hearing, agreed CASA thinks Mr Tomkins is the problem. CASA appears to accept AMT could continue to operate successfully if Mr Tomkins were no longer in control.
67. I have already concluded Mr Tomkins is an intelligent man. He is clearly capable of running AMT in accordance with the obligations imposed under the system of regulation ordained by parliament. The evidence suggests he is an experienced and competent pilot. But the evidence also painted a picture of a man who was prepared to take liberties with important record-keeping obligations when it suited him. He felt justified in doing so because he judged there was no threat to safety. He showed a willingness to substitute his own judgement about what was appropriate for the judgement embodied in the regulatory system established under the Act. That should not have occurred, and cannot be tolerated.
68. I am referring in particular to Mr Tomkins’s practice of orchestrating the entry of the wrong dates in official records like maintenance releases. But I have also referred to a number of other shortcomings in record-keeping which suggest there are doubts about the integrity of AMT’s records. It seems to me some form of regulatory action must be taken in order to restore confidence in those records.
69. I am less concerned about the other shortcomings I have identified (eg, failing to see through Mr Rowley’s obfuscation over the medical certificate, conducting flight tests without spraying equipment attached, or failing to remind Adam Udy of his obligations with respect to the supervision of recently-rated pilots). I do not mean to minimise the importance of these matters, but I am satisfied they can be adequately addressed through counselling. I accept they do not appear to suggest systemic problems.
70. Given those findings, it is appropriate to deal squarely with the question of Mr Tomkins’s performance as chief pilot. Clause 6.1 to appendix 1 of CAO 82.0 permits CASA to cancel or suspend the chief pilot’s approval if CASA forms the view the performance of the chief pilot is no longer of an acceptable standard. The provision does not offer any guide to the interpretation of the expression acceptable standard.
71. The responsibilities of the chief pilot are set out in clause 2 of appendix 1 of CAO 82. Clause 2.2 says those responsibilities include:
(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;…
(d) maintaining a system to record flight crew duty and flight times to ensure compliance with duty and flight time limitations…
72. Mr Tomkins instructed his pilots to make false entries in official records. That is a contravention of the law. The record-keeping system he devised and administered did not ensure compliance with duty and flight time limitations. It follows he has not done his job. The extent and gravity of that failure suggests he has not performed at an acceptable standard. It is therefore appropriate to take action under clause 6.1 of appendix 1 to CAO 82.
73. The fact Mr Tomkins’s failure is properly attributable to a poor attitude rather than a want of ability suggests it is more appropriate to suspend his chief pilot’s approval. I have therefore decided to suspend Mr Tomkins’s approval for a period of six months. A suspension period of that duration will provide him with the opportunity to reacquaint himself with his obligations and reflect on his errors – errors that he still seeks to excuse by reference to his perceptions of CASA’s conduct. A six month suspension will not keep him away from AMT’s operations for so long as to make it difficult for him to return and resume a role within the organisation if he wishes to do so in due course.
74. The next matter is the AOC. The Tribunal is placed in a difficult position, given the AOC has already expired. I cannot realistically set aside that decision and substitute a decision that a fresh AOC be issued since the AOC includes a variety of conditions which have not been the subject of evidence before the Tribunal. One of the conditions would presumably relate to the identity of the chief pilot who will substitute for Mr Tomkins during his period of suspension. I am therefore not in a position to exercise the powers of the respondent under s 28 of the Act. I think the best course is for me to set the decision aside but remit the question for reconsideration pursuant to s 43(1)(c)(ii) of the Administrative Appeals Tribunal Act1975 in light of these reasons, which include my findings of fact and observations about Mr Tomkins’s role.
75. The decision to cancel the chief flying instructor’s approval pursuant to CAR 5.58 should be set aside. While Mr Tomkins may not have complied with all of the obligations under the CAO relating to the conduct of training, I have already indicated I think the failures were of a less serious kind. I do not accept it is necessary to cancel the approval in the interests of the air safety. While I accept the discretion to cancel has been enlivened, I do not think it is appropriate to take such a drastic step given the gravity of what occurred. Since CAR 5.58 does not permit any course short of cancellation, I do not think further action is warranted. His approval should remain in force.
76. The decision to refuse to issue Mr Tomkins with a fresh CAR 5.20 approval to provide flying training and flight checks should also be remitted to CASA for reconsideration pursuant to s 43(1)(c)(ii) of the Administrative Appeals Tribunal Act1975. CAR 5.20 permits an approval to be issued subject to conditions. Regrettably, I have not had the benefit of evidence that would enable me to form a view as to what conditions (if any) should be imposed. The reconsideration should take into account my findings as to Mr Tomkins’s performance, and the fact his failures (insofar as they relate to his role in providing flight training and checks is concerned) were of a relatively minor kind.
77. The decision to cancel Mr Tomkins’s flight instructor’s rating should also be set aside. The evidence suggests Mr Tomkins is a good pilot and a competent instructor. His shortcomings as to record-keeping and instruction that I have already described are not so serious that cancellation or suspension is warranted.
conclusion
78. The Tribunal directed that regulatory action against the applicants be stayed pursuant to s 41(2) of the Administrative Appeals Tribunal Act1975 until the matter has been heard and determined. Having made its decision, the Tribunal must decide when the decisions are to take effect. If it does not specify a date, the decision is deemed to take effect on the date the Tribunal’s decision is delivered: s 43(5A). I think it is appropriate to specify a later date pursuant to s 43(5B) in this case given I have directed that two of the decisions be reconsidered. I therefore direct that the decisions not take effect until 30 October 2007. That will provide a suitable period of time for CASA and the applicants to discuss what is to occur in relation to the interim chief pilot of AMT in particular.
I certify that the 78 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member Bernard J McCabe.
Signed: .....................................................................................
Associate: Stephen O’GradyDate of Hearing 20 – 24 November 2006;
4 – 6 & 8 December 2006;
9 – 11; 14 – 15; 17 – 18 May 2007;
14 June 2007
Date of Decision 10 September 2007
For the applicant Mr C McKeown, of counsel
For the respondent Mr I Harvey, of counsel
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