Wunsch and Airservices Australia
[2002] AATA 1305
•17 December 2002
DECISION AND REASONS FOR DECISION [2002] AATA 1305
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2000/1124
GENERAL ADMINISTRATIVE DIVISION )
Re SIMON WUNSCH
Applicant
And AIRSERVICES AUSTRALIA
Respondent
DECISION
Tribunal Senior Member K L Beddoe Brigadier I R W Brumfield, Member Mr I R Way, Member
Date17 December 2002
PlaceBrisbane
Decision The Tribunal affirms the decision under review.
……(Sgd) K L Beddoe…..
Senior Member
CATCHWORDS
AVIATION – licence – air traffic controller – suspension and then cancellation of licence - whether there are grounds justifying the cancellation of the licence – whether there has been a failure affecting the safe navigation or operation of aircraft – whether applicant is a fit and proper person to hold an air traffic controller's licence
Civil Aviation Act 1988
Civil Aviation Regulations
Australian Broadcasting Tribunal v Bond (1990) 94 ALR 11
REASONS FOR DECISION
17 December 2002 Senior Member K L Beddoe, Brigadier I R W Brumfield, Member Mr I R Way, Member
In application Q1999/415 the applicant applied for review of a decision by a delegate of the Civil Aviation Safety Authority (CASA) to suspend his licence (number 20430) as an Air Traffic Controller effective 18 March 1999. That application is in abeyance.
In application Q2000/1124 before this Tribunal, the applicant applied for review of a decision by the respondent to cancel the said licence. Notice of the cancellation was dated 2 November 2000.
The Civil Aviation Regulations ("the regulations") provide for suspension of a licence issued under the regulations where CASA has reason to believe:
(a)there may be circumstances justifying suspension on a ground specified in regulation 269; and
(b)there may be a serious risk of air safety if the licence were not suspended (reg 268).
Regulation 269 relevantly provides for cancellation of a licence 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 of these regulations, including these regulations as in force by virtue of a law of a State;
(b)that the holder of the licence, certificate or authority fails to satisfy, or to continue to satisfy, any requirement prescribed by, or specified under, these regulations in relation to the obtaining or holding of such a licence or certificate or an authority;
(c)that the holder of the licence, certificate or authority has failed in his or her duty with respect to any matter affecting the safe or efficient navigation or operation of an aircraft;
(d)that the holder of the licence, certificate or authority is not a fit and proper person to have the responsibilities and exercise and perform the functions and duties of a holder of such a licence or certificate or an authority; or
(e)that the holder of the licence, certificate or authority has contravened, a direction or instruction with respect to a matter affecting the safe navigation and operation of an aircraft, being a direction or instruction that is contained in Civil Aviation Orders.
Section 31(2) of the Civil Aviation Act 1988 provides that application may be made to the Tribunal for review of a reviewable decision.
Section 31(1) relevantly defines reviewable decision to mean:
"a cancellation, suspension or variation of a licence granted or issued under the Act and the regulations."
Decision is defined to have the same inclusive meaning defined in section 3(3) of the Administrative Appeals Tribunal Act 1975 ("the AAT Act").
At the hearing Mr Rose appeared for the applicant and Mr Horneman-Wren appeared for the respondent. The documents lodged in the Tribunal pursuant to section 37 of the AAT Act, in a consolidated set, were before the Tribunal as the T documents. Further documents were tendered and marked as exhibits as follows:
Exhibit Description
A Copy of Affidavit of applicant – 27 April 2001
B Affidavit of applicant – 27 September 2001
C Affidavit of Russell Krautz
D No 5 Field Course
E Performance and Check Reports
F Health Assessment Report
G Daniels, Clinical Psychologist Report
H Designated Aviation Examiners Report
J Airservices Australia minute
K Cairns Missed Approaches Instruction – 3 December 1988
L Cairns Missed Approaches Instruction – 2 March 20011 Photograph inside Cairns Tower
2 ATSB report – 30 September 2001
3 Extract from MATS 6-4-3
4 Extract from MATS 4-1-1
5 Copy Air Services letter – 19 March 1999
6 Copy file note – 30 March 1999
7 Suspension Notice – 1 April 1999
8 Copy Affidavit of Ross Gillies (undated)
9 Copy Affidavit of Anthony Sanders – 17 August 2001
10 Copy Affidavit of Alun Wall – 17 August 2001
11 Affidavit of Anthony Crabb – 17 August 2001
12 Affidavit of Anthony Read – 17 August 2001
13 Transcript Cairns Tower Voice tapes
14 Copy Affidavit of Gregory Hood – 17 August 2001
15 Copy Affidavit of Mervyn Fowler – 17 August 2001
Oral evidence was given by the following witnesses:
(a)The applicant
(b)Russell Krautz – Air Traffic Controller
(c)Ross Gillies – Air Traffic Controller
(d)Anthony Sanders – Air Traffic Controller
(e)Alun Wall – Air Traffic Controller
(f)Anthony Crabb – Air Traffic Controller
(g)Anthony Read – Air Traffic Controller
(h)Gregory Hood – Air Traffic Controller
(i)Mervyn Fowler – Air Traffic Control Manager
The Tribunal has heard evidence about a history of air traffic control incidents dating back to 1991. It is fair to say that some of those incidents were serious and some less serious. Most were the subject of further training and counselling until the suspension in 1999 and cancellation of the licence in 2000.
Having considered all of the incidents we have come to the view that we only need to give detailed consideration to some of those incidents. There is no doubt that the history reflects on the later incidents but in the result the history has no real effect on our reasons for decision.
Each of the incidents occurred at Cairns Airport while the applicant was on duty in the Control Tower at the Airport. Cairns Airport has a major runway (Runways 15 & 33) and a short runway (Runways 12 & 30).
The applicant was a full performance controller although relatively inexperienced as such having taken time to reach that status.
The Incident on 12 March 1999The essence of this incident is that a scheduled Sunstate Airlines flight was on final approach to runway 15 approximately seven to eight miles from touchdown when a Cessna aircraft was cleared to take off.
At the time the applicant was the Aerodrome Controller and had responsibility for maintaining separation. After being cleared to land by the Approach Controller the Sunstate 'plane was given a weather report by the applicant to the effect of rain and low cloud. In the light of the weather report there was a real possibility that the Sunstate 'plane would not be able to land on first approach and would thereby abort the landing. Mr Krautz said that missed approaches were relatively rare so that an individual controller may only experience one or two during a wet season.
Mr Krautz also said that the weather conditions were rapidly changing on the day. It seems that a fatal helicopter crash on the day was attributed to adverse weather conditions.
Mr Crabb, Mr Moore and Mr Krautz were on duty in the tower at the relevant time with the applicant. Mr Krautz, an Air Traffic Controller of over 20 years experience, said that he saw nothing untoward in the applicant's clearance of the Cessna for take off.
The procedure for take off of the Cessna required it to take off to the north and turn left on altitude 400 feet but to turn no later than at the end of the runway. The Cessna was on runway 15 and was therefore required to climb to clear terrain on the south eastern side of the airport.
The Sunstate 'plane was to land on the instrument landing system for final approach by following the beam to runway 15 and to land if the runway was visual at 320 feet with 1.2 km of visibility. If not visual at that point the local instructions required the Sunstate 'plane to turn left on a bearing 030 to intercept a navigation aid.
The applicant had obtained a departure instruction from the Approach Controller in relation to the Cessna and cleared the Cessna for take off about the time that the Sunstate 'plane was eight kilometres from landing.
The Cessna failed to follow correct procedure because it climbed slower than would be expected and more importantly did not turn left by the time it reached the end of the runway. It proceeded on a straight course for an estimated one mile before making the left turn.
Meanwhile the Sunstate aircraft was correctly following missed approach procedures. By following those procedures the Sunstate 'plane came into conflict with the Cessna. Fortunately the pilot of the Sunstate 'plane saw the Cessna, took evasive action so that a collision was avoided. There was however a complete breakdown of separation so that even emergency separation was not maintained.
The response of the tower to this situation appears to have been a stunned silence until the Air Traffic Controllers realised that separation had not been maintained. The applicant then reacted by requiring the Cessna to make its best climb speed so as to attempt to maintain vertical separation. After that he warned both aircraft by advising "traffic". That warning, we understand, is in reality an advice to aircraft to be on the lookout for aircraft in their immediate vicinity and to take evasive action. That is, the maintenance of separation has failed and the aircraft need to take action to avoid collision.
All four Air Traffic Controllers in the tower at the time followed the unfolding drama. The only assistance to the applicant was Mr Krautz' advice to "give traffic". It seems that none of the Controllers offered any advice to the applicant about maintaining separation and the applicant recognised that the Cessna's slow climb contrary to procedure would create a conflict if the Sunstate aircraft decided to go around because of the adverse weather at the airport. Mr Krautz said, in oral evidence that the controller expects that aircraft will operate in compliance with their clearances and must do their work on the basis that is what occurs. The applicant was entitled to expect that the Cessna would make a standard instrument departure.
Document T15 includes copies of a series of training feedback and log reports by Mr Krautz which satisfy us that there was some concern that the applicant was not maintaining separation advices to aircraft as diligently as Mr Krautz thought necessary. These reports are relevant to establish the point that there had been on the job training for the applicant in relation to techniques to assist aircraft to maintain separation.
The Aerodrome Controller at Cairns Airport is responsible for maintaining aircraft separation on the runways, for maintenance activities etc on the runways, the scheduling of arriving and departing aircraft in the vicinity of the airport including the separation of those aircraft together with "ownership" of the same airspace in the vicinity of the airport used in connection with helicopter and float plane operations.
In particular if the Sunstate 'plane had been on the Cairns side of the then Buchan locater when the Cessna was cleared for take off then, says Mr Krautz, there was an issue as to maintenance of separation. We are satisfied that the obligation to maintain separation was that of the Aerodrome Controller. So that an aircraft on instrument landing was deemed to be on final approach when it passed the Buchan locater.
One of the consequences of the incident was an investigation by the Bureau of Air Safety Investigation. In a preliminary report the Bureau summarised the incident as follows:
"The Shorts 360 had been cleared for an Instrument Landing System approach to runway 15 in weather conditions that were fluctuating about the landing minima. The crew was transferred to the aerodrome controller at 12 NM so that weather updates could be passed in a timely manner.
The Cessna 208 pilot had reported ready for take off from runway 15 to the aerodrome controller. The aerodrome controller coordinated with approach control for a departure clearance. A radar departure instruction to turn left onto a heading of 360 degrees was issued to the aerodrome. At that time the Shorts was approximately 8 NM from the threshold. The aerodrome controller reported that he expected the Cessna to climb at a better rate than the Shorts, thereby providing for a vertical separation standard in the event of a missed approach by the Shorts.
As the Shorts approached decision height, the crew was informed of deteriorating visibility and lowering cloud base due to a passing heavy shower. Because the crew was not visual at the minima, they elected to carry out a missed approach. The published missed approach procedure necessitated a left turn onto a heading of 030 degrees in conjunction with a climb to 4,000 ft. The Shorts crew complied with the aerodrome controller's instruction to maintain 1500ft.
The relative tracks of the aircraft were converging and radar data indicated that their respective altitudes were almost the same. Realising that a separation standard would not be achieved, the aerodrome controller passed traffic information to both crews.
As they passed 1,200ft, the crew of the Shorts entered a gap in the cloud layers and saw the Cessna ahead and slightly above. The Shorts crew initiated a descent and passed about 300ft below the Cessna. The pilot of the Cessna saw the Shorts and monitored the passage of the Shorts beneath his aircraft. Crew reports indicated that the aircraft passed each other with approximately 300ft vertical separation and no discernible horizontal difference." (T16(c) – the Shorts 360 is the Sunstate aircraft)
On the basis of the material before us that is a fair summary of the incident.
A more detailed summary is in the final report by the Australian Transport Safety Bureau released 10 March 2000.
That reports makes it clear that although the normal rule was that the Approach Controller had responsibility for separation in airspace the applicant had assumed that responsibility in the instant case. That is because the applicant had required the Cessna to maintain radio contact on the Aerodrome Controller's frequency and not switch to the Approach Controller's frequency, as was the norm.
Contrary to the final report Mr Krautz told us that the four controllers in the tower at the time were not "occupied with their own tasks" were watching the developing incident, and were unable or did not offer any constructive advice as to maintenance of separation except for Mr Krautz suggesting "give traffic".
The report of the Air Transport Safety Bureau listed the following significant factors in the incident:
"1. The geographical restraints of high terrain surrounding the Cairns aerodrome required all aircraft movements in instrument meteorological conditions to proceed into a 40 degree sector of airspace.
2. The Cairns runway 15 missed approach and departure procedures required all aircraft to turn into the same narrow sector of airspace.
3. The weather conditions were such that missed approaches were likely and that the aerodrome controller would not be able to provide visual separation.
4. The departure instructions for the Cessna placed that aircraft into a direct track conflict with the runway 15 missed approach path.
5. The aerodrome controller's decision not to increase the cut-off distance beyond 8NM resulted in a reduction of the safety buffers in the separation plan.
6. The aerodrome controller's plan relied on the performance of the Cessna being sufficient to climb above the Shorts.
7. The performance of the Cessna was not as good as that expected by the aerodrome controller.
8. The weather conditions encountered by the Cessna were such that the pilot needed to reduce the fair weather climb performance for operational safety reasons.
9. The coordination between the aerodrome controller and the approach controller was inadequate.
10. The Cairns Local Instructions did not authorise the use of radar by the aerodrome controller for separation purposes.
11. Neither the aerodrome controller no the approach controller applied positive separation assurance techniques.
12. Cairns tower controllers had not received adequate ongoing refresher training in emergency and/or unusual situations."
The Bureau noted that local instructions at Cairns had been amended after the incident with the object of providing a buffer between departures and missed approach paths. It recommended refresher training with reference to unusual situations. That recommendation was accepted by the respondent.
While we accept that such an incident is less likely to re-occur because of the revised local instructions we do not accept that the incident was caused by the then existing local instructions as the applicant asserts.
The applicant said in evidence that his supervisor, Mr Crabb told him he had done well in relation to the incident, his only mistake being that he had kept the Cessna on the Airport Controller's frequency when, as we understand it, the Cessna should have transferred to the Approach Controller's frequency.
Mr Krautz acknowledged that changes had occurred so as to ensure greater separation when missed approaches are likely or for that matter are not likely but the Airport Controller is not able to separate visually due to cloud cover. We are satisfied that the respondent made significant changes to procedure after the 12 March 1999 incident so as to avoid a repetition of the confusion in the Cairns tower.
The applicant acknowledged in his evidence that he was aware that because of the adverse weather there was a possibility that the Sunstate aircraft would have to "go around". He told the Sunstate aircraft there was heavy rain at the airport and that the high intensity approach lights were on stage 4/6. That occurred prior to the Cessna being cleared for take off. As the rain increased the lights were then turned up to 6/6. Given that the local time was approximately 7.45am and the date was 12 March, it is apparent that the weather was acknowledged to be bad.
The applicant also acknowledged that because he had kept both aircraft on his frequency it was not open to the Approach Controller to provide separation instructions to the aircraft.
Perhaps the explanation of the incident and in particular the tower's failure to react in time and positively to the looming incident is in the following exchange in examination-in-chief of the applicant (transcript 154):
"QMr Krautz has told us that they were aware of it unfolding. He saw it from start to finish, he's said?
AYes.
QWould that be the position with Mr Crabb as well as ---?
AI believe so. All three of us were standing at the console talking about the topic of discussion for the day. There was nothing else happening. We were waiting for traffic to pick up so Steve Moore could do his check rating on the co-ord position."
Following the incident the applicant submitted a request for change of Local Instructions so as to more clearly define responsibility for separation in missed approaches. In the context of this case we do not attach any weight to the suggestion that there was a lack of clarity as to the respective responsibilities. As already noted, the applicant had assumed responsibility by keeping the aircraft on his frequency.
In his affidavit (Exhibit 11) Mr Crabb says that he was in the tower on 12 March 1999, when the incident involving the Sunstate aircraft and the Cessna occurred. He said he was surprised that the applicant did nothing to achieve emergency separation in the incident. He thought that the applicant could have requested the Cessna to increase its rate of climb, direct the Sunstate 'plane to maintain an emergency lower level and pass traffic, or instructed the Cessna to remain low, directing the Sunstate 'plane to commence the missed approach earlier so as to achieve separation between the aircraft. He did not accept the applicant's explanation that he was following local procedures. Mr Crabb said he did not consider local procedure to be an excuse for not providing separation on an emergency basis – it must be provided if a collision is imminent.
In his oral evidence Mr Crabb confirmed the surrounding circumstances of the incident. He described the weather as bad and that the Cessna had not performed as might be expected. He thought the incident was caused by the Cessna not complying with the procedures for take off. If it had climbed correctly it would have been well away from the Sunstate aircraft.
Mr Wall investigated the incident with Mr Sanders. In Exhibit 10, Mr Wall sets out four factors which he describes as the applicant's principal problems:
(a)failing to communicate properly with the Approach Controller;
(b)should have questioned the heading given by the Approach Controller;
(c)approval for take off of the Cessna when missed approaches likely with no plan for separation at that time; and
(d)not taking emergency action to separate the aircraft when it was clear an emergency separation was required.
Mr Wall agreed that the local instruction dated 2 March 2001 (Exhibit M) was much clearer than the previous instruction (Exhibit K) in relation to missed approaches in instrument landing conditions. However he was still unsure as to the assignment of altitudes below 1500 feet on an emergency basis.
Mr Sanders said in his affidavit (Exhibit 9) that the tapes and interview of the applicant indicate that the applicant realised that a serious situation was emerging so he kept both aircraft on the same frequency. (It is our understanding this was the frequency used by the applicant as Aerodrome Controller). Mr Sanders said this strategy is adopted in difficult conditions in order to separate aircraft more effectively. He went on to say that it seemed this was the full extent of the applicant's attempt to separate the aircraft and he did nothing further to achieve separation between the aircraft. He also said that it was the controller's responsibility to ensure that an accident did not occur by keeping aircraft apart notwithstanding a break down in separation.
Mr Sanders sets out in his affidavit his reasons as to why he was not satisfied the applicant understood the responsibilities of Air Traffic Controllers in maintenance of separation of aircraft – something eventually admitted by the applicant. Mr Sanders is critical of the applicant because he did not have any thought out plan for keeping the aircraft apart where there was a missed approach. He was also critical of the applicant because he took on more work than he could reasonably handle, not being able to refuse work. He also said that the applicant overstates his ability and is unable to admit when he has made a mistake. In his oral evidence Mr Sanders went beyond this and said that he was concerned the applicant was non-accepting of the rules for separation of aircraft in relation to missed approaches.
Mr Sanders said that the Approach Controller also has responsibility for separation and should assist the Aerodrome Controller with separation issues.
The Incident on 5 January 2000As already noted there are two runways at Cairns Airport. The main runway is approximately North/South (150°/330°) bearing the runway identification numbers 15 and 33. The short runway is approximately North West/South East (120°/300°) bearing the runway identification number 12 and 30.
Most landings and departures at Cairns Airport use runway 15 but runway 12 is used as necessary. Local procedures in effect delegate responsibility for movements on and across runway 12 to the Surface Movement Controller by means of a blanket clearance from the Aerodrome Controller. That means that the Surface Movements Controller need not refer to the Aerodrome Controller in relation to movements on runway 12.
If the Aerodrome Controller requests runway 12 for a landing or departure then the procedure requires him to cancel the blanket clearance thereby taking back control of runway 12 and denying the Surface Movement Controller Authority to clear movements on the runway without first getting clearance from the Aerodrome Controller.
Immediately before the subject incident the applicant, as Aerodrome Controller, had cancelled the blanket clearance to the Surface Movement Controller so that a Reefwatch aircraft could land on runway 12. Having landed, the aircraft taxied back along runway 12 stopping short of runway 15 on a taxiway at the end of runway 12 thereby obstructing the runway.
At that point, the applicant, as Aerodrome Controller returned the blanket clearance to the Surface Movement Controller. He also gave the Surface Movement Controller approval for the Reefwatch aircraft to cross runway 15 following a Tiger Moth aircraft about to land on runway 15.
A third aircraft which had been engaged in parachute operations south of Cairns was processed by the Approach Controller for landing on runway 12. The Approach Controller advised the applicant twice that the parachute aircraft was to land on runway 12 and, those advices were acknowledged by the applicant as Aerodrome Controller. He instructed the aircraft to make close approach, did not advise it to land on runway 15 as he had expected it to do and cleared it to land. The aircraft landed on runway 12. Before this time the Reefwatch aircraft had crossed runway 15 so that it was clear of the approach to runway 12.
The result was that the parachute aircraft had been cleared to land by the applicant, as Aerodrome Controller, and had landed on runway 12 while the Surface Movement Controller was, in effect, holding the blanket clearance.
As it transpired there was no breakdown in separation rules. The error by the applicant as Aerodrome Controller was two fold. Following two advices from the Approach Controller he had expected that the parachute aircraft was making a close approach to runway 12 and, he says, he inspected that runway and also that he advised the Surface Movement Controller that the parachute aircraft was cleared to land on runway 12. He agrees that he did not cancel the blanket clearance.
The applicant says that at around the time of this incident there had been a number of aircraft movements and, as a consequence, he was under some pressure. That is confirmed by the record of the Approach Controller offering to take over responsibility for separation of some aircraft. The offer was refused by the applicant.
The parachute aircraft was not visual on approach until relatively late because it had approached from behind a hill west of the airport. It was only when the aircraft was on close approach that the applicant realised that it was intending to land on runway 12 and then the he inspected that runway, saw it was clear and cleared the aircraft to land.
In the result and the applicant agrees, he failed to tell the parachute aircraft to land on runway 15, notwithstanding two advices from the Approach Controller that it was heading for runway 12, and he failed to withdraw the blanket clearance before clearing the aircraft to land on runway 12.
Mr Crabb was the Surface Movement Controller at the time of the incident. His version of what occurred is set out in his affidavit. He says that the applicant cleared the parachute 'plane to land on runway 12 without taking back the blanket clearance from the Surface Movement Controller. Meanwhile the Tiger Moth landed on runway 15, and a Reefwatch 'plane which previously landed on runway 12 was backtracking runway 12. Because the applicant did not remove the blanket clearance movements of the aircraft was handled in an uncontrolled way.
Mr Crabb read the report into the incident and listened to the audio tapes made at the time of the incident. He expressed the opinion that there was no breakdown of separation of aircraft, but there were three basic errors:
(a)the applicant not maintaining accurate slips resulted in the applicant not being able to track the parachute 'plane landing;
(b)in particular, he did not realise the 'plane was landing on runway 12 and did not have the opportunity to cancel the blanket clearance; and
(c)tower communications by the applicant were hurried and unclear, speaking over the pilot and the Approach Controller.
While there was no breakdown of separation in fact, Mr Crabb expressed the view that the situation was uncontrolled with potential for a conflict of aircraft.
Mr Gillies investigated the incident with a Mr Healy. In his affidavit (Exhibit 8) he points out the potential for conflict on runway 12 because the blanket clearance had not been withdrawn and the potential for an aircraft or motor vehicle to be on the runway but not observed from the tower because of visual obstruction. He also noted that the applicant's flight strip for the landing aircraft showed runway 15 notwithstanding that the advice on three occasions that the aircraft was lining up on runway 12 (RG4).
In his oral evidence Mr Gillies said the applicant was "journalising" when talking over the Approach Controller so that the applicant substituted his expectation that the aircraft was to land on runway 15 instead of noting the Approach Controller's advice it was to be runway 12.
Mr Gillies regarded the applicant as a competent controller who took on too much work. Also he thought the applicant needed to stop having incidents.
Mr Hood gave evidence of an incident in 1995 when the applicant was an En-Route Controller and there was a breakdown in co-ordination of a flight from Cairns to Sydney via Emerald. The applicant was counselled as to the use of flight progress strips after this incident (Exhibit 14).
The Incident on 30 August 2000Exhibit 2 is a copy of a report by the Air Transport Safety Bureau dated 30 September 2001. The report effectively describes the incident as follows:
"The pilot of a Cessna 150 (C150) was taxiing for departure from runway 33 at Cairns for a private local area flight. At 1610:15 Eastern Standard Time, he reported to air traffic control that he was ready to depart and was at the 'Yankee' taxiway holding point. The 'Yankee' holding point was located 837m north of the runway 33 threshold. The controller responded by authorising the pilot to 'line-up" behind a landing Twin Otter aircraft. The pilot acknowledged and complied with that instruction.
The crew (a student and instructor) of a Beech Super King Air (B200), had been operating in the local area on a training flight. They had flight planned for a 'touch and go' landing on their return to Cairns, with circuit work to follow. The student was the handling pilot and, at 1614:00, was cleared for a 'touch and go' landing. The touch down point was expected to be at, or near, the instrument touch down markers; approximately 450m from the runway 33 threshold.
On hearing the crew acknowledge the landing instruction, the pilot of the C150 broadcast to the controller that he was still on the runway. At 1614:13, the controller instructed the crew of the B200 to 'go round'. The crew commenced the go-around from a position approximately 100ft above the runway and 200m past the runway threshold.
The flight progress strips for both aircraft were in the 'active' bay of the aerodrome controller's console but the exact location within that bay could not be established. The controller remembered that he placed the landing strip for the B200 in the 'runway occupied' position within the active bay when he issued the landing clearance.
The controller had forgotten that the C150 was lined-up and, although completing a visual scan of the runway before issuing the crew of the B200 with a landing clearance, did not see the aircraft at the 'Yankee' intersection.
Other controllers in the tower were attending to their own duties at the time and were not aware of the impending incident.
The instructor in the B200 had seen the C150 on the runway and was expecting air traffic control to issue either a take-off clearance for that aircraft or a go-around instruction for his aircraft. As they approached the runway threshold, he briefed the student to expect a go-around and that if the controller did not issue an instruction, they would initiate a turn over the water clear of the departure path. However, the intended action was not initiated and the go-around was delayed until after the controller had issued his instruction.
The controller normally used the 'runway occupied' position at the console. That position was used as a memory jogger to ensure that if the runway was occupied, a second user could not be cleared to use that runway. In this occurrence, had the flight strip for the C150 been placed in the 'runway occupied' position, the controller should not have authorised the B200 to use the runway without first placing the flight strip for that aircraft into that same position; thus a memory job would have occurred, prompting the controller that the runway was occupied."
In his oral evidence the applicant said that he told the Cessna to line up on the runway for take off after an Army Twin Otter aircraft landed. After the Twin Otter landed, the applicant said, he was distracted by a visual search for the Beech Super King Air. While he would have expected to sight the aircraft up to seven to eight miles from the airport, it was only sighted by tower staff at one mile from the airport apparently because of smoke from bushfires.
By the time visual sighting of the Beech aircraft was achieved the applicant had, he said, forgotten about the Cessna lined up for take off on the runway. The applicant cleared the Beech aircraft for a touch and go training exercise on the runway without realising that the Cessna was already on that runway.
The applicant agreed, in his evidence, that a serious situation would have developed except for the Cessna pilot overhearing the clearance to land and drawing attention to his position on the runway and except for the fact that the pilot-in-command on the Beech aircraft had sighted the Cessna on the runway.
Only because he was alerted by the pilot of the Cessna the applicant instructed the Beech aircraft to "go around". He agreed that there was a failure on his part.
There had been two other incidents on that day where the applicant, by being alert to his responsibilities had averted a possible incident. In one incident the applicant, while clearing an aircraft for landing, discovered an aircraft on the runway without any authorisation of the Surface Movement Controller. At the time the applicant was the Aerodrome Controller.
The other incident involved the use of the short runway (12/30). In essence an aircraft instructed to follow a particular aircraft had misidentified the aircraft and had placed itself in a vulnerable position. The applicant noticed that the aircraft was appearing to follow the wrong aircraft and gave instructions to correct the situation thereby avoiding a possible conflict.
It was not suggested that these incidents had any causative effect in relation to the overlooking of the Cessna lined up on the runway but demonstrate that the applicant had been alert to avoid other possible incidents on that day and in particular that he conducted careful runway inspections.
Mr Read said in his affidavit (Exhibit 12) that he conducted the investigation of this incident. A copy of his report is exhibited to his affidavit. He found that the applicant had forgotten that the Cessna had been cleared to line up on the runway at the time the King Air was cleared for a touch and go landing. He also found that poor runway scan technique had failed to locate the Cessna lined up for take off. He also thought that poor strip work was a contributing factor.
Mr Read thought the situation had been more complex because of unusual banner tow operations being conducted at the time and haze from bushfires (or cane fires). However he did not consider these to be significant factors.
After the situation was identified by the transmission from the Cessna, Mr Read was of the opinion that the applicant's response was immediate and appropriate. In oral evidence he confirmed his views in the written report. He also said that strip work was not standardised at the time of the incident. Mr Read said that lapses in concentration would point against working in the Approach or En-Route streams in Air Traffic Control.
ConsiderationThere is a wealth of factual material before us. That material satisfies us that the applicant is an experienced Air Traffic Controller who has been regularly checked and assessed. We are also satisfied that he has been involved in an unusually high number of incidents during his service as an Air Traffic Controller. We have come to this view because other Air Traffic Controllers giving evidence before us did not seem to have been involved in the same number of incidents.
Clearly the applicant is an enthusiastic controller but he is slow to admit his own mistakes. He has been counselled for those mistakes. His advancement to a position of Full Performance Controller seems to have been delayed, in part, by some of those mistakes and the need to be retrained from time to time.
We set out the above only as background because we are satisfied that we need to consider the applicant as an experienced controller who has been counselled and retrained for his mistakes over the years with the result that he is a fully competent Full Performance Controller.
It is in that context that we have considered the applicant's part in three particular incidents. We have described those incidents in some detail and find as a fact that each of the incidents took place while the applicant was the responsible Aerodrome Controller.
In each of the three incidents there was either a breach of separation or the potential for a breach of separation. We are satisfied that such incidents must always be regarded as serious because a breach of separation may result in a conflict of aircraft resulting in a crash. We acknowledge that there is a mutually inclusive obligation on pilots to maintain separation of aircraft. However we are satisfied that when aircraft are subject to air traffic control for the purpose of landing or take off in controlled airspace contiguous to an airport then it will generally be the air traffic control system that has primary responsibility by giving instructions relevant to maintenance of separation.
We accept that it is reasonable to expect that an Air Traffic Controller will comply with both the general instructions and local instructions in the performance of air traffic control functions. There is considerable advantage to users and participants in the air traffic control system if a consistent application of procedures is maintained. Misunderstandings are thereby reduced and there is a reasonable basis to anticipate the normal procedures in the course of landing and take off.
We do not accept however that to rely on standard instructions is reasonable or acceptable if such reliance raises a prospect of breakdown of separation or worse.
In particular we do not accept that in the incident on 12 March 1999, where there had been a failure by the applicant to give effect to the expressed possibility of a missed approach by the Sunstate 'plane, that there is any excuse to be found in a blind reliance on local instructions. There was a failure to deal with the slow take off by the Cessna and its failure to comply with the standard instruction to turn left by the end of the runway. There was also a specific failure to anticipate the missed approach with positive instructions.
We do not regard the technique of "call traffic" as a system to somehow remove the Air Traffic Controller's responsibility onto the pilots as occurred in this incident.
We are satisfied there was a serious failure of air traffic control on 12 March 1999 which could have lead to a disaster. The applicant was the controller responsible because he kept both aircraft on his frequency but did nothing to maintain separation or even emergency separation.
In the context of what had occurred on 12 March 1999 we consider that the other incidents on 5 January 2000 and 30 August 2000, where procedures to maintain separation failed to be observed by the applicant, must also be regarded as serious incidents, each with its own potential for a disastrous conflict of aircraft.
As already noted we accept that the pilots have an obligation to maintain a lookout and maintain separation but we are not satisfied that obligation lessens the responsibilities of Airport Traffic Controllers.
With respect, we do not agree with the respondent's submissions as to the limited jurisdiction of this Tribunal but it is not necessary that we deal with those submissions.
We do agree that regulation 269(1)(c) is all about a failure with respect to any matter affecting the safe navigation or operation of an aircraft.
We accept that each incident taken on its own may well justify a suspension and re-training rather than the more serious result of cancellation of the licence. But we do not read regulation 269(1)(c) as requiring us to consider each incident as an isolated incident. To do so would, we believe, have the effect of reserving cancellation action under paragraph (c) to incidents so serious that only an actual crash of aircraft would justify the cancellation.
While there is nothing in the regulations to suggest that there should be a rule of "three strikes and you're out" we are satisfied that three serious incidents raises real issues regarding the safe operation or navigation of aircraft.
We had the advantage of the applicant giving his evidence before us over a period of four days. We have also had the advantage of reading a lot of material in the T documents and the exhibits. In so far as that material included medical and psychological reports we have not given any weight to it because we are not satisfied that the true situation is explained by those documents.
We have come to the conclusion that we are reasonably satisfied that the applicant is not a fit and proper person to have the responsibilities and exercise and perform the function and duties of a licensed Air Traffic Controller. There is a long history of admitted failures to perform including the three incidents we have described.
Having observed the applicant we are not satisfied that this is a case for suspension and retraining because we are satisfied that assessment, checking and retraining in the past has failed to overcome the applicant's refusal to correct past errors – he has continued to make similar errors after counselling and checking. That he made two serious errors with regard to separation of aircraft after the incident on 12 March 1999 confirms our view. It is also relevant to note that the applicant seeks to deflect responsibility for his errors onto others or the local instructions etc.
We have concluded that the applicant is not a fit and proper person to hold an Air Traffic Controller's licence. In determining who is a fit and proper person we have followed the judgments of the High Court in Australian Broadcasting Tribunal v Bond (1990) 94 ALR 11. As we understand that decision, while the phrase "fit and proper person" carries no precise meaning, we must take into account matters relevant to the context in which those words appear. That means we must consider the applicant's conduct in the context of responsibilities, functions and duties of a licensed Air Traffic Controller. While we do not seek to categorise the responsibilities and functions of Air Traffic Controllers we are satisfied that safety of air navigation and safety of operation of aircraft are primary responsibilities and functions at the heart of the air traffic control system.
For these reasons the decision to cancel the applicant's licence will be affirmed.
I certify that the 96 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member K L Beddoe, Brigadier I R W Brumfield and Mr I R Way, Members
Signed: .....................................................................................
AssociateDates of Hearing 1-5 October 2001 and 14-25 January 2002
Date of Decision 17 December 2002
Counsel for the Applicant Mr Rose
Solicitors for the Applicant Flower and Hart
Counsel for the Respondent Mr Horneman-Wren
Solicitors for the Respondent McCullough Robertson
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