Yu and Civil Aviation Safety Authority
[2005] AATA 274
•6 April 2005
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2005] AATA 274
ADMINISTRATIVE APPEALS TRIBUNAL Nº N2003/543
GENERAL ADMINISTRATIVE DIVISION
Re: ALBERT HO‑FEI YU
Applicant
And: CIVIL AVIATION SAFETY AUTHORITY
Respondent
DECISION
Tribunal: Mr E. Fice, Member
Date: 6 April 2005
Place: Melbourne
Decision:The decision of CASA to cancel Mr Yu's Special Certificate of Airworthiness must be affirmed.
(sgd) E. Fice
Member
CIVIL AVIATION -Special Certificate of Airworthiness - ex military aircraft - approval to operate over built-up areas - cancellation of Special Certificate of Airworthiness on safety grounds - allocation of permit index number - operations from Bankstown Airport - design and airworthiness of ex-military aircraft - ability to glide clear of built-up areas - special purpose operations - fatigue monitoring - standard certification of civil aircraft - view or demonstration
Civil Aviation Regulations 1988
Civil Aviation Safety Regulations 1998
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297
REASONS FOR DECISION
6 April 2005 Mr E. Fice, Member
1. This is an application by Albert Ho‑Fei Yu seeking review of a decision of the Civil Aviation Safety Authority ("CASA") made on 26 March 2003 which cancelled the Special Certificate of Airworthiness for Mr Yu's aircraft VH‑ATD under reg 21.181(6)(b) of the Civil Aviation Safety Regulations 1998 (the CAS Regulations)
2. At the hearing of this matter, Mr Yu was represented by Dr G. Flick of senior counsel, and CASA was represented by Mr B. Shields of counsel. Evidence‑in‑chief was given by way of affidavit and a number of deponents were cross‑examined.
3. The Tribunal had before it the documents lodged pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (the AAT Act), the applicant's Exhibits A1 to A34 and the respondent's Exhibits R1 to R11.
4. The hearing of the matter commenced on 25 August 2003 and proceeded until 29 August, when the hearing was adjourned. On 22 June 2004, the President of the Tribunal directed that the Tribunal be reconstituted. At the time of reconstitution of the Tribunal, evidence had been taken from a number of witnesses between 25 August 2003 and 29 August 2003. In accordance with the provisions set out in s 21A(6) of the AAT Act, I have relied on the transcript of evidence taken during the first week of hearing. No credit issues arose in the course of that evidence and there were no technical matters raised which required any clarification.
BACKGROUND
5. Mr Yu, who is a principal of the Sterling Group of Companies, acquired an Aero Vodochody L39C Albatross (L39C) aircraft, which was duly registered as VH‑ATD ("the aircraft"). Mr Yu purchased the aircraft, which is an ex‑military, training and light attack, two‑seater, single engine jet aircraft, in September 1998 and he has been flying it from Bankstown Airport, near Sydney, since September 1999. The aircraft uses Bankstown Airport as its "home base" and it is deployed to other airfields for the purpose of conducting its usual operations. The aircraft is used for a variety of activities including adventure flying, air shows, training of aircrew and non‑commercial passenger flights. All maintenance on the aircraft is carried out at Bankstown Airport. The aircraft was built in the Czech Republic in 1984.
6. On 1 January 2001 Mr Yu applied for a Special Certificate of Airworthiness for the aircraft, which was duly issued on 1 February 2001 in the Limited Category. The aircraft was apparently assigned a permit index number of 3, although there is some dispute about that. The Special Certificate of Airworthiness had an unlimited expiry date. It was subject to conditions which are listed in an annex attached to the Certificate. Amongst the conditions set out in the annex are conditions relating to operations to and from Bankstown Airport which, in effect, appear to grant the aircraft unfettered access to Bankstown Airport, provided it follows particularised arrival and departure tracks and procedures.
7. On 5 December 2002, an officer of CASA wrote to Mr Yu inviting him to show cause why CASA should not cancel the Special Certificate of Airworthiness issued for the aircraft. The letter stated that, although the Certificate of Airworthiness purported to allow the aircraft to be operated to and from Bankstown Airport, that did not constitute an approval for the purposes of reg 262AM(10) of the Civil Aviation Regulations 1988 (the Regulations). Therefore, it could not be relied upon for the purposes of operating over built‑up areas. Mr Yu did not respond to this letter. On 24 January 2003, a further show cause letter was sent to Mr Yu. On 5 February 2003 solicitors representing Mr Yu wrote to CASA stating that, in all aircraft operations, Mr Yu had complied with the limitations imposed by the Special Certificate of Airworthiness, that there had been no breaches of safety, either before the issuing of the Certificate or afterwards, and that there were no reasons, in the interest of aviation safety, why the Certificate should be cancelled.
8. On 18 March 2003, Mr Yu transferred his interest in the aircraft to Sterling Aviation Pty Ltd (Sterling). Notification of transfer was received by CASA on 28 March 2003.
9. On 26 March 2003, a delegate of CASA cancelled Mr Yu's Special Certificate of Airworthiness on the basis that CASA considered it necessary to do so in the interests of aviation safety. Notification of the cancellation was addressed to Mr Yu C/o Sterling.
10. On 1 April 2003, Mr Yu lodged an application for review of this decision with the Tribunal on the basis that the reviewable decision was addressed to him, presumably as the Certificate holder.
11. On 17 April 2003, the Tribunal heard an application for a stay of CASA's decision pending the substantive hearing of the application. A stay order was granted.
PARTIES' CONTENTIONS
12. Mr Yu contends that he was properly granted a Special Certificate of Airworthiness by Mr S. Dines, the person authorised by CASA to issue such certificates. The Special Certificate of Airworthiness was subject to a number of conditions, the relevant ones being:
Number 13.Flights are normally restricted to operation over non‑populous areas except as provided by special routes and airport arrival/departure tracks and procedures distributed in AIPs or approved by an authorised person or a CASA FOI. In the absence of such routes, all flights over the densely populated areas of a city or town must be individually approved by an authorised person or a CASA FOI.
Number 14.Operations from Bankstown are approved under the following conditions:
(a)no circuit operations on the Northern side of the field;
(b)preferred runway for departure is RWY29;
(c)if an unacceptable downwind components exists on 29, RWY11 may be used, in which case the aircraft will make an early right turn and climb to 1500';
(d)on departure, track west over the least populated areas until sufficient height is reached so that in the event of an engine failure, the aircraft will be able to glide clear of persons and property on the surface or return to Bankstown;
(e)on arrival, track via 2RN to arrive overhead the airfield at 1500' for downwind positioning on the southern side (only) of the field.
(Note that these procedures may conflict with standard procedures at Bankstown, and therefore, the pilot may need to advise BK TWR of these requirements before a flight.)
Number 15.When the aircraft is transiting over a city or town, the aircraft must fly at a speed and a height that, in the event of an engine failure will enable the aircraft to glide clear of persons and property on the surface.
13. The Special Certificate of Airworthiness was issued pursuant to reg 21.176 of the CAS Regulations, which, so far as it is relevant, provides:
21.176(1) …
(2)CASA or an authorised person may issue a certificate of airworthiness for an aircraft subject to any conditions that CASA or the authorised person considers necessary in the interests of aviation safety.
(3)A condition imposed under subregulation (2) may include operational limitations.
(4)Any conditions imposed under this regulation, and any conditions imposed under regulation 21.016 or 21.029B that limit the use of the aircraft, must be in writing, and set out in, or attached to, the certificate of airworthiness.
…
14. In addition to the restrictions imposed by an authorised person when issuing a Special Certificate of Airworthiness, particularly where limited category aircraft are concerned, operating limitations are also imposed by reg 262AM of the Regulations. In so far as it is relevant, reg 262AM provides:
…
262AM(10)A limited category aircraft may be operated over the built-up area of a city or town only if:
(a)CASA or an authorised person has assigned it, under subregulation (14), a permit index of 0; or
(b)CASA or an authorised person has assigned it a permit index of 1 and:
(i)it is only flown over the area to the least extent necessary to allow it to take off from, or land at, a particular aerodrome, or follow a procedure approved by CASA or an authorised person for the safety of other airspace users and persons on the ground or water; and
(ii)if it is using an aerodrome in a capital city — it follows an access route approved by CASA or an authorised person for the purpose; or
(c)CASA or an authorised person has approved it to do so.
(11) In considering whether to grant an approval under paragraph (10) (c), CASA or the person authorised under that paragraph must take into account the aircraft's permit index and anything else CASA or the authorised person considers relevant for the safety of other airspace users and persons on the ground or water.
(12) …
(13) …
(14) CASA or an authorised person must assign a permit index (that is, a whole number between 0 and 3) in accordance with Advisory Circular 21.25 issued by CASA, as published from time to time, to a limited category aircraft for the purpose of applying appropriate safety conditions to the operation of the aircraft.
15. It is Mr Yu's contention that condition 14, annexed to the Special Certificate of Airworthiness, constitutes an approval under reg 262AM(10)(c) of the Regulations, authorising operations by the aircraft over a built‑up area. CASA disagrees. It contends that the Special Certificate of Airworthiness with the annexed conditions is not an approval to generally operate over the built‑up areas of Bankstown for the purposes of reg 262AM(10)(c). CASA points out that the conditions annexed to the Special Certificate of Airworthiness do not refer to, nor are they expressed to be, an approval pursuant to that regulation. Furthermore, CASA says that paragraph 14 of the conditions makes no reference to the expression "… the built-up area of a city or town".
16. CASA refers to reg 21.176 of CAS Regulations and, in particular, sub‑regs (2) and (3). It points to the fact that the paragraphs in the annex to the Special Certificate of Airworthiness are preceded by the words "special certificate of airworthiness number BK/11118/02 is subject to the following conditions". This, CASA contends, clearly demonstrates that the conditions imposed by Mr Dines must have been imposed pursuant to reg 21.176. If that is the case, CASA says it follows that the matters stated in the annex to the Certificate are conditions and they cannot, at the same time, be an approval issued pursuant to reg 262AM of the Regulations. CASA contends that an approval to fly over built‑up areas under reg 262AM is an approval to allow an aircraft to do something which it cannot do without the approval. On the other hand, a condition or operational limitation deals with a separate and distinct subject matter which restricts an aircraft from doing something which it could otherwise do.
17. In answer to CASA's contentions, Mr Yu said that, if one looks at reg 262AM(10)(c) of the Regulations, it only requires an authorised person to approve operations over a built‑up area. There is nothing in reg 262AM(1)(c) which prescribes the particular form of an approval. Mr Yu contends that it does not matter that the conditions attached to the Special Certificate of Airworthiness make no reference to reg 262AM. The same is said about the fact that no reference is made to the fact that the aircraft may, in operating at Bankstown Airport, overfly built‑up areas. Mr Yu's contention is that Mr Dines was well aware of the built‑up areas around Bankstown Airport and he took that into account when drafting the conditions annexed to the special certificate.
18. In any event, CASA contends that it acted appropriately in cancelling the Special Certificate of Airworthiness in accordance with reg 21.181(6)(b) of the CAS Regulations, which, relevantly, provides:
(6) CASA or an authorised person may suspend or cancel a certificate of airworthiness for an Australian aircraft not covered by subregulation (5), by written notice given to its holder, if:
(a)…;
(b)CASA or the authorised person otherwise considers that it is necessary to do so in the interests of aviation safety.
19. CASA contends that, if the conditions set out in paragraph 14 of the annex to the Special Certificate of Airworthiness constitute an approval for the purposes of reg 262AM(10)(c) of the Regulations, then Mr Dines did not properly take into account the safety of other airspace users and persons on the ground or on the water. For that reason, CASA contends that it was necessary, in the interests of aviation safety, to cancel the Special Certificate of Airworthiness for the aircraft.
20. It is CASA's contention that, in accordance with reg 262AM(11), when considering whether to grant an approval under reg 262AM(10)(c) of the Regulations, it must take into account the aircraft's permit index and anything else that it or the authorised person considers relevant for the safety of other airspace users and persons on the ground or water. CASA must assign a permit index number in accordance with Advisory Circular 21.25 to a limited category aircraft for the purpose of applying appropriate safety conditions to the operation of the aircraft. According to CASA, the aircraft has been assigned the permit index number 3.
21. Mr Yu contends that the Advisory Circular (AC) 21.25 is, by its very nature, only advisory. Further, he contends that the permit index number supposedly assigned to the aircraft has not been lawfully assigned in accordance with the Regulations or at all. Nor has it been applied consistently to similar aircraft. The relevant Advisory Circular, AC21.25(2) dated March 2002, provides that its purpose is to provide information on the method used by CASA's Maintenance Review Board ("MRB") to determine the permit index number applicable to a limited category aircraft for the purpose of applying appropriate safety conditions to its operation. Mr Yu said that the MRB has come nowhere near the aircraft with a view to assigning a permit index number to it.
22. There is no dispute between the parties that a permit index 3 aircraft is an aircraft which poses the greatest risk to aviation safety. For that reason, greater restrictions are imposed on the operations of aircraft so categorised. Despite that, CASA contends that the operating limitations imposed by Mr Dines in the annex to the Special Certificate of Airworthiness indicate that he has treated the aircraft as a permit index 1 aircraft, rather than a permit index 3 aircraft. CASA refers to the restrictions imposed on permit index 1 aircraft in respect of approved access routes to airports as set out in reg 262AM(10)(b)(i) and (ii) of the Regulations. It contends that additional safety conditions should be imposed on permit index 3 aircraft or that, alternatively, an approval for a permit index 3 aircraft to be operated over the built‑up area of a city or town should only be given on a flight by flight basis. Mr Yu rejects such an interpretation, stating that this is an attempt to re‑write the Regulations, as it cannot be inferred or implied, nor is it to be expressly found in the Regulations, that approval to fly over built‑up areas should only be granted in exceptional circumstances and only on an individual application.
23. In any event, CASA contends that the operational restrictions set out in paragraph 14(d) and 15 of the annex to the Special Certificate of Airworthiness cannot be met. It was put that, on departure from Bankstown Airport, there will inevitably be circumstances where, should the aircraft experience an engine failure, it will be unable to avoid impacting the ground in residential or other built‑up areas around Bankstown. Mr Yu disputes this claim and contends that, in operating into and out of Bankstown Airport, the aircraft will, in the event of an engine failure, at all times be able to either make a forced landing on the airfield, land in cleared areas adjacent to the airfield or glide clear of built‑up areas around Bankstown Airport to make a forced landing in other cleared areas. This assertion is necessarily based on the premise that, in the event of the aircraft suffering a total engine failure, flight control will nevertheless be able to be maintained.
24. Finally, CASA contends that ex‑military aircraft such as the L39C were not designed or built to civil aircraft standards. This is the reason for granting such aircraft a Special Certificate of Airworthiness in the Limited Category. Therefore, CASA contends that it must take into account the fact that there are unknown design and airworthiness issues concerning the aircraft and, accordingly, a universal approval to operate over the built‑up areas of Bankstown is not appropriate. CASA contends that, unlike civil aircraft and engine manufacturers, military aircraft and engine manufacturers are not required to ascertain design faults that lead to recalls, safety alerts or service bulletins. For that reason, CASA has either no or only limited ability to ascertain design and manufacturing defects or problems, and it is unlikely to be notified of ongoing airworthiness defects or problems with the aircraft. Mr Yu rejects this claim and contends that the aircraft has been built and designed to standards which not only equate to civil aircraft standards, but, in fact, are higher. He contends that the aircraft has, since it first commenced flying, demonstrated that it has been built to standards which are as high, if not higher, than those applied to civil aircraft.
Considerations
Approval pursuant to reg 262AM of the Regulations
25. Mr Yu maintains that the conditions annexed to the Special Certificate of Airworthiness, issued in respect of Mr Yu's L39C aircraft, also constitute an approval for that aircraft to be operated over the built up areas of a city or town in accordance with reg 262AM(10) of the Regulations.
26. Aircraft airworthiness certification is the process of assessing an aircraft type against its type design and condition for safe operation. However, there are aircraft which do not meet the requirements for the issue of a standard airworthiness certificate for the reason that they are not of a type certificated civil design, or are no longer supported by a current manufacturer, for example historical aircraft, replica aircraft and special purpose aircraft. Ex‑military aircraft also fall into this category. Aircraft which do not qualify for standard airworthiness certification may be granted a Special Certificate of Airworthiness, as has the L39C aircraft. The airworthiness requirements for the issue of a Special Certificate of Airworthiness are far less onerous than those for aircraft which are granted a standard certificate of airworthiness. In fact, the requirements are minimal as is set out in reg 21.189 of CAS Regulations, which relevantly provides:
21.189(1)An applicant is entitled to a special certificate of airworthiness for an aircraft in the limited category for one or more special purpose operations mentioned in subregulation (3) if:
(a)either:
(i)CASA or an authorised person is satisfied that the aircraft meets the airworthiness requirements for the issue of a standard certificate of airworthiness (except any requirements that are inappropriate for the special purpose for which the aircraft is to be used); or
(ii)the aircraft is of a type that has been manufactured in accordance with the requirements of, and accepted for use by, an armed force, and for which the applicant can demonstrate to CASA or an authorised person a satisfactory history of operation; and
(b)as far as can be reasonably determined, CASA or an authorised person is satisfied that the aircraft is in a good state of preservation and repair and is in a condition for safe operation; and
(c)as far as can be reasonably determined, CASA or an authorised person is satisfied that the aircraft can reasonably be expected to be safe when it is operated under the conditions limiting its intended use; and
(d)the applicant meets the requirements of subregulation (2).
…
It was not disputed that the L39C aircraft does not meet the airworthiness requirement for the issue of a standard certificate of airworthiness.
27. In the course of evidence, comparisons were drawn between the performance of the L39C aircraft and other aircraft which fly under a standard certificate of airworthiness. However, given the vastly different requirements for the issue of a standard certificate of airworthiness, I should not place great weight on any such comparisons, for to do so is to assume, without proven data, that the L39C aircraft is capable of meeting the stringent standards which must be met by aircraft issued with a standard certificate of airworthiness. The highest it can be put for the L39C aircraft is that it is in a good state of preservation and repair; it is in a condition for safe operation; and it can reasonably be expected to be safe when it is operated under the conditions limiting its intended use.
28. The Special Certificate of Airworthiness for the L39C aircraft was issued by Mr Dines, a person authorised by CASA to issue such certificates. In accordance with reg 21.176(2) of the CAS Regulations, the Special Certificate issued in respect of the L39C aircraft contained conditions which are set out in the annex to that certificate. In particular, there are conditions which impose certain restrictions on the operation of the L39C aircraft over populous areas and operations at Bankstown Airport. The annex to the Special Certificate of Airworthiness commences with the words "Special Certificate of Airworthiness Number BK/11118/02 is subject to the following conditions". This, it was urged by CASA, is indicative of the fact that Mr Dines must have imposed those conditions pursuant to reg 21.176 of the CAS Regulations. According to CASA, it follows that, because the matters dealt with in the annex to the Special Certificate of Airworthiness are conditions, they cannot at the same time be an approval issued pursuant to reg 262AM of the Regulations. CASA suggested that, if Mr Dines purported to give approval under reg 262AM(10) he did not do so in the proper form and manner.
29. Mr Dines, who issued the Special Certificate of Airworthiness, although disclaiming authorship of the conditions set out in the annex, nevertheless said in evidence that upon granting the Special Certificate of Airworthiness to Mr Yu, he considered that he was also granting an approval for the L39C aircraft to operate over built‑up areas as is required under reg 262AM(10)(c) of the Regulations. There is nothing in reg 262AM(10) which provides or even suggests that approval must be given in any particular form or manner. When considering whether to grant an approval under reg 262AM(10(c), the grantor of the approval must take into account the aircraft's permit index and anything else that person considers relevant for the safety of other airspace users, persons on the ground or on the water. Mr Dines' evidence was that he did take those factors into account when granting the Special Certificate of Airworthiness and in the formulation of the conditions annexed to that certificate.
30. Mr Shields submitted that, because paragraph 14 of the conditions annexed to the Special Certificate of Airworthiness make no reference to "the built‑up area of a city or town", which are the words used in reg 262AM(10) of the Regulations, that omission is indicative of the fact that the conditions annexed to the Special Certificate of Airworthiness are not intended to be an approval pursuant to reg 2626AM(10). However, paragraph 13 of the conditions appears to be a global statement regarding restrictions applied to operations over "populous" areas. In my view, there is no practical distinction to be made between the use of the word "populous" and the expression "built‑up area of a city or a town". According to The Australian Concise Oxford Dictionary, "built‑up" means "…(of a locality) fully occupied by houses etc." and "populous" means "thickly inhabited". Therefore, as far as the protection which is intended to be afforded by reg 262AM(10) is concerned, in my view, the fact that different words have been used in paragraph 13 of the conditions does not mean that they cannot at the same time be intended to be an approval under reg 262AM(10). In fact, paragraph 13 does appear to be an attempt, albeit imprecise, to encapsulate the restrictions set out in reg 262AM(10) of the Regulations. The reference to the restriction of flight over populous areas; to special routes and airport arrival/departure tracks; and to procedures approved by an authorised person or a CASA flying operations inspector, broadly follows the restrictions set out in reg 262AM(10)(b). Although that regulation is only applicable to an aircraft which has been assigned a permit index of 1, and there is no reference to a permit index allocation in paragraph 13 of the conditions, it otherwise states the general position.
31. Paragraph 14 of the conditions annexed to the Special Certificate of Airworthiness commences with the sentence "Operations from Bankstown are approved under the following conditions:". The use of the word "approved", is, in my opinion, significant. It is true that no reference is made to the fact that operations from Bankstown Airport may require the aircraft to operate over built‑up areas, although that can be reasonably inferred from the nature of the conditions. In particular, condition 14(d) makes reference to tracking over "the least populated areas" to ensure that in the event of an engine failure, the aircraft is able to glide clear of persons and property on the ground or return to Bankstown Airport. If paragraph 14 is merely a condition imposed under reg 21.176(2) of the CAS Regulations, there would be no reason why CASA would need to state that operations from Bankstown Airport were approved. In my opinion, it would simply state that operations from Bankstown Airport could only be conducted under certain conditions. It would then follow that, although conditions had been imposed on operations out of Bankstown Airport, approval would, nevertheless, need to be obtained pursuant to reg 262AM(1) of the Regulations.
32. Although not pressed in its final submissions, CASA indicated that approvals, pursuant to reg 262AM(10), were only granted on isolated occasions and on a flight‑by‑flight basis rather than being a "blanket" approval. This practice is reflected in paragraph 13 of the conditions attached to the Special Certificate of Airworthiness where it is said that all flights over the densely populated areas of a city or town must be individually approved. It appears from Mr Bencke's evidence that CASA has adopted a practice of only allowing permit index 3 aircraft to fly over the built‑up area of a city or a town in exceptional circumstances and that approval would only be granted individually, on a "one‑off" basis. This practice in fact found its way into Advisory Circular 21.25(1). In his affidavit, Mr Bencke said that CASA has never issued a general permission for a permit index number 3 aircraft to fly over built‑up areas, but has issued those permissions on a "one‑off" basis for exceptional circumstances, such as a "one‑off" fly out after an inspection for the issue of a Certificate of Airworthiness. Condition 13 provides that unless special routes and airport arrival/departure tracks and procedures are approved by an authorised person, flights over densely populated areas of a city or town must be individually approved. The fact is that Mr Dines, an authorised person, did approve special routes and airport arrival/departure tracks and procedures (see condition 14). Therefore, no individual approval is called for in conducting operations to and from Bankstown Airport.
33. As Dr Flick submitted, there is nothing in reg 262AM(10) which suggests that CASA's discretion to grant approval should be fettered in any way. Even though it appears that CASA, as a matter of practice, issues approvals on a flight‑by‑flight basis, there was no evidence that any such policy had been approved by CASA. Even if there were such a policy, Dr Flick submitted that it would not operate so as to derogate from the discretion otherwise conferred by the legislature. In support of that submission, he relied on what was said by His Honour Brennan J in Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 where he said (at 640‑641):
…a policy must be consistent with the statute. It must allow the Minister to take into account the relevant circumstances, it must not require him to take into account irrelevant circumstances, and it must not serve a purpose foreign to the purpose for which the discretionary power was created. A policy which contravenes these criteria would be inconsistent with the statute…Also, it would be inconsistent with ss 12 and 13 of the Migration Act if the Minister’s policy sought to preclude consideration of relevant arguments running counter to an adopted policy which might be reasonably advanced in particular cases…His discretion cannot be so truncated by a policy as to preclude consideration of the merits of specified classes of cases. A fetter of that kind would be objectionable, even though it were adopted by the Minister on his own initiative…
That is not to deny the lawfulness of adopting an appropriate policy which guides but does not control the making of decisions, a policy which is informative of the standards and values which the Minister usually applies. There is a distinction between an unlawful policy which creates a fetter purporting to limit the range of discretion conferred by a statute, and a lawful policy which leaves the range of discretion intact while guiding the exercise of the power.
34. I accept Dr Flick's submissions regarding CASA's practice to approve a flight over built‑up areas on an individual basis. There is nothing in the regulation itself which requires such an approach to be taken, nor is there in evidence any such policy developed by CASA.
35. I am not persuaded by CASA's argument that, because the matters stated in the annex to the Special Certificate of Airworthiness are conditions, they cannot at the same time be an approval issued pursuant to reg 262AM of the Regulations. If paragraph 14 only referred to conditions, then the argument might have some force. However, paragraph 14 clearly purports to be an approval subject to particular conditions. Although paragraph 14 does not state that approval is granted under reg 262AM(10), that must necessarily be implied given the nature of the conditions which follow. Although one could fairly be critical of the way in which the conditions are drafted, on balance, there is no reason why the stated approval, under paragraph 14 of the conditions to operate from Bankstown Airport, cannot be regarded as an approval pursuant to s 262AM(10)(c). Accordingly, it is my view that CASA had granted approval pursuant to reg 262AM(10)(c) of the Regulations to Mr Yu to operate his L39C aircraft from Bankstown Airport.
36. Dr Flick raised two further issues regarding approval granted to operate the L39C aircraft from Bankstown Airport. He submitted that flights by the L39C aircraft into and out of Bankstown Airport do not constitute operations over the built‑up areas of a city or town. He also submitted that, in any event, the areas over which the L39C aircraft flies in the Bankstown area are not built‑up. Accordingly, he submitted that the take‑off and landing operations of the L39C aircraft at Bankstown Airport do not attract the requirements of reg 262AM(10) of the Regulations as those operations are outside the ambit of the regulation. Although it is not strictly necessary for me to address these submissions given that I have found that approval, pursuant to reg 262AM(10), was granted by CASA, for the sake of completeness, I will do so.
37. As to the first contention, Dr Flick submitted that the operations authorised by the Special Certificate of Airworthiness are those set out in paragraph 5 of the conditions, namely:
5. Operations of this aircraft is limited to the purposes of:-
(a)aerobatic flight; and
(b)exhibiting an ex‑military aircraft; and
(c)"adventure style" operation; and
(d)any operations in support of the above purposes, as described in reg 262AM(2) of the CAR 1988.
38. Regulation 262AM(2)(d) of the Regulations provides:
(2)A limited category aircraft may be used for any of the following operations in support of a special purpose operation for which the special certificate of airworthiness was issued:
(a)…
(b)…
(c)…
(d)taking the aircraft to or from a place where maintenance on the aircraft is to be done, or has been done;
…
Dr Flick submitted that taking the aircraft to or from a place where maintenance is to be done is not an operation over a built‑up area of a city or a town, within the meaning of reg 262AM(10). He submitted that, although take‑off and landing is an operation of the aircraft, it is an operation in support of a special purpose for which approval is granted under reg 262AM(2)(d). It follows that to preclude Mr Yu from exercising his right to carry out an operation in support of a special purpose, i.e. taking the aircraft to or from a place where maintenance is to be done or has been done, is to preclude a right which the legislature has expressly endorsed. According to Dr Flick, CASA can only exercise its power conferred under reg 21.81(6) of the CAS Regulations, where it is necessary to do so in the interests of aviation safety. As I understand that argument, Dr Flick contends that it cannot be necessary to preclude the L39C aircraft from exercising a very limited entitlement, being an entitlement to take‑off and land for the purposes of maintenance.
39. However, in my opinion, such an interpretation is unsustainable. Regulation 262AM(10) refers generally to operations over built‑up areas of a city or a town. Given the broad way in which that regulation is drafted, and given no distinction is made between various types of operations, I am led to the view that any operations whatsoever (which means any form of flight) over built‑up areas of a city or a town by a limited category aircraft must be first approved by CASA. If it be needed, further support for this interpretation can be derived from the fact that reg 262AM(2) of the Regulations lists, as operations in support of a special purpose operation, activities such as participation in an air display, practice flying of the aircraft for participation in an air display and testing the aircraft after maintenance. To suggest that these activities can be conducted over a built‑up area without CASA approval simply makes no sense. Further, there is nothing in reg 262AM(2) which suggests that the listed operations in support of a special purpose operation are in some way exempt from the requirements of reg 262AM(10). Needless to say, I would reject Dr Flick's submissions on this point.
40. Dr Flick’s second submission was that take‑offs and landings at Bankstown Airport do not take place over the built‑up area of a city or a town. He said that properly construed, the phrase "built‑up area of a city or a town" should be confined to operations of an aircraft over the "downtown" area of a city or a town, being that area which has been built up to accommodate the centre of commercial or other activities. Because the L39C aircraft, in landing or taking‑off from Bankstown Airport, is not operating over the downtown part of a city, Dr Flick submitted that it is not operating over the "built‑up area" of Bankstown. He did not explain where the "downtown area" of Bankstown is.
41. Mr Shields submitted that Bankstown Airport is located within the city of Sydney, being a suburb of that city and that there is no way that one can distinguish between the built‑up area of a city or a town and downtown itself. The Australian Concise Oxford Dictionary meaning of "built‑up" is fully occupied by houses etc. When used in the context of reg 262AM(10) of the Regulations, I have no doubt that the built‑up area of a city or a town encompasses not only houses but any other buildings of any kind which may be inhabited. As reg 262AM(11) provides, the main consideration is for the safety of other airspace users and persons on the ground or water. Therefore, I reject Dr Flick's submission that the expression "built‑up area of a city or a town" does not include all populated areas. It is my view that it is intended to cover just such areas.
42. Dr Flick also submitted that the expression "built‑up area of a city or a town" is to be contrasted with the expression "populous area". Mr Shields submitted that because reg 262AM(10) does not use the expression "populous area", it provides a wider scope for determining the area over which a limited category aircraft should not be operated without an approval. I was referred to reg 155 of the Regulations which deals with acrobatic flight in an aircraft. Although it is not clear why the words "populous area" are used, since populous means "thickly inhabited, built‑up area over a city or a town", it seems to me that the distinction is not significant.
43. Mr H. McGilvray, a CASA officer, exhibited to his affidavit photographs of Bankstown Airport and its surrounds. Those aerial photographs are of great clarity and disclose housing and factory development surrounding Bankstown Airport except to the west and north/west, where building development is restricted, at least to some extent by the presence of a river. Otherwise, it is fair to describe the area over which an aircraft would fly when taking off or approaching Bankstown Airport on either runway 29 or 11 as a built‑up area of Sydney. Accordingly, Dr Flick's submissions on this point must be rejected.
Allocation of permit index number
44. The obtaining of approval to operate a limited category aircraft over a built‑up area of a city or a town is dependent, to a significant extent, upon the permit index which has been assigned to a particular aircraft. Under reg 262AM(14) of the Regulations, CASA or an authorised person must assign a permit index number, being a number between 0 and 3, to a limited category aircraft for the purpose of applying appropriate safety conditions to the operation of the aircraft. Furthermore, a permit index number must be assigned in accordance with Advisory Circular 21.25, issued by CASA as published from time to time. Approval is only required under reg 262AM(10)(c) where a permit index number of 2 or 3 has been assigned to a particular aircraft. If an aircraft has a permit index number of 0, no authorisation or any special requirements attach to operations over a built‑up area of a city or a town. If an aircraft has been assigned a permit index number of 1, it may be flown over a built‑up area of a city or a town only if it is flown over the area to the least extent necessary to allow it to take‑off from, or land at, a particular aerodrome or to follow an approved procedure. If the aircraft is using an aerodrome in a capital city, it must follow an access route approved by CASA or an authorised person.
45. At the time the Special Certificate of Airworthiness was issued to Mr Yu in respect of the L39C aircraft, the relevant Advisory Circular was AC21.25(1), which was issued in April 1999. In March 2002, AC21.25 was revised and was re‑issued as AC21.25(2). Advisory Circular 21.25(2) states that it supersedes AC21.25(1), removing s 9 dealing with categorisation of permit index.
46. Advisory Circular 21.25(2) contains an annotation at the bottom of the first page to the following effect:
…
Advisory Circulars are intended to provide recommendations and guidance to illustrate a means but not necessarily the only means of complying with the Regulations, or to explain certain regulatory requirements by providing interpretative and explanatory material.
Where an AC is referred to in a 'Note' below the regulation, the AC remains as guidance material.
ACs should always be read in conjunction with the referenced regulations.
47. Notwithstanding the annotation contained on the bottom of the AC21.25(2), it is clear from the words used in reg 262AM(14) of the Regulations that CASA or an authorised person must assign a permit index number between 0 and 3 to a limited category aircraft in accordance with the Advisory Circular. Therefore, although the Advisory Circular may contain material which is by way of recommendation and guidance, the method for assigning a permit index number, which is set out in the Advisory Circular, is the only means by which a lawful permit index number may be assigned to a limited category aircraft. Paragraph 2 of AC21.25(2) states:
This Advisory Circular (AC) provides information on the method used by CASA’s Maintenance Review Board (MRB) for determining the Permit Index number applicable to limited category aircraft for the purpose of applying appropriate safety conditions to the operation of the aircraft.
48. It was submitted on behalf of Mr Yu that no permit index has ever been assigned to the L39C aircraft because the Maintenance Review Board (MRB) has never, in fact, examined or considered the L39C aircraft for such a purpose. Mr Yu relies on the evidence of Mr Mark Scott, who is a senior pilot employed by him. In his affidavit dated 27 June 2003, Mr Scott says:
However, the MRB has not met since 1999 and, as a result, a permit index has not been assigned to the aircraft by the MRB, but by CASA, and AC21.25(2) does not reflect the system of maintenance review by the MRB.
The first thing to be said about Mr Scott's statement is that Mr Scott does not purport to be a member of the MRB. He does not indicate the basis upon which he makes the statement, given that it does not seem to be from his personal knowledge. At best, it is hearsay or it is an opinion which Mr Scott does not appear qualified to give. I do not know how Mr Scott knows whether the MRB has met at all, let alone since 1999. Mr Scott then suggests that the permit index (number) has been assigned by CASA and not by the MRB. However, it is plain that the MRB is constituted by at least some CASA personnel. Paragraph 2 of the Advisory Circular makes that clear. Therefore, in my view it follows that any decision made by the MRB is a decision made by that body of persons with the authority of CASA. In other words, a decision to assign a permit index number is either made by CASA, or by persons authorised by CASA to do so, in accordance with reg 262AM(14). I do not understand what Mr Scott means when he refers to AC21.25(2) not reflecting the system of maintenance review by MRB. The question in issue is the allocation of a permit index number, not the system of maintenance review by the MRB.
49. Mr Yu also relied on the evidence of Mr William Hamilton, who is an experienced pilot with more than 20,000 hours flying experience. At the date of swearing an affidavit on 8 July 2003, he was the President of the Australian Warbirds Association and he operated an ex‑military aircraft. At the time of swearing his affidavit he was also a member of the Standards Consultative Committee of CASA, which he said is an industry committee set up to examine all proposed legislation. Although Mr Hamilton, in his affidavit, states that it was intended that the MRB would convene regularly to review the application of the permit index system, systems of maintenance for aircraft awaiting certification under Part 21 of the CAS Regulations, and to review approved systems for aircraft operating under limited category Special Certificate of Airworthiness, he does not state that a permit index number must be issued by the MRB. Mr Hamilton also states that, despite industry requests to CASA, the MRB has not convened since about 1999. Although I do not know the basis upon which Mr Hamilton makes this statement, it is not, for these purposes, significant. Mr Hamilton's concern seems to be that systems of maintenance which have been approved for certified aircraft in the limited category are not being reviewed in light of new technology or new practices. Mr Hamilton, at paragraph 23 of his affidavit, correctly states in my view, that the purpose behind the permit index system was to assist an authorised person to assign a permit index (number) as a consideration for issuing a Special Certificate of Airworthiness.
50. Advisory Circular 21.25(2) has three attachments which form part of the circular. The first attachment is a flow chart designed to assist CASA or a person authorised by CASA to determine a permit index number between 0 and 3 for single‑engined aircraft. The second attachment is similar to the first but it applies to multi‑engined aircraft. The third attachment sets out a list of various aircraft; their maximum take‑off weight; the permit index allocated to that aircraft; and the MRB approval date. There is an entry for an L39 aircraft, which I assume is an L39C aircraft, recording a maximum take‑off weight of 5670 kilograms and an allocated permit index number of 3. Under the heading MRB approval date are the letters "TBA".
51. Paragraph 5 of AC21.25(2) sets out the rationale for the categorisation of risk by the allocation of a permit index number. The relevant paragraphs are as follows:
5.1 The system of risk assessment (Permit Index) has been developed to provide a series of benchmarks against which each aircraft may be assessed in relation to the associated risk incurred in operating it. This index is used by CASA to set appropriate operational restrictions to minimise this risk to third parties.
5.2 The Permit Index is equally applicable to all limited category aircraft irrespective of the aircraft origin. It provides, for a given aeroplane, a basis on which to judge the perceived risk of an accident occurring and the potential damage that such an accident could cause.
5.3 Safety is not absolute and it can only be quantified by acceptance, in the worst case scenario, of the possible accident. The rationale used for the Permit Index philosophy requires control of the exposure to risk for third parties to a possible accident. It follows that the number and type of occupants i.e. crew and passengers, and the third party risk associated by flight over people and property, become factors that need to be taken into account in the categorisation of risk.
5.4 The risk assessment is based on similar risk management principles used with civil certificated aircraft in the various categories:
(a)single-engine aeroplanes are initially categorised by stall speed, which is the main parameter that determines the energy consideration in the event of a forced landing;
(b)for multi-engine aeroplanes the main parameters are the degree to which an engine failure can be accommodated as well as size/weight; and
(c)the design and maintenance philosophy and complexity is also considered to ensure an adequate weighting of the risk assessment.
5.5 As many of the applicable aircraft will be operating in a more conservative role as compared to their original intent, the level of maintenance may be able to be tailored to suit the new role. Additionally, it is desirable in some applications where utilisation is likely to be very low, to trade additional limitations for a very basic level of maintenance, particularly in respect of arbitrary overhaul lives of major components.
5.6 The Permit Index assessment charts (see Attachments 1 and 2) that have been developed take account of the design code philosophies and the level of reliability achieved through maintenance.
5.7 A summary of the aircraft types with CASA Permit Index and associated safety conditions are shown in Attachment 3.
5.8 ...
52. Paragraph 6.2 provides:
6.2 Single engine aeroplanes constitute:
(a)aeroplanes with direct civil equivalents;
(b)aeroplanes with a VSO less than 61 knots CAS;
(c)aeroplanes with a VSO equal to or greater than 61 knots CAS but less than 81 knots CAS; and
(d)aeroplanes with a VSO equal to or greater than 81 knots CAS and/or MMO not greater than Mach 1;
where VSO is the stalling speed in the landing configuration, and MMO is the maximum operating mach number. If VSO cannot be established then CASA Certification Section should be contacted for further advice.
53. Dr Flick submitted that it is significant that the annex to AC21.25(2) records that MRB approval is "TBA", which it is understood means "to be advised". Dr Flick submitted that this was conclusive of the fact that no permit index number has ever been assigned to the L39C aircraft. CASA, on the other hand, submitted that the letters "TBA", beneath the column headed "MRB approval date", are not significant as there is no legislative requirement to record any such date. In my opinion, CASA's submission is correct. Regulation 262AM(14) of the Regulations requires CASA or an authorised person to assign a permit index number. Therefore, even if the MRB has not assigned or assessed an aircraft for a permit index number, and CASA has assigned such an index number in accordance with AC21.25(2), an index number has been lawfully assigned to the aircraft. Mr Dines said in evidence that he considered that a permit index number of 3 had been assigned to the L39C aircraft. The fact that the permit index number was not discussed at a meeting of the MRB on 2 March 1999 is hardly surprising. The purpose of that meeting was to discuss the maintenance system which had been submitted and subsequently amended by the MRB in relation to the L39C aircraft.
54. Dr Flick also submitted that there is no rational explanation which can be gleaned from the Advisory Circular itself to explain why the stall speed of 81 knots was selected. However, the significance of entry upon this inquiry was not explained by Dr Flick. Regulation 262AM(14) of the Regulations simply requires a permit index number between 0 and 3 to be assigned to an aircraft in accordance with the Advisory Circular. The Advisory Circular, at attachment 1, which relates to single‑engined aeroplanes, is primarily concerned with the stall speed of the aircraft for the reasons set out in paragraph 5.4. It is the factor which determines the energy consideration in the event of a forced landing and, it follows, that the higher the energy factor the greater the risk of damage. How or why the figures that are used in attachment 1 were chosen is not a matter for me to determine, nor could I, given the lack of evidence in respect of that matter. It was suggested that the lack of consistency or explanation in the Advisory Circular is such that little, if any, weight can be placed upon it by the Tribunal. In relation to single‑engined aeroplanes, it is clear from attachment 1 that, where a single‑engined aeroplane has a stall speed (VSO) equal to or greater than 81 knots, it must be assigned a permit index number of 3. Neither its maintenance category nor its design philosophy is capable of affecting the permit index number assigned. If its stall speed is less than 81 knots, then design philosophy and maintenance category may, depending on the categories under which that aircraft falls, allow it to be reduced to a permit index number of 2 or even 1.
55. In my opinion, there is nothing inconsistent with the approach taken in attachment 1 and the explanation regarding risk assessment set out in paragraph 5.4 of the Advisory Circular. It is plain that for single‑engined aeroplanes the main consideration is stall speed. As Mr Bencke explained in his evidence, the risk of engine failure on a single‑engined aircraft is vastly different to a multi‑engine failure on a multi‑engined aircraft. A single engine failure on a multi‑engined aircraft would not, in the ordinary case, result in a forced landing. Therefore, it appears logical that a single‑engined aircraft must be treated differently to a multi‑engined aircraft, as the risk of a forced landing resulting from engine failure is significantly higher than it is for a multi‑engined aircraft. Both the risk of an accident occurring and the potential for damage must be considered (para 5.2). Clearly, in those circumstances, design philosophy and maintenance category must be secondary considerations and they are not to be considered unless the stall speed of the aircraft is les than 81 knots.
56. Whether other single‑engined aircraft have been assigned the correct permit index number is not something which the Tribunal should take into account. In any event, the submissions that the Jet Provost Mk 5A aircraft has a stall speed in excess of 81 knots and has been assigned a permit index number of 1 appears to be incorrect on the evidence.
57. In a document prepared by Mr John Lonergan, which sets out Jet Provost/Strikemaster stall data, the author appears to have gone into considerable detail when calculating the stall speed for those two aircraft. The stall speed for a Jet Provost Mk 5 or 5A without tip tanks is 80.2 knots. The stall speed of a Strikemaster is 85.3 knots. Therefore, although the Strikemaster should be a permit index 3 aircraft, the Jet Provost 5A aircraft could be assigned a permit index between 1 and 3. Attachment 3 to the Advisory Circular discloses that the BAE 167 Strikemaster has been allocated a permit index number of 2. Although that is apparently incorrect, it has no bearing whatsoever on the matters which I must decide.
58. Mr Yu also contends that CASA has misinterpreted Advisory Circular 21.25(2) because it requires a stall speed of an aircraft to be determined by reference to the aircraft's maximum take‑off and landing weight. According to CASA, although AC21.25(2) does not refer to maximum operating weight, the only sensible interpretation of the expression "stalling speed in the landing configuration" must be at the aircraft's maximum operating weight. CASA contends that the applicant's interpretation should be rejected because it creates unintended, inconvenient or absurd results, and it relies on Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297 at 304‑305 and at 319, 321 by way of authority for that proposition. The main reason for CASA's submission is that the standard calculation of the stall speed of an aircraft, which is recognised in its flight manual, is at maximum operating weight. According to CASA, if Mr Yu's contentions were accepted, that would allow an aircraft to be assessed as an aircraft with a stall speed of less than 81 knots at the time the permit index number is assigned (presumably because it is carrying minimum fuel), but there is nothing to prevent the aircraft operating over built‑up areas at its maximum operating weight which would result in an increased stalling speed.
59. However, whether the stall speed of the aircraft must be determined at its maximum operating weight, or at some other weight, is a matter which I need not determine for these purposes, although I suspect the contentions made by CASA are correct if only for the reason that an assessment of risk necessarily needs to consider the worst case possibility. The problem for Mr Yu is that there was no evidence before me which indicates that the L39C aircraft has a stall speed which is less than 81 knots. There is a statement made in a letter from Mr Yu's solicitors to CASA dated 5 February 2003, in which it is said that the aircraft has a stalling speed of 79 knots at a weight of 3600 kilograms (i.e. with minimum fuel). However, other than that bold statement, there is no evidence as to what the fuel load is which is described as minimum fuel, nor is there any evidence in any of the aircraft operating manuals of a stall speed of 79 knots for this aircraft.
60. At paragraph 11 of Mr Scott's affidavit, sworn on 27 June 2003, he states that the technical data provided by AERO Vodochody indicates that the aircraft's stall speed at maximum weight is 88 knots. The aircraft operating manual for the L39C aircraft provided by Czech Jet Inc. indicates that the stall speed at 4500 kilogram weight with landing flaps extended and without stores attached to the aircraft is approximately 163 kilometres per hour or 97 knots. The Aero Vodochody operating manual shows a stall speed of 92 knots with landing flaps extended at 4500 kilograms all up weight. An Aero Vodochody publication sets out the basic performance data for an L39C aircraft at 4300 kilograms weight. The stall speed is said to be between 91 and 103 knots. An extract from an aviation publication (possibly Jane’s All the World Aircraft) states that the stall speed of the C variant of the L39 aircraft is 90 knots. That is presumably at an all up weight of 4295 kilograms, which, it is stated, is the weight of the C variant aircraft with full fuselage and wing tip tanks. The Nigerian Air Force operating manual states that the stall speed is 84 knots at 4300 kilograms weight. Therefore, although various stall speeds are stated for this model aircraft, it can be said with reasonable certainty that its stall speed with a full fuel load will exceed 81 knots.
61. According to the Czech Jet Inc. operating manual, the stall speed of the L39C aircraft without stores and at 3600 kilograms weight is 92.9 knots. The Aero Vodochody and Nigerian Air Force operating manuals do not show stall speeds at this weight. It therefore appears to me that, without any evidence to the contrary, the stall speed of this aircraft, either with minimum fuel onboard or at maximum take‑off weight, will exceed 81 knots. It follows that a permit index number assigned in accordance with AC21.25(2) must result in this aircraft being assigned a permit index number of 3. In any event, if CASA uses the maximum operating weight of the aircraft in assessing permit index number of every aircraft which is required to have assigned to it a permit index number, then all aircraft will be treated equally and the measure of risk attached to that aircraft, relative to other limited category aircraft, will be the same.
62. It was also argued that the problems identified in the Advisory Circular by Mr Yu have already been identified by officers of CASA whose responsibility it is to administer the permit index system. Reference was made to a number of internal memoranda produced by Mr Tony Rothwell, who set out his views regarding flaws he believes exists in the Advisory Circular. Be that as it may, it is not my task, in deciding this matter, to determine whether there are flaws in the system adopted by CASA for assigning permit index numbers. It is my duty to determine whether CASA has acted in accordance with the law in the course of assigning a permit index number to the L39C aircraft. For the reasons I have set out above, it is my view that CASA has complied with reg 262AM(14) of the Regulations in allocating a permit index number of 3 to the L39C aircraft.
63. The fact that the L39C aircraft has been assigned a permit index number of 3 is, of course, only one factor which needs to be considered by CASA in deciding whether to grant an approval for the aircraft to be operated over the built‑up area of a city or a town. Under reg 262AM(11) of the Regulations, CASA is also required to take into account anything else it considers relevant for the safety of other airspace users and persons on the ground or water.
64. In my opinion, the principal issue in this case is whether CASA, by its letter of 26 March 2003, properly exercised its discretion to cancel the Special Certificate of Airworthiness for the L39C aircraft pursuant to reg 21.81(6)(b) of the CAS Regulations. Mr Dines is of the view that, subject to the restrictions imposed in the annex to the Special Certificate of Airworthiness for the L39C aircraft, it is safe to operate the aircraft into and out of Bankstown. CASA, of course, disagrees strongly and is of the view that Mr Dines wrongly exercised his discretion to grant a general approval for operations into and out of Bankstown, not only because a general approval ought not have been granted, but also because he failed to properly take into account all of the risks involved in operating this type of limited category aircraft over the built‑up area of a city or a town. In particular, CASA points to the aircraft's design and maintenance, the limitations imposed by Bankstown airfield itself and the limitations imposed as a consequence of the aircraft's performance.
L39C design and maintenance
65. The L39 Jet Trainer with the turbofan AI‑25TL engine fitted was originally designed to meet the specifications for basic and advanced training for the Soviet Air Force. In 1972, it became the basic trainer for the Union of Soviet Socialist Republics (USSR), Czechoslovak and the German Democratic Republic (East German) Air Forces. According to Mr B. Rehn, a licenced aircraft maintenance engineer with approximately 32 years experience on both military aircraft used for military purposes and ex‑military aircraft operated as civilian aircraft, Aero Vodochody designed the L39C as a basic trainer for the USSR with basic military application. According to Mr Rehn, the civil and military design codes and philosophies are the same except for the fact that military aircraft have an additional role.
66. Mr C. Torkington, a chartered engineer and fellow of the Royal Aeronautical Society, disagreed with Mr Rehn's opinion. Although he stated that he was not able to locate military standards applicable to Eastern Bloc countries used in the 1970s, he had considered British civil and military standards which applied between 1985 and 1992. This inquiry revealed that there were 226 standards in which civil and military requirements differed. Mr Torkington explained that the basic problem is that civil standards are established by two separate requirements, the US Federal Aviation Regulations ("FAR") Part 23, which deals with aircraft in the utility, acrobatic and commuter categories, and FAR Part 25, which deals with aircraft in the transport category. Apparently, European standards are almost identical. However, according to Mr Torkington, a high energy, a high performance military aircraft would better be accommodated by FAR 25 standards except for the fact that those standards exclude single‑engine, single pilot aircraft. The requirements of FAR 23, which generally apply to light general aviation aircraft, are limited to single‑engine aircraft with a stall speed not exceeding 61 knots. Because the L39C aircraft has a stall speed which exceeds 61 knots, the FAR 23 standard would not apply, essentially because the crashworthiness exception clauses contained in those standards may not be able to be met.
67. Furthermore, Mr Torkington said that he understood Eastern Bloc military standards to be considerably worse than contemporary Western civil standards. He explained that the Russian (USSR) civil certification requirements were thoroughly tested by the United States of America (USA), Canada and the United Kingdom between 1967 and 1992, and were found to be unacceptable. Apparently, the Russian Federation has now adopted the USA design standards (FARs).
68. Mr Hamilton disagreed with Mr Torkington and expressed the view that military aircraft (in general) are designed to different standards, but not necessarily to lower standards than civil aircraft. That, as I understood it, was his opinion and it was not based on any material produced to the Tribunal.
69. Mr Rehn said that the design philosophy of the L39C aircraft can be found in the pilot manual or the "Twelve Books of Technical Data" that came with the aircraft when it was imported into Australia. The technical data were not before the Tribunal, although three versions of a flight or operations manual were. The manuals provide general information about the aircraft, its flight characteristics and normal and emergency procedures. Very little is said about design philosophy, other than the fact that the aircraft's primary mission is basic and advanced training. The manuals are essentially instructions designed for the needs of a flight crew inexperienced in the operation of the aircraft. Mr Rehn also said that the aircraft has been "over engineered" for reliability and strength. He conceded that design codes acceptable under the Chicago Convention regarding design and production of aircraft, cannot be directly compared with military designed and produced aircraft. However, he said that they are similar and that it certainly did not follow that the military standard relating to the design of aircraft is inferior to civil standards. In his view, military aircraft are designed and built to a standard that is as good or superior to civil aircraft. He also said that, in his opinion, Eastern Bloc aircraft were designed and constructed to at least the same quality and standards to those designed and built in the West. The L39 aircraft was designed by Aero Vodochody and manufactured for use as a standard jet trainer for Warsaw Pact countries, except for Poland. Mr Rehn pointed out that the United Nations, the US military and NATO have hired hundreds of Russian designed aeroplanes and helicopters to carry troops and equipment to various regions throughout the world. He did not indicate whether these were military aircraft, civil aircraft or both. Mr Rehn said that civil and military design codes and philosophies are the same except for the combat role assigned to military aircraft.
70. Mr B. Collins, who gave evidence on behalf of Mr Yu, is a former Air Vice‑Marshal in the Royal Australian Air Force (RAAF) where he served for 38 years. He was a production and development test pilot of military aircraft. After leaving the RAAF, he has acted as a consultant to a number of private aviation companies and has carried out flight tests on single‑jet aircraft, such as the Russian‑made MiG‑15 and the Polish‑made Iskra. In his opinion, the standards to which those military aircraft were built, in some respects, are more demanding than Western civil standards. He also acted as a consultant to an Israeli company, Elibit, which was bidding for the lead‑in fighter project for the RAAF in or about 1995. Apparently the company made a bid with an Aero Vodochody L59 aircraft which was developed from the L39 series. Mr Collins said that at that time, he acquired some knowledge of the design philosophy of Aero Vodochody and, as a result of that experience, it is his opinion that the design capability of Aero Vodochody is as good as any in the West. He also said that his understanding of the design philosophy of Eastern European training aircraft is that it is conceived to prevent students from encountering marginal flight envelop conditions or exceeding the aircraft's structural limits. On the other hand, Western design philosophy is to demonstrate marginal flight envelop conditions and the ability to recover the aircraft should it encounter those conditions. Therefore, according to Mr Collins, the characteristics of the flight control system of the L39 aircraft are designed to prevent a student pilot exceeding the structural limits or the limiting flight envelop. Further, details were not given by Mr Collins. It is significant that the L39C aircraft does not qualify for a standard Certificate of Airworthiness for an individual aircraft.
71. Mr Torkington explained, in some detail, the process of civil aircraft certification. The first step in the process is the issue of a type certificate for a particular aircraft, which is followed by the assessment of an aircraft type against its type design. He also explained that certification, be it civil or military, is based upon a detailed design code, required analysis and testing, including flight testing, to substantiate the design against the code and manufacturing quality assurance to ensure that all aircraft meet the type certification standard. He further explained that certain critical maintenance aspects are part of the process which results in the issue of a type certificate or a similar document.
72. While the type certification process involves acceptance of the aircraft type as conforming to its data specifications, it does not cover individual aircraft. Individual aircraft, operating in the civil context, are verified by an independent regulatory authority of the state issuing a standard Certificate of Airworthiness. It needs to be demonstrated that the aircraft meets the type certification standard; that it is properly maintained to an approved standard; and that it posses a maintenance and continuing airworthiness system for maintaining the aircraft in service to ensure that it will continue to safely meet the type certification standard during its operational life. A flight manual is also approved for each individual aircraft. Upon meeting the requisite standards, an aircraft is issued with a standard Certificate of Airworthiness which is internationally recognised for each individual aircraft.
73. According to Mr Torkington, the certification process for military aircraft is different. While civil aircraft certification and continuing airworthiness are covered by a regulatory process independent of the design organisation, manufacturer or operator, military aircraft are usually operated by the same organisation responsible for the design standards, aircraft certification, manufacturing approval, the maintenance system and continuing airworthiness. Mr Torkington said that rules can and are readily broken if dictated by operational necessity. Both Mr Rehn and Mr Collins strongly disagreed with Mr Torkington on this point. Mr Collins said that, in his experience in the RAAF, he could not recall a single instance where authorisation was given to exceed maximum all up weight or any part of the flight envelop of any aircraft, either in peace time or in war. He also said that in his experience, he was aware of civil aircraft operators obtaining authorisation in particular circumstances to exceed normal limitations.
74. Mr Torkington explained that Part 21 of the CAS Regulations sets out, amongst other things, the current Australian requirements for the issue of type certificates, production certificates and airworthiness certificates. He explained that Part 21 of the CAS Regulations closely follows the US Federal Aviation Regulations (FAR) Part 23. Upon application for a Certificate of Airworthiness, an applicant may apply for a type acceptance certificate in respect of a type‑certificated aircraft which has been certificated by the National Aviation Authority (NAA) in one of a certain number of recognised countries. The following data must be provided upon making the application:
(a)evidence that the type design has been approved by the NAA of the recognised country by issue of a type certificate or equivalent document;
(b)details of any equivalent safety determinations or waivers made in the course of the type certification;
(c)a copy of the applicable type certificate data sheet;
(d)a copy of the flight manual that contains all of the available options applicable to the type, and that was approved by the NAA that issued the foreign type certificate;
(e)a copy of the manufacturer's instructions for continued airworthiness of the aircraft;
(f)a copy of the parts catalogue for the aircraft; and
(g)a list of all current field service documents applicable to the aircraft.
75. A requirement for type acceptance is the continued support of the aircraft and components in the form of service bulletins and other instructions, amendments to documents, and foreign airworthiness directives. The applicant must provide CASA with an undertaking from the holder of a foreign‑type certificate to continue to supply:
(a)service bulletins;
(b)other instructions for continuing airworthiness; and
(c)any amendments to flight manuals, maintenance manuals, parts catalogues, notes on field service documents or other such documents applicable to the aircraft type.
Mr Torkington said that those reporting requirements are not imposed on military manufacturers.
76. A person may apply for a type certificate in respect of a foreign aircraft type if that aircraft type has a type certificate or equivalent issued by the NAA of a non‑recognised country. CASA may issue a type certificate for a foreign aircraft type where it:
(a)is shown to meet the applicable airworthiness standards set out in reg 21.17 of the CAS Regulations (i.e. FAR 23, FAR 25 etc), and the foreign NAA has issued a certificate to the effect that the aircraft type meets those requirements; or
(b)the aircraft has been certificated by the NAA of a country which is a contracting state of ICAO as meeting the airworthiness requirements of that country (but not necessarily the standards of reg 21.17 of the CAS Regulations), and it has been shown to meet any other requirements imposed by CASA that are necessary to provide a level of safety equivalent to that provided for comparable aircraft.
Again, Mr Torkington said that those requirements do not apply to military aircraft.
77. According to Mr Torkington, an inherent part of type certification of imported aircraft is the continued support of the aircraft and components in the form of service bulletins and other instructions, including amendments to documents, and foreign airworthiness directives. He said that such support requirements are not imposed on military manufacturers.
78. Where an aircraft has been manufactured under a production certificate, an applicant is entitled to a standard Certificate of Airworthiness for the new aircraft without anything further, except that CASA may inspect the aircraft to determine that it conforms to the type design and is in a condition for safe operation. Mr Torkington explained in some detail the requirements for the issue of a production certificate. He also pointed out that a holder of a production certificate is responsible for:
(a)maintaining the quality system in conformity with data and procedures approved for that production certificate;
(b)ensuring conformity with production under a type certificate;
(c)marking all products and parts produced under the production certificate so that they can be identified;
(d)notifying any changes in writing to the responsible CASA district office any changes that may affect the inspection, conformity or airworthiness of the product; and
(e)reporting all failures, malfunctions, and defects as required by reg 21.3 of the CAS Regulations.
None of these requirements are imposed on military manufacturers.
79. Mr Torkington also explained in some detail the requirements imposed on a manufacturer seeking to manufacture aircraft under a type certificate. It is sufficient to say that the requirements are stringent and complex, involving testing and checking by CASA prior to approval. Mr Torkington also said that a type certificate holder/licensee is responsible for reporting any failure, malfunctions and defects as required by reg 21.3 of the CAS Regulations. Those reporting requirements are not imposed on military manufacturers and, further, neither CASA nor any other civil regulator has any involvement in the design, manufacture and continuing airworthiness of military aircraft.
80. By way of distinction, Mr Torkington explained that a Special Certificate of Airworthiness is not one which meets the requirements of the comprehensive and detailed airworthiness code required for a standard certificate of airworthiness. The limited category of Special Certificate of Airworthiness is unique to Australian aircraft. According to Mr Torkington, prior to the issue of reg 21.189 of the CAS Regulations dealing with limited category Special Certificates of Airworthiness, CASA published a Notice of Proposed Rule Making which, in dealing with a limited category aircraft, said:
The limited category is intended to provide a basis for the selective operation, for special limited purposes, of series‑production factory built aircraft which, although they undoubtedly meet some formal airworthiness requirements, cannot be shown to comply in all respects with the requirements for the issue of a standard certificate of airworthiness.
Eligible aircraft may be civil‑certificated types that do not comply in all respects with currently accepted design standards, but where the area of non‑compliance is not important in relation to the intended usage of the aircraft. Ex‑military aircraft that had been accepted for use by an armed force may also be eligible.
81. As Mr Torkington explained, fundamental to the limited category is the principle that potential participants are to be made fully aware of the risks in flying in those aircraft. This is clearly set out in reg 262AM of the Regulations.
82. Mr Rehn said in evidence that the L39 aircraft is operated in the USA, Canada, the United Kingdom, France, Netherlands and other countries in Europe. He said that the aircraft is accepted, by the relevant civil aviation authorities in those countries, to operate out of airports that are surrounded by populated areas. However, he did not suggest that there was a type certification for this aircraft in any foreign country. In fact, he admitted that the L39 was not certificated in the USA, except that it was allowed to fly under the experimental category of aircraft in that country. He thought, but did not know, that the aircraft had ICAO certification in France and he thought that Estonia granted an air certification, Estonia being an ICAO member. He said that nobody needed to have the L39 aircraft certificated in the USA under FAR 23 as the aircraft was used mainly for private purposes and not for business purposes. He admitted that he was not familiar with the certification process in Australia and that he had not been involved with the L39C aircraft in question in this case. He said that the L39 aircraft had civilian certification in the Czech Republic and that he thought it was acceptable in Germany, but he had no further information regarding that.
83. As far as the matter of aircraft certification is concerned, I have no doubt that the L39C aircraft in question does not, at least at present, meet the certification standards required for a standard Certificate of Airworthiness. That is not to say that necessarily the L39C aircraft is less safe than aircraft which have a standard Certificate of Airworthiness, but it does mean that CASA cannot be satisfied that it meets the minimum requirements for the issue of a standard Certificate of Airworthiness, and therefore, cannot be satisfied that it is as safe as a fully certificated aircraft.
124. Much was sought to be made of the capability of the aircraft to perform what is referred to as a "turn back" manoeuvre. This involves the aircraft, having achieved a certain altitude and airspeed after take‑off, upon suffering an engine failure, performing a climbing tear‑drop manoeuvre such as to position the aircraft back onto the runway from which it has just taken off. This type of manoeuvre is not one which is prescribed or recommended in any of the flight manuals for this type of aircraft. Mr Scott gave evidence of the altitude and airspeed at which the aircraft could perform this manoeuvre, although there are some discrepancies in his evidence. In his affidavit sworn 27 June 2003, he states:
The aircraft is able to turn around and land on Bankstown Airport in the event of an engine failure, once it has reached a height of 300 feet and 160 knots.
However, the demonstration turn back manoeuvres shown on the video, which were performed at altitudes of around 300 feet, only involved the throttle being reduced to idle while the speed brake remained retracted. One turn‑back manoeuvre performed at Williamtown was from a higher altitude, approximately 500 feet at about 160 knots with the speed brake extended. Although in all of the turn‑back manoeuvres performed on the video, it is apparent that Mr Scott is able to perform that manoeuvre, it was clear from watching the video and from Mr Scott's evidence that the aircraft is manoeuvred at the edge of its flight envelop in performing a turn back. In fact, it was obvious that the aircraft is flown in the area of buffet which indicates that it is at its maximum angle of attack for the airspeed being flown.
125. Mr Scott agreed that only a very small control movement further aft would result in the aircraft entering a stall. Given that the margin for error in this manoeuvre is very small, it is not one which should be performed by pilots who are not experienced or practised in performing it. No doubt Mr Scott is able to do so given his extensive military background, but the same could not necessarily be said of other pilots who do fly the aircraft from Bankstown airfield and who do not have the benefit of Mr Scott's background or experience. It is plainly a manoeuvre of "last resort" and not one that, in any event, should ever be performed over built‑up areas. Should the aircraft be stalled in the course of the manoeuvre, it would clearly never make it back to the airfield and, in fact, there is a possibility of a loss of control given the high angles of attack coupled with high bank angles involved in the course of the manoeuvre. Furthermore, if there were any significant headwind on take‑off from the selected runway, it is clear that the aircraft, if it is able to return to the airfield, will be landing downwind at a significantly higher ground speed and also a reasonable distance away from the approach threshold. This was demonstrated by the approach at Nowra where the aircraft would have landed beyond the 1500‑foot runway marker. That might be satisfactory on a long runway. However, it would be totally unsatisfactory on a runway the length of 29/11C at Bankstown Airport. Although a turn back manoeuvre can be performed, it should not be considered when determining whether the aircraft is safe to operate from Bankstown airfield. It may well be a manoeuvre performed by military pilots at military airfields which generally have no built‑up areas around the flight path, when making such an approach. Furthermore, military aircraft of this type are generally fitted with live ejection seats thereby leaving the pilots with an alternative should the manoeuvre not be successful. Relying on the turn‑back manoeuvre in the confines of the Bankstown aerodrome is simply unacceptable.
CONCLUSIONS
126. By letter dated 25 August 2000, CASA wrote to Mr Yu explaining that, in the interest of aviation safety, it did not intend to allow permit index 3 aircraft to operate from any aerodrome that would involve flight over a built‑up area of any city or town, except in exceptional circumstances. The letter also stated that CASA would not allow permit index 3 aircraft to be operated from Bankstown, Moorabbin or Essendon Airports. Mr Yu was invited to return his special Certificate of Airworthiness so that the conditions annexed to that certificate could be amended by cancelling condition (14) which prescribes a route to be followed or runway to be used at a given aerodrome, the use of which involves flight over a built‑up area. The letter made it clear that, if the certificate were voluntarily surrendered for amendment, the aircraft would not be grounded as a result of that action having been taken. Despite CASA's letter of 25 August 2000, on 1 February 2001, Mr Dines issued to Mr Yu a special Certificate of Airworthiness in the limited category for the L39C aircraft which, in effect, permitted his aircraft continuous access to Bankstown airport. CASA issued show cause notices to Mr Yu on 5 December 2002 and, again, on 25 January 2003, whereby Mr Yu was asked to show cause why his special Certificate of Airworthiness should not be cancelled. Mr Yu's solicitors responded to the second show cause notice. Nevertheless, CASA was satisfied that grounds existed which would justify the cancellation of the special Certificate of Airworthiness for the L39C aircraft.
127. In its reasons for cancelling the Special Certificate of Airworthiness for Mr Yu's aircraft, CASA first pointed out that condition 13 of the Conditions attached to the Special Certificate of Airworthiness provides that all flights over built‑up areas must be individually approved. Although Mr Yu responded that condition 14 provided him with general approval to operate over the built‑up areas of Bankstown and that this was an approval which satisfied the requirements of reg 262AM(10)(c) of the Regulations, CASA expressed the view that the matters raised in condition 14 are contrary to the interests of aviation safety and are not appropriate conditions to place on the Special Certificate of Airworthiness. The reason for this was said to be the fact that the aircraft could not glide clear of populous areas upon departure from Bankstown in the event of an engine failure. In any event, according to CASA, condition 14 of the annex to the Special Certificate of Airworthiness makes no reference to it being an approval pursuant to reg 262AM, and therefore it could not be relied upon to conduct operations over the built‑up areas of Bankstown.
128. Ultimately, CASA relied on reg 21.181(6)(b) of the CAS Regulations, which permits CASA or an authorised person to suspend or cancel a Special Certificate of Airworthiness where CASA considers that it is necessary to do so in the interests of aviation safety.
129. I am not persuaded by CASA's argument that the conditions set out in the annex to the Special Certificate of Airworthiness cannot, at the same time, constitute an approval pursuant to reg 262AM of the Regulations. In my view, irrespective of the fact that the approved operations into Bankstown under condition 14 are inappropriate for an aircraft with the performance of an L39C aircraft, Mr Dines was a person authorised by CASA to grant such an approval. I am also not persuaded by the argument that approval to operate over built‑up areas such as those around Bankstown Airport are required to be issued only on an individual flight by flight basis. Condition 13 attached to the Special Certificate of Airworthiness clearly provides that where special routes and airport arrival/departure tracks and procedures are approved by an authorised person, individual approval is not required. If that were not sufficient, placing such a restriction on the exercise of the discretion conferred by reg 262AM(10)(c) is not, in my opinion, permissible. Furthermore, CASA has not developed any formal policy in respect of such operations. It therefore seems to me to be the better view that CASA had granted approval pursuant to reg 2626AM(10(c) of the Regulations to Mr Yu, subject to the conditions set out in the annex to the Special Certificate of Airworthiness, to operate his L39C aircraft from Bankstown Airport.
130. However, the fact that approval was granted to Mr Yu for operations into and from Bankstown Airport upon issue of the Special Certificate of Airworthiness does not preclude a finding that the approval or the conditions under which that approval was granted may be inappropriate and not in the interests of aviation safety. Reg 21.181(6)(b) of the CAS regulations provides that, at CASA's discretion, it may suspend or cancel a Certificate of Airworthiness. Having done that, the focus of inquiry should be whether it was necessary to do so in the interests of aviation safety.
131. It is readily apparent from reg 262AM(10) and (11) that the approval for limited category aircraft to operate over a built‑up area of a city or town depends significantly upon the permit index number assigned to that aircraft. The permit index number system used by CASA is one which was developed after an in‑depth review of historical and ex‑military aircraft operations in Australia in conjunction with industry.
132. The evidence does not support the argument put on behalf of Mr Yu that a permit index number has never been assigned to the L39C aircraft. Advisory Circular 21.25(2), at attachment 3, discloses that the aircraft has been assigned a permit index number of 3. This was also the evidence of Mr Dines, who said that he took into account that permit index number when considering the conditions which should be annexed to the Special Certificate of Airworthiness. The fact that the index number was not assigned by the MRB is not to the point. Regulation 262AM(14) provides that CASA or an authorised person must assign a permit index number to a limited category aircraft. In my view, either CASA or Mr Dines has done so.
133. Further, on the evidence before me, there is nothing to suggest that an index number of anything but 3 could be assigned to the L39C aircraft, given that a number must be assigned in accordance with the Advisory Circular in force at that time. There was no evidence before me which indicated that, even at minimum fuel weight, the L39C aircraft has a stall speed which is less than 81 knots.
134. The design and maintenance issues regarding the L39C aircraft are, in my opinion, most significant. In particular, the distinction between the process of civil aircraft certification and military aircraft certification clearly exposes the problem faced by a regulatory authority. The process required to determine whether a civil aircraft meets certification standards is well established and, if that process is followed, CASA can have confidence in the total airworthiness of that aircraft. However, as far as ex‑military aircraft are concerned, although the design philosophy of such aircraft may not be significantly different to those of civil aircraft, there is no way that any regulatory authority can be assured that such an aircraft meets the standards which must be met for full aircraft certification. Although the L39C aircraft obviously has some support from the manufacturer, it is limited. There is no certainty that all Service Bulletins, other instructions, amendments to documents and Airworthiness Directives are provided by the manufacturer. In fact, some doubt was expressed about continuing support following Boeing's involvement in Aero Vodochody.
135. There is a very large difference between the requirements for the issue of a Special Certificate of Airworthiness when compared with a standard Certificate of Airworthiness. It is not appropriate to compare aircraft that have been issued with a Special Certificate of Airworthiness with those that fly under a standard Certificate of Airworthiness. This is clear enough from a reading of reg 262AM(5), which in essence provides that a passenger who flies in a limited category aircraft must be told that the design, manufacture and airworthiness of the aircraft are not required to meet any standard recognised by CASA and that CASA does not require the aircraft to be operated to the same degree of safety as an aircraft on a commercial passenger flight. The passenger must also be told that he or she flies in the aircraft at his or her own risk.
136. Fatigue monitoring is obviously a very important aspect of ensuring the continued airworthiness of an aircraft. The L39C aircraft is not equipped with any fatigue monitoring equipment and reliance is solely on visual inspections. However, as Mr Torkington said, visual inspections will not necessarily identify a possible problem. He also pointed out that where there is a change in the spectrum of operations for the aircraft, such change can significantly reduce the fatigue life of structural components. Mr Scott's evidence was that this aircraft now operated predominately at lower altitudes and, particularly, below 20,000 feet. That should be the cause for some concern to the operators of the aircraft.
137. There was also some evidence of a high accident rate for L39C aircraft when operated as civil aircraft. Many of those accidents were due to pilot error and not due to mechanical failure, although a number were due to mechanical failure caused, at least in some cases, by poor maintenance. Whatever the reasons for the number of accidents with this type of aircraft, the statistics serve to disclose a higher general risk level when operating this aircraft when compared with civil, fully certificated aircraft.
138. The suitability of Bankstown airfield for operations by the L39C aircraft was called into question. A number of difficulties were encountered in attempting to determine the take‑off and landing performance of the aircraft essentially for the reason that this aircraft, unlike all fully certificated civil aircraft, does not have its own flight manual. Three flight manuals were in evidence and all produced different data, although, to be fair, the Nigerian Air Force Manual does seem to have been written for a different variant of the L39 aircraft. Nevertheless, it was finally conceded by CASA that runway 11/29C at Bankstown is of adequate length for normal operations of the L39C aircraft. In any event, if it were necessary, the fuel load could be reduced in order to ensure that the aircraft's performance was sufficient to satisfy the requirements for take‑off and landing distance allowing for the safety factor.
139. Mr Yu sought to make much of the glide performance of the L39C aircraft. He assumed that in the event of an engine failure either on take‑off or in the course of an approach for landing, that the aircraft would, at all times, remain under control. CASA disputed such an assumption and I accept that it must remain a possibility that control will not always be available in the event of an engine failure. An engine fire or a compressor blade being dislodged and propelled through the casing of the engine could cause damage to flight control rods which pass directly above the engine.
140. As for the glide performance of the aircraft, I have no doubt that Mr Scott and Mr Dines, who gave evidence in respect of this matter, took the most optimistic view. A slightly less optimistic view is obtained if one carefully reads the Operations Manual for the aircraft. Also, the possible forced landing areas identified by Mr Dines and Mr Scott are not particularly suitable for this aircraft. It is obvious from the aerial photographs that areas such as the golf course, the ovals or even Warrick Farm racecourse are areas which are less than half of the length of the runway at Bankstown. In my opinion, the prospects of a satisfactory forced landing on areas of such limited length, with obstacles around them, must be questionable. Furthermore, it is obvious that any forced landing, whether after take‑off or when approaching the airfield to land, would require flight over heavily built‑up areas. In my view, any forced landing in the areas suggested by Mr Dines or Mr Scott would be unacceptably hazardous to persons and property on the ground. Also, for the reasons I have set out above, any attempt at a turn back manoeuvre from Bankstown Airport would be positively hazardous. That is not an acceptable solution to an engine failure after take off problem.
141. There is one other matter which I must address. In the course of the hearing, Dr Flick invited me to take a view of the aircraft. In fact, what Dr Flick initially suggested was that I should fly in the aircraft in order to experience for myself, its performance. When I declined to do so, Dr Flick strongly suggested that I should at least visit Bankstown airfield for the purpose of viewing the aircraft, the airport and its surrounds and experiencing or witnessing the take‑off and landing of the aircraft. As I understood the request, Dr Flick seemed to be asking me to observe a demonstration, rather than, strictly speaking, taking a view.
142. The reasons why I refused Dr Flick's invitation to fly in the aircraft, so that its performance could be demonstrated to me, are twofold. First, because the aircraft is equipped with only two seats, it would necessarily mean that I would need to be in the aircraft alone during the demonstration with, mostly probably, Mr Scott. In those circumstances, the traditional safeguards relating to the presentation and evaluation of evidence would not be present. I would have been subjected to views and opinions from Mr Scott in the absence of any representative from CASA and without the opportunity for CASA to challenge anything that was said to me in the course of such a demonstration. Although I appreciate that the rules of evidence do not apply to the Tribunal, to conduct a demonstration in that fashion would, in my opinion, be most unfair. The second reason for declining that form of demonstration was that I would undoubtedly be left with subjective impressions of the performance of the aircraft without any means of evaluating those impressions. For example, on take‑off or landing, there is no way in which I could determine the take‑off distance or landing distance. Save for the broad painted markers at 500 feet, 1000 feet and 1500 feet from its threshold, there are no other markers on the runway which would allow me to determine take off or landing distance. Also, the flight performance that I would witness would be specific to the fuel load carried in the aircraft on that day and to the weather conditions prevailing at the time. The Operating Manuals make it obvious that aircraft performance varies considerably depending upon meteorological conditions, such as temperature, density altitude and prevailing wind. Therefore, at best, I would have been given a “snapshot” of the performance of the aircraft under only one set of meteorological conditions. It would tell me very little, if anything, about the general performance of the aircraft and, in fact, I could easily have formed an erroneous view as a consequence of such a demonstration.
143. Alternatively, Dr Flick requested that I go and see the aircraft for myself, witness a take‑off and landing, and examine the surrounds of Bankstown Airport. I again declined to do that as I could see no value at all in the exercise. Watching the aircraft take‑off and land would tell me absolutely nothing if I were observing from a distance of one to two kilometres. I would have no indication whatsoever as to the distance from the threshold at which the aircraft would lift off, nor would I be able to determine its landing run. In any event, as I have found, neither of those matters have influenced my decision in any way. Merely viewing the aircraft parked on the tarmac would achieve nothing. A view of Bankstown Airport from the ground is nowhere near as effective as the view which is provided by the aerial photographs which were in evidence. I therefore reject the submission made by Dr Flick that my failure to undertake a view and/or a demonstration denied or limited the ability of Mr Yu to be given a reasonable opportunity to present his case. According to Gillies P. in his text Law of Evidence in Australia (1987) at p31:
The view is not for the purpose of generating evidence, and the data gleaned from it is not to be used to supplant evidence; rather the view is merely for the purpose of facilitating the court's and tribunal's understanding of the issues, the evaluation of the evidence, and the application of the law to this evidence.
144. P Gillies also points out that it is a matter for the court's discretion as to whether a view should be conducted by it. He explains that both parties should be present at the view and that a view conducted in the absence of a party could produce unfairness. The learned author also states that a Judge has discretion as to whether a demonstration should be conducted. If a demonstration is to be received into evidence, it would need to be held in the presence of the parties, unless one or both consent not to be present. The party should also be given an opportunity to test any evidence as a result of a demonstration. This would not have been possible had I flown in the aircraft, presumably with Mr Scott.
145. Having carefully weighed up all the arguments put by the parties in this matter, I have arrived at the conclusion that CASA's decision to cancel the Special Certificate of Airworthiness, issued to Mr Yu, is the preferable decision. In my opinion, it is necessary in the interests of aviation safety to withdraw the approval given to Mr Yu to operate the L39C aircraft from Bankstown Airport on a regular basis. The risk to persons and property on the ground in the vicinity of Bankstown Airport are unacceptable.
146. The decision of CASA to cancel Mr Yu's Special Certificate of Airworthiness must be affirmed.
I certify that the one hundred and forty-six [146] preceding paragraphs are a true copy of the reasons for the decision of:
Mr E. Fice, Member
signed: Catherine Lake
Clerk
Date of hearing: 25-29 August 2003, 12-16 July 2004, 20‑21 July 2004, 15 October 2004 and 26 November 2004
Date of decision: 6 April 2005
Counsel for applicant: Dr G. Flick
Counsel for respondent: Mr B. Shields
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