Quadrio and Civil Aviation Safety Authority [2011] AATA 709 (12 October 2011)

Last Updated: 13 October 2011

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2011] AATA 709

ADMINISTRATIVE APPEALS TRIBUNAL )

) No 2009/3207

GENERAL ADMINISTRATIVE DIVISION		)
	Re		JOHN QUADRIO

Applicant

And

CIVIL AVIATION SAFETY AUTHORITY

Respondent

DECISION

Tribunal

Deputy President P E Hack SC; Air Vice Marshal Frank Cox

Date 12 October 2011

Place Brisbane (heard in Cairns)

Decision

The decision under review is affirmed.

..............Signed..................
Deputy President

CATCHWORDS
CIVIL AVIATION – cancellation of commercial pilot’s licence – applicant investigated for low flying, aerobatic flight and reckless flying – flight recorded by passenger on various video films – cancellation of licence based on video footage – decision under review affirmed

Civil Aviation Act 1988 (Cth) s 20A

Civil Aviation Regulations 1988 (Cth) reg. 2, 138, 155, 157, 224, 269

Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321

Hughes and Vale Pty Ltd v New South Wales (No 2) [1955] HCA 28; (1955) 93 CLR 127

Re Griffiths and Civil Aviation Authority (1994) 34 ALD 554

Re Nichols and Civil Aviation Safety Authority [2009] AATA 646

Re Taylor and Department of Transport (1978) 1 ALD 312

REASONS FOR DECISION

12 October 2011

Deputy President P E Hack SC; Air Vice Marshal Frank Cox

INTRODUCTION

1. On 28 September 2008 Mr John Quadrio flew, as pilot in command, a Robinson R44 helicopter VH-HTE on a scenic flight in and around Hastings reef, east of Cairns. There were three paying passengers in addition to Mr Quadrio. One of the passengers used a mobile telephone to film parts of the flight. The film of the flight was subsequently posted on YouTube by the passenger.
2. The film came to the attention of officers of the Civil Aviation Safety Authority. The view was taken within the Authority that the manner of Mr Quadrio’s flying depicted in the film warranted both the taking of criminal proceedings against him and the cancellation of his commercial pilot’s licence. The criminal proceedings were dismissed in September 2010 when the Commonwealth Director of Public Prosecutions offered no evidence.
3. In these proceedings Mr Quadrio seeks a review of the Authority’s decision to cancel his commercial pilot (helicopter) licence.

THE LEGISLATION

4. It is as well to start by noting that the Authority (and the Tribunal in its stead) is obliged to regard the safety of air navigation as the most important consideration^[1].
5. The decision subject of these proceedings was a decision made under s 269 of the Civil Aviation Regulations 1988 (Cth) (CAR). That section allows the Authority to vary, suspend or cancel an approval, authority, certificate or licence (collectively, the “authorisation”) if it is satisfied that one or more of the grounds set out in paragraphs (a) to (e) of CAR 269(1) exist. The Authority’s decision was made, and is sought to be affirmed, on the basis of the grounds in CAR 269 (1)(c) and (d), that is,

“(c) that the holder of the authorisation has failed in his or her duty with respect to any matter affecting the safe navigation or operation of an aircraft;
(d) that the holder of the authorisation is not a fit and proper person to have the responsibilities and exercise and perform the functions and duties of a holder of such an authorisation.”

6. The case for the authority is that Mr Quadrio flew in breach of several particular duties under either the Civil Aviation Act 1988 (Cth) or the CAR. It will be more convenient to defer a consideration of the terms of those provisions for the moment. We should, however, note the general duty imposed upon a pilot in command by CAR 224(2) in these terms:

“(2) A pilot in command of an aircraft is responsible for:

(a) the start, continuation, diversion and end of a flight by the aircraft; and

(b) the operation and safety of the aircraft during flight time; and

(c) the safety of persons and cargo carried on the aircraft; and

(d) the conduct and safety of members of the crew on the aircraft.”

FACTUAL BACKGROUND

7. We start with some uncontroversial matters of fact. In September 2008 Mr Quadrio was employed by Heli Charters Australia Pty Ltd, a company specialising in “rainforest, adventure and reef” trips from Cairns aerodrome. He had been employed by Heli Charters since November 2006. Whilst Mr Quadrio had undertaken other flying assignments, including low level weed eradication, the bulk of his flying for Heli Charters was joy and scenic flights to and from a helicopter landing pontoon at Hastings Reef, a coral cay 28 nautical miles to the northeast of Cairns. Hastings Reef was, and is, a popular destination for charter vessels from Cairns or Port Douglas, including the Osprey V, a vessel based in Cairns. Heli Charters had an arrangement with the operators of the Osprey V for passengers on the Osprey V who wanted to undertake a scenic flight over the reef to be ferried from the vessel to the pontoon and returned after the flight. The standard scenic flight was to Norman Reef, some 5 nautical miles to the north, at an altitude of 1,000 feet and return to Hastings Reef. The flight generally took about 12 minutes.
8. Hastings Reef and Norman Reef were within an area known as Marlin CTAF (common traffic advisory frequency). Thus there was no central air traffic control; pilots were instead required to “see and avoid” using a common frequency to broadcast their position and intentions to other users within the CTAF.
9. Mr Quadrio says that he has no particular memory of the flight on 28 September 2008. It seems likely that HTE left Cairns aerodrome around 1 p.m. There were three passengers for the scenic flight. One was Mr Ben Coglan who occupied the left hand front seat. Two female passengers were in the rear seats. Mr Coglan had with him a mobile phone capable of taking video film images. In the course of the subsequent investigations officials from the Authority took possession of the video clips from the camera. The video clips are now recorded on eight discs lettered A to H. A majority of the flight is shown on these eight discs.
10. Many of the discs are unremarkable. Thus G, H and A (in that order) deal with the commencement of the flight – loading of passengers, starting of the engine and such like – to lift off from the pontoon. Disc B appears to show HTE flying above reefs at what appears to be a safe altitude. Disc D shows the passengers after landing on the pontoon. The only remarkable feature of that film is that the two female passengers exhibit no obvious signs of distress, indeed they appear quite happy, and content to take photographs of one another in front of HTE. We mention that only because of some evidence given by Mr Coglan his recollections of the effect of the flight upon those passengers. We will return to that aspect of the matter in due course.
11. But, in any event, we do not understand the Authority to criticize any of the flying recorded in or on discs G, H, A, B or D. The case for the Authority focussed upon the flying depicted on discs F, C and E. The first two, it is said, show low flying and the last shows what the Authority describes as an aerobatic flight. Given that all the relevant witnesses accept that HTE traversed a figure of eight during this passage of flight we will, for the sake of a neutral description, call it the figure of eight manoeuvre.
12. Some days after the flight Mr Coglan put some of the video footage on YouTube under the title “Aerobatics in a Robinson R44 over the reef off Cairns”. In December 2008 the YouTube video came to the attention of Mr Dennis Allwood, a flying operations inspector employed by the Authority and based in Cairns. It was evident from the film that the helicopter involved was HTE. He made enquiries of Heli Charters and identified Mr Quadrio as the likely pilot of HTE at the time of the flight. He had a short conversation with Mr Quadrio in which Mr Quadrio agreed that he “probably” had been the pilot of the flight shown in the YouTube clip. Mr Allwood made it plain in that conversation that he regarded the flying as “dangerous” and advised Mr Quadrio that the matter would be forwarded to the Authority’s investigation section.
13. The investigation of the incident became the responsibility of Mr John Moore, an employee of the Authority. It is not necessary to detail the steps taken by Mr Moore; it is enough to say that the investigation resulted in Mr Quadrio being charged with four offences,
    • reckless operation of an aircraft contrary to s 20A(1) of the Civil Aviation Act;
    • aerobatic flight contrary to CAR 155(1)(c);
    • aerobatic flight below 3,000 feet contrary to CAR 155(3)(a); and
    • low flying contrary to CAR 157(1)(b).

Eventually the view was apparently taken that the charges could not be proved to the criminal standard and they were dismissed in September 2010.

14. In the meantime, and by notice dated 26 March 2009, Mr Quadrio had been invited by the Authority to show cause why action under CAR 269 ought not be taken. The notice made reference to a DVD showing images of a flight made by Mr Quadrio as pilot in command and gave an account of some of the flying said to be depicted in the DVD but it did not identify the flight by reference to a particular date or to a particular location. Correspondence ensued with solicitors acting for Mr Quadrio which resulted in the Authority identifying the date of the flight, correctly, as 28 September 2008 and the place of flight, incorrectly, as Norman Reef^[2]. That error was corrected in the Authority’s letter of 2 June 2009 which identified the place of flying as “at or near Hastings Reef”.
15. On 30 June 2009 the Authority made the decision to cancel Mr Quadrio’s commercial pilot (helicopter) licence. These proceedings were commenced shortly afterwards. The hearing was delayed pending the resolution of the criminal proceedings.

THE WITNESSES

16. We will start by noting our views about the reliability (or otherwise) of the witnesses called in the proceedings.
17. Mr Quadrio professes no particular recollection of the flight. He says, in terms, that it was one of many flights that he had made and there is no particular reason to recall this flight. And, while professing no recall of the flight, he surmises that he would only have engaged in the low flying and the figure of eight manoeuvre to avoid other traffic or birdlife. He did not suggest that he could recall that happening, only that such events might explain the flying. The manoeuvre he performed was, he said, a “wingover”, a standard manoeuvre to turn suddenly.
18. The Authority submits that Mr Quadrio ought be regarded as being unreliable. It points to variations in his account of events and to variations between Mr Quadrio’s account and that of Mr Coglan. And, it submits, the discs show no evidence that would support the notion that Mr Quadrio flew in the manner depicted to avoid a hazard.
19. We do not regard Mr Quadrio’s initial denial as reflecting adversely on his credibility. Criminal proceedings had been threatened against him and the Authority had misdescribed the flight. Mr Quadrio was quite entitled to deny being the pilot in command of the flight as then particularised. We have the same view of the variations between Mr Quadrio’s evidence and that of Mr Coglan. As will appear we do not consider Mr Coglan to be a reliable witness. But we do consider Mr Quadrio’s explanation fanciful when regard is had to what is visible in, and audible on, the discs. There is no visible evidence of other aircraft or birdlife, there are no radio calls of the type that might be expected to follow a manoeuvre to avoid another aircraft and the cockpit “chatter” is not consistent with such a manoeuvre. Mr Coglan can be heard in disc E saying “that’s awesome” and “that’s unreal” in response to the figure of eight manoeuvre. His reaction demonstrates enjoyment at the ride, not concern about a manoeuvre driven by a need to avoid a potential hazard.
20. But beyond that, a figure of eight manoeuvre is an improbable response to a perceived hazard because its effect was to put the helicopter in a similar position without any real opportunity to observe any perceived hazard.
21. Thus we reject Mr Quadrio’s proffered explanation and, more importantly, consider that it is an explanation conjured up to avoid him having to explain the reality of his flying that day. That reality, as we will explain later, is that he was seeking to entertain his passengers.
22. Equally, we place no reliance on the evidence of Mr Coglan on any matters of controversy. An error about the name of the reef is explicable, all the more so when Norman Reef was the reef to which HTE circuited. But there is much of Mr Coglan’s recollection that is contradicted by the evidence of the films. His evidence of having been asked by Mr Quadrio to make a radio call for take-off clearance cannot be true. Not only was the passenger’s seat not connected to an external radio, there is no hint of Mr Coglan making such a call in discs H and A which show take-off. And, for good measure, as we understand the position it is not necessary to request a take-off clearance in a CTAF area. All that is necessary is to broadcast the fact of take-off and the proposed trip on the CTAF frequency.
23. Mr Coglan’s credibility is not assisted by the fact that when he posted the film on YouTube he claimed, falsely, that he was a Qantas first officer and had piloted the flight of HTE shown in the film. Mr Coglan was not, and had never been, a Qantas pilot. Mr Coglan has a tendency to exaggerate. We are not satisfied that we can safely rely on his evidence.
24. Mr Moore, the Authority’s investigator, gave uncontroversial evidence. We see no reason not to accept his evidence. We should say that we reject the notion implicit in some of the questions directed to him in cross-examination that he acted to prevent material favourable to Mr Quadrio being included in the documents provided to the Tribunal pursuant to s 37 of the Administrative Appeals Tribunal Act 1976 (Cth).
25. Mr David Ringrose is a senior examiner in the forensic imaging section of the Australian Federal Police. Mr Ringrose examined the films taken by Mr Coglan and concluded that in disc E, between 31 seconds and 35 seconds, HTE was banking (to the left) between 67° and 70°. That evidence was not challenged and we accept it.
26. Mr Allwood is an experienced pilot with over 10,000 hours experience on fixed winged aircraft and appropriately 500 hours on helicopters including the Robinson R44. In common with many of the witnesses in the proceedings he was asked to offer a commentary on what was visible in the films. To a very great extent his evidence on these matters was uncontroversial (and perhaps, unnecessary). In some respects, for example when he spoke of the observed engine manifold pressure supporting his characterisation of the figure of eight manoeuvre not being a wing over^[3] (the description used by Mr Quadrio) he was demonstrated to be in error^[4].
27. But we are, nonetheless, satisfied that we can act upon the factual components of Mr Allwood’s evidence. We will discuss in more detail below the opinions he proffers about qualitative aspects of the flying.
28. Mr David Baddams is a very experienced military, fixed wing pilot albeit with some little experience as a helicopter pilot. Mr Quadrio relied upon Mr Baddams’ interpretation of what appears in disc E in relation to the observable angle of bank and the presence or absence of “G” forces. As to the former, Mr Baddams accepted that he should defer to the expertise of Mr Ringrose; as to the latter he observed that there is no evidence of G forces at work displayed in disc E. Mr Baddams also offered some commentary on the question whether the flight was aerobatic and the nature of the figure of eight manoeuvre, in particular, whether it was a wing over. We will deal with these questions when we discuss our observations of, and conclusions to be drawn from, the films.
29. Mr Quadrio relied upon evidence from Mr Dick, a helicopter pilot of considerable experience. We do not doubt the genuineness of Mr Dick however confidence in our ability to rely upon Mr Dick’s evidence was eroded when he transposed north and south in a diagram by which he sought to describe the flight path. Moreover, his first diagram of the flight path is, with all due respect, far removed from that which is plainly observed in the films. We do not think that we are able to place any great weight on the opinions expressed by Mr Dick.
30. Mr Malcolm Walker is a flying operations inspector employed by the Authority with vast experience in military and civilian flying and in excess of 10,000 hours in helicopters. He also offered his perspective on what appears in the films as well as his conclusions about the content of a pilot’s duty under CAR 224. As with Mr Allwood and Mr Baddams we will discuss his opinions when considering the conclusions we draw from watching the films.
31. We observe, finally, that in our view the best evidence of the flight and what was good or bad about it emerges from the films which we watched countless times during and since the hearing. There is undoubtedly a very minor degree of what Mr Ringrose described as radial distortion. Neither party suggested that we were not in as good a position as any of the witnesses to reach conclusions about the nature of the flying depicted in the films, aided by the unchallenged conclusions of Mr Ringrose about the degree of bank. Thus we propose to reach our own conclusions, assisted by the views offered by Mr Allwood, Mr Baddams and Mr Walker.

SOME IRRELEVANT MATTERS

32. We ought dispose of some matters raised by the parties that we regard as either irrelevant or of no assistance.
33. Mr Glynn, the solicitor for Mr Quadrio, made much of the absence from the s 37 documents of some material that might be regarded as favourable to Mr Quadrio. It is not necessary for us to conclude whether the omission was intentional or mere oversight. Usually, in our experience, these matters arise from oversight. It is enough to say that the fact of the omission demonstrates no more than that the Authority ought be reminded by these proceedings of the need for scrupulous care to be taken to ensure that all documents relevant to the review of a decision must be included in the s 37 documents. As this case demonstrates, the absence of sufficient care can lead to unnecessary and unhelpful suspicion.
34. Next we note that Mr Quadrio seeks to draw some comfort from the fact that the Authority did not call evidence from a flying operations inspector whose statement was in the s 37 documents. Without more it might have been possible to suggest that an inference, adverse to the Authority, ought be drawn from the failure to call that officer. But there was more. First, Mr Glynn elicited in cross-examination that the officer had left the employ of the Authority to care for a seriously ill relative. That, we think, provides an adequate explanation for the absence of the witness and thus we would not draw any adverse inference from the witness’ absence. But in any event, there is no need to draw inferences about the evidence the witness might give if called; there is a statement of the witness, sworn for the purposes of being used in criminal proceedings, in the s 37 documents. Finally we note that the witness’ evidence is in the same vein as that of Mr Allwood and Mr Walker. It was, we think, quite unnecessary for the Authority to call yet another witness to give evidence on matters where ultimately we must form our own judgment.
35. But equally we reject the Authority’s reliance on the opinion of the absent witnesses^[5] in support of the proposition that Mr Quadrio engaged in “aerobatic flight manoeuvres”. The statement was within the s 37 documents which were tendered, however, as was noted at the time of tender,

“...they will be evidence of the truth of their contents only to the extent that they become so in the course of the proceeding”.^[6]

Absent the witness swearing or affirming the correctness of the contents of the statement it was no more than a document that was before the primary decision maker.

36. The same is true of the Authority’s reliance upon the statement of Mr Coglan’s companion^[7]. If the Authority wished to rely upon that statement as evidence of the truth of its contents it was bound to call the witness to permit Mr Quadrio to cross-examine the witness. Whilst the Tribunal is not bound by the rules of evidence, reliance on a statement of a witness, not called in the proceedings and whose absence is not explained, would deny procedural fairness to the other party.

THE APPLICANT’S FLYING – OUR VIEWS

37. The Authority’s submissions approach the subject of Mr Quadrio’s flying under the headings “low flying”, “aerobatic flight contrary to flight manual”, “reckless operation of the aircraft” and “unsafe operation”. It is convenient to examine the flying by reference to the same labels.

LOW FLYING

38. The general rule in CAR 157 (1) is that the pilot in command of an aircraft must not fly the aircraft in an area outside populated areas at a height lower than 500 feet. That height, in the case of a helicopter, is the height “above the highest point of the terrain, and any object within it” within a radius of 300m of the helicopter. CAR 157(4) lists a series of exceptions to the general rule including, relevantly,

“(4) Subregulation (1) does not apply if:

(a) through stress of weather or any other unavoidable cause it

is essential that a lower height be maintained; or

...

(e) the aircraft is flying in the course of actually taking-off or

landing at an aerodrome...”

39. It is clear from the films that there were considerable times when HTE was below 500 feet. That which concerns us is in disc C and disc E. Other points where the helicopter appears to be below 500 feet could well be in the course of take-off and gaining an appropriate height.
40. Disc C commences with HTE flying fairly slowing across the main part of the reef tracking what appears to be either a turtle or ray at what seems to be a low altitude. That impression of a low altitude is confirmed at 20 seconds into the film when the controls became visible. They show an altimeter reading of approximately 60 feet and an airspeed in the order of 20 knots. At 47 seconds the altitude appears to be about 100 feet although the airspeed has increased considerably. There is a further period around 67 seconds where HTE is virtually stationary at a height we would estimate to be no more than 100 feet. This height is maintained to the end of the film at 72 seconds.
41. The result is that film C demonstrates that for the entirety of the 72 second duration of the film Mr Quadrio was below, and significantly below, the minimum height of 500 feet.
42. But it is not the altitude alone that is concerning. It is the nature of helicopters that the manufacturer produces a height/velocity diagram that prescribes minimum height at particular speeds. Thus, for example, the Robinson R44 ought not be stationary below 400 feet, and it should not be below 200 feet under 45 knots. Mr Allwood explained the practical reason for the restriction rather well. He said:

“Why is that, in a practical sense?That’s to ensure that in the event that the aircraft suffers an engine failure, it can be safely – or entered into an autorotation and brought back to the ground in a safe manner.

And can you perhaps just explain what you mean by an “autorotation”?An autorotation – in a helicopter in flight – when it’s in powered flight, the airflow is running in from the top through the rotors downwards like that because the rotor is biting the air and pushing it down. Auto-rotator flight: when the engine stops, the airflow reverses and goes up through the rotor – that’s what keeps the rotors turning – and allows the aircraft to continue a flight to the ground and where it can be landed safely. There is a transition time between powered flight and unpowered flight where that airflow has to be reversed from coming down; the airflow going back up through the helicopter – through the rotor blades – and at that – until that point of time, the aircraft is not an auto-rotator flight. And there’s a transition area there. And the idea of this onflow ... – and it’s very narrow up until the aircraft reaches 50 knots – is to ensure there was enough time and/or height that you can actually trade off that forward speed. If you’ve got enough forward speed and you’re still at low altitude, you can flare the aircraft like that. That will then return the airflow to come up through the rotor – this – rather than come down. And he can then – once you’ve got auto-rotator flights, you can lower the nose and pull the rest of the collective on and lower the aircraft to the ground. If you haven’t got time to get that airflow reversed through that rotor disk, and you haven’t got enough height or air speed to trade off, it’s going to end up in tears.”

43. For a considerable time in disc C, HTE was flown at heights and speeds that were contrary to the manufacturer’s recommendations. Had there been a catastrophic failure Mr Quadrio would have been unlikely to have been able to prevent an uncontrolled, and uncontrollable, descent.
44. Mr Quadrio however argues that he cannot have breached CAR 157 because it can have no operation over water. That is so, he says, because of the reference in CAR 157(3) to “terrain”. Terrain, he says, means “an area of ground” or “a tract of land” and cannot encompass the surface of the ocean.
45. We do not consider that terrain ought be viewed so narrowly both as a matter of ordinary use of language and, in particular, from the manner in which the word is used within the Act and the CAR. The various dictionary definitions in the Authority’s submissions in reply demonstrate that it is to be viewed as encompassing all of the areas, sea as well as land, over which an aircraft might travel. The best example is the example of “air route” in s 3 of the Act as being,

“the navigable airspace between two points and the terrain beneath such airspace...”

46. It is, with respect, absurd to think that the legislative scheme was intended to have the effect that aircraft were to be subject to no minimum altitudes above water. The evident purpose of CAR 157 is to prescribe a safe separation between aircraft and the areas over which an aircraft is flying in order to avoid contact between the aircraft and that area. Contact between an aircraft and the surface of the water is likely to be no less catastrophic than unintended contact with the ground.
47. Those with the responsibility for prosecuting the criminal charges may well have been of the view that terrain did not encompass the water. If that was the view expressed we respectfully disagree with it.
48. Mr Quadrio sought to explain the low flying in disc C as a “traffic clearing measure”. There is not a scintilla of evidence to support that. On the contrary disc C leads us to conclude that Mr Quadrio flew close to the water, even to the extent of following a sea creature, for the purpose of entertaining his passengers. It is not to the point that Mr Quadrio has a low flying endorsement and has been trained in low flying operations. CAR 157 and the manufacturer’s guidelines both say that Mr Quadrio ought not to have flown as he did.
49. We add for completeness that we reject Mr Dick’s evidence that HTE was at a height of 10 feet to 25 feet at times in film C and thus within the manufacture’s recommended height/velocity ratio.

AEROBATIC FLIGHT CONTRARY TO THE FLIGHT MANUAL

50. The R44 flight manual contains a section headed “Flight and Manoeuvre Limitations” which prohibits aerobatic flight. There is, as well, a caution in these terms,

“Avoid abrupt control inputs. They produce high fatigue stressors and could lead to a premature and catastrophic failure of a critical component.”

51. The Authority points to CAR 138 (1) and CAR 155(1)(c). The former requires the pilot in command to,

“...comply with a requirement, instruction, procedure or limitation concerning the operation of the aircraft that is set out in the [flight] manual.”

The latter prohibits flying aircraft in a particular kind of aerobatic flight if the flight manual does not specify that the aircraft may perform that kind of aerobatic flight.

52. The expression “aerobatic flight” is defined in CAR 2 as meaning,

“...manoeuvres intentionally performed by an aircraft involving an abrupt change in its attitude, or an abnormal attitude, or an abnormal variation in speed.”

The Authority points to the opinion of Mr Allwood that the flying shown in disc E amounted to the conduct of aerobatic manoeuvres.

53. In our view this particular complaint is not made good. The prohibition is not on aerobatic manoeuvres as such, it is on such manoeuvres either contrary to the flight manual or not permitted by the flight manual. Here the evidence is that a representative of the manufacturer appears to have viewed the film and was unconcerned by what was shown in it. We infer that the manufacturer’s representative did not regard that which was depicted to be contrary to the flight manual. Whether that flying is otherwise safe or appropriate is an entirely different question.

RECKLESS OPERATION OF THE AIRCRAFT

54. Subsection 20A(1) of the Act provides,

“A person must not operate an aircraft being reckless as to whether the manner of operation could endanger the life of another person.”

The Authority submits that the flying of HTE on 28 September 2008,

“...involved the taking of unnecessary risks with the safety of the passengers on the flight. The Tribunal would therefore be satisfied that [Mr Quadrio] operated the aircraft in a manner reckless as to whether his conduct could endanger the lives of his passengers and thus contravened s 20A of [the Act].”

It identifies four manoeuvres:

(a) a sharp descent causing negative gravity forces to be felt by the passengers;
(b) very steep turns in excess of 60° angle of bank at altitudes of 200 feet on less;
(c) “buzzing” the Osprey V on more than one occasion at a height of between 20 and 100 feet above the sea;
(d) hovering at an unsafe height.

The first three are the manoeuvres depicted in disc E, the last that in disc C.

55. In our view the assertion regarding negative G forces cannot be accepted and, in any event, takes the matter nowhere. Mr Coglan referred to feeling the effects of negative G forces in a manoeuvre after inspecting the turtle. He said,

“Then we went up again fairly high and he dropped a bit and I felt the G’s which felt really good”.

He did not otherwise refer to G’s in his statement. In cross-examination he added the observation that he felt G force when HTE banked i.e. during the figure of eight manoeuvre, a feeling which he described as “pretty cool”.

56. The incident when the helicopter “dropped a bit” appears not to have been filmed. Our reservations regarding Mr Coglan’s evidence and the absence of any evidence that Mr Coglan has sufficient experience to be able to give meaningful evidence on the topic lead us to conclude that we are not satisfied that a manoeuvre of the nature identified took place.
57. For similar reasons we are not satisfied that there were two incidents in which HTE flew close by Osprey V. Mr Coglan was quite vague on whether there was one or two passes and only one is depicted in the film. We will proceed on the footing that there was only one flight past the Osprey V.
58. That flight, and its aftermath, is well depicted in disc E. That film starts with HTE banking quite steeply in a position to the southeast of the Osprey V, following the edge of the reef and then passing to the north of the bow of the Osprey V before passing along the port side of the vessel. We see nothing unusual about this passage of flight. It is certainly below 500 feet however HTE was in the process of landing. Moreover we do not regard the manoeuvre as “buzzing” the boat.
59. What occurs thereafter is however an entirely different matter.
60. Had Mr Quadrio, having passed the Osprey V, proceeded to land on the pontoon that part of the flight might have been unremarkable. But he did not. He put HTE into two very steep turns and at a very low altitude. We entirely reject Mr Quadrio’s reconstructed excuse for this manoeuvre. As we have said the audible and visual evidence from the film shows no sign of the emergence of any sudden threat. To the contrary what emerges from disc E is that Mr Coglan, at least, regarded the manoeuvre as “awesome”, a comment that plainly enough indicates that he regarded the manoeuvre as entertainment, not necessity. The absence of any hint on the film that Mr Quadrio regarded the turns as a necessity for safety and our own viewing of the film lead us to be well satisfied that Mr Quadrio flew in that manner for the purpose of entertaining his passengers.
61. It was unsafe to do so.
62. The turns were at a degree of bank in the order of 70°, they were undertaken at heights in the order of 150 to 200 feet and they involved abrupt changes in the altitude of HTE.
63. The dangers are self-evident. At the height at which the flight was operating there was simply no margin for anything to go wrong. In flying in that manner Mr Quadrio put his life and that of his passengers at risk. Mr Quadrio, in our opinion, operated HTE in a reckless manner that had the result that the lives of his passengers were endangered when he flew the figure of eight manoeuvre. We are, however, not satisfied that the low flying in disc C amounted to reckless flying; it was unsafe and unwise but we do not consider that it had the potential to endanger the lives of the passengers.

UNSAFE OPERATION

64. This final matter adds nothing to the content of Mr Quadrio’s errors, rather it points to the conclusion that those errors breached the duty imposed on a pilot in command by CAR 224 (2)(b)^[8] set out in paragraph [6] above.

WAS THERE A FAILURE OF DUTY?

65. The discretion in CAR 269 to vary, suspend or cancel a licence is enlivened when, relevantly for present purposes, the Authority (or Tribunal) is satisfied that the licence holder “...has failed in his or her duty with respect to any matter affecting the safe...operation of an aircraft”.
66. As we hope we have made plain we are satisfied that Mr Quadrio did fail in his duty. He did so,

(a) by flying for a lengthy period of time well below the permitted minimum (disc C);

(b) by flying at a height and speed outside the manufacturer’s recommendations (disc C);

(c) by undertaking a figure of eight manoeuvre, and undertaking it at a height, that was unnecessary and dangerous and which was undertaken purely for the entertainment of his passengers (disc E).

A FIT AND PROPER PERSON?

67. It is, of course, to be remembered that in considering the issue of a fit and proper person it is unwise to attempt to define the matters that may be legitimately enquired into; each case must depend upon its own circumstances: see Hughes and Vale Pty Ltd v New South Wales (No 2)^[9]. But in the present context it is possible to say that a fit and proper pilot is one who has an appreciation of the statutory responsibilities and one who discharges them: Australian Broadcasting Tribunal v Bond^[10]. In Re Taylor and Department of Transport^[11] the Tribunal was considering reg 258 of the Air Navigation Regulations, the statutory precursor to reg 269 of the Civil Aviation Regulations and relevantly identical to it. The Tribunal said^[12],

“In the context of reg 258(1)(d), the enquiry whether the applicant is a ‘fit and proper person’ is directly focused upon the fitness and the propriety of the applicant exercising the ‘responsibilities’ and performing the ‘functions’ and ‘duties’ of the holder of a licence – in this case a commercial pilot licence. It is not simply a question of competence to fly an aircraft which the Secretary must consider for this purpose.
In our view, what the regulation requires is a consideration of the applicant's conduct measured against the responsibilities, functions and duties of the holder of a commercial pilot licence as they emerge from the provisions of the Air Navigation Regulations. Whilst it would be inappropriate to endeavour to catalogue those responsibilities, functions and duties in any exhaustive fashion, it is clear that they include observing the interests of the safety of air navigation – not only the interests of pilots, passengers and the owners of aircraft, but also the interests of the public at large.”

68. That passage has been applied in many subsequent decisions of the Tribunal: see e.g. Re Griffiths and Civil Aviation Authority^[13]. In our view it is appropriate to apply it in the present case.
69. In determining whether Mr Quadrio is a fit and proper person we are not concerned to enquire into Mr Quadrio’s competence. On the evidence it would appear that Mr Quadrio is a technically competent pilot. Nor are we limited to considering only the events of 28 September 2008. Whether Mr Quadrio is a fit and proper person falls to be considered, as well, by reference to his subsequent conduct, in particular his present attitude to the conduct of 28 September 2008.
70. The conduct of 28 September 2008, we think, demonstrates that Mr Quadrio was prepared to disregard the requirements of safety to satisfy a need to entertain the passengers. It is not open to a pilot, a fortiori a commercial pilot, to determine which rules ought be obeyed. And it is not open to a pilot to ignore the manufacturer’s recommendations regarding performance. We need not recite the findings that we have already made. They satisfy us that Mr Quadrio was not a fit and proper person.
71. And that conclusion is fortified by Mr Quadrio’s subsequent actions. We do not intend to include in that Mr Quadrio’s initial denial of being the pilot in charge of HTE on 28 September 2008. As we have said criminal proceedings had been threatened. Mr Quadrio was not obliged to provide any evidence that might tend to incriminate him. The Authority points to no duty that obliged him to assist the Authority to prosecute him or to take steps to cancel his licence.
72. We are more concerned that Mr Quadrio, from the outset and during the hearing, professed no recollection of the flight and advanced a patently risable story to account for his flying on that day. Two things flow from that. The first concerns Mr Quadrio’s state of recollection. The fact that the Authority was taking an interest in this flight came to Mr Quadrio’s attention on 18 December 2008. When he was shown the YouTube clip of the flight he agreed that he “probably” had been the pilot. We find it impossible to accept that Mr Quadrio is truthful when he asserts that he had no recollection of the flight when the details of it were drawn to his attention, and he viewed a film of part of the flight, less than two months after the flight. That assertion is simply not believable^[14].
73. The second aspect concerns Mr Quadrio’s suggested explanation for the manoeuvres shown in the film. As we have said we regard those explanations as risable. They have been conjured up to avoid Mr Quadrio confronting the reality that his flying on 28 September 2008 fell well below the standard expected of a commercial pilot. But Mr Quadrio’s inability or unwillingness to acknowledge his demonstrated shortcomings only reinforces our view that he is not a fit and proper person to have the responsibilities and to exercise and perform the functions and duties of a commercial pilot.
74. It is undoubtedly the case that pilots will from time to time, fall into error. In our view a pilot who does so and who has a proper appreciation of the importance of air safety will acknowledge the error and reflect upon it in order to prevent a recurrence^[15]. Mr Quadrio had done none of that. On the contrary he sees himself as the persecuted victim of an “overly protected bureaucracy”^[16].
75. In circumstances where we are satisfied that each of the matters in paragraphs (c) and (d) of CAR 269(1) exist the discretion to vary, suspend or cancel Mr Quadrio’s commercial pilot’s licence is enlivened. But given the factual conclusion we have reached we consider that cancellation of the licence is the only apt outcome. We will then affirm the decision.
76. We acknowledge that the decision and its affirmation have imposed great cost and hardship upon Mr Quadrio and his family. And he has been put to expense, no doubt considerable expense, in resisting the criminal proceeding. But these matters cannot transcend the overarching obligation to have regard to the safety of air navigation. They cannot overcome our conclusion that Mr Quadrio is not a fit and proper person.
77. By all accounts Mr Quadrio is a technically competent and skilful pilot. We do not doubt that he will, in due course, be able to demonstrate to the Authority that he possesses both the technical skills and the appropriate regard for safety to satisfy it that he is again a fit and proper person and will regain his commercial pilot’s licence.
78. We want, finally, to comment on a suggestion that emerged in the evidence of Mr Dick that there is an expectation on the part of passengers in reef flights that they will be entertained by this type of flying. If there is such an expectation and if it is being satisfied by pilots engaging in unsafe practices the Authority ought take steps to promptly stamp it out. Much worse things can happen to an unsafe pilot and passengers than that the pilot lose a licence. That is to be preferred to losing a life.

I certify that the 78 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President P E Hack SC and Air Vice Marshal Frank Cox

Signed: ............Signed........................................................

Associate

Dates of hearing 14, 15 & 16 June 2011

Date of last written submissions 16 August 2011

Date of decision 12 October 2011

Solicitors for the applicant McMahon Broadhurst Glynn

Counsel for the respondent Mr BJA Shields

Solicitors for the respondent CASA Legal Branch

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^[1] Civil Aviation Act 1988 (Cth), s 9A

^[2] Mr Coglan appears to have been the source of the error about location.

^[3] Transcript, 15 June 2011, p. 106 lines 19-30

^[4] Transcript, 16 June 2011, p 10 lines 5 – p 11. line 30

^[5] Respondent’s outline of submission, paragraphs 35 and 70
^[6] Transcript 14 June 2011, p 6 lines 25-30. See also transcript 15 June 2011, p 66 lines 47-48.
^[7] Submissions, paragraph 73.

^[8] The reference in paragraph 76 of the Authority’s submission to CAR 224(1)(b) is an obvious typographical error.

^[9] [1955] HCA 28; (1955) 93 CLR 127 at 157.

^[10] [1990] HCA 33; (1990) 170 CLR 321 at 349.

^[11] (1978) 1 ALD 312.

^[12] At page 321.

^[13] (1994) 34 ALD 554.

^[14] We should note that there is nothing in the Authority’s argument that the cross-examination of Mr Coglan by Mr Glynn demonstrates that Mr Quadrio must have had some recall of the flight. The “detail” which the Authority relies upon is in Mr Coglan’s statement: Authority’s submissions paragraph 81.

^[15] Cf Re Nichols and Civil Aviation Safety Authority [2009] AATA 646 at [62].
^[16] See exhibit 6.