[Kharon]

Ah yes; I remember it well.

I can never read the first paragraph of the McComic mission statement without going back to the darkest of times when anything and everything was countenanced; provided the preordained result was achieved.  

Adherence to CASA’s authoriszed policies will almost always produce an appropriate decision. As said, however, from time to time there will be circumstances in which the strict application of policy may not result in the “preferable” decision. In these cases it may be appropriate (and possibly necessary) to depart from otherwise applicable policy.

And wasn’t that taken literally; open season on industry and a chapter of shame in the long, bloody history of our ‘regulator’. The simple fact that whatsisname – Skidmoron – failed to sign it; the shrine to McComic preserved in it’s original vile state and still active. What chance does the good Rev. Forsyth’s R 37 stand against such engineered intent to never, ever change anything CASA does. They are addicted to the untrammelled power built into every comma, full stop and wriggle room paragraph, used to justify the truly disgraceful behaviour of some of their crew.

The entire aviation world, let alone Australia should be demanding the immediate breakup of the E&EC; simply for the sake of clarity. The ICC and the Board should hold the power to decide whether the actions of CASA personnel have been righteous. Those decisions need to made available to interested parties, not buried in some secret archive kept deeply hidden within the bowels of the organisation.  Those decisions made by the clandestine E&EC could serve all manner of questionable practice and due to the secretive nature of process, the odd whiff of rank corruption could be suspected.

The McComic statement, tacitly supported by Skidmoron stands as testament to the absolute determination of the ‘iron wrong’ to persist in their quest for unlimited power, under black letter law, with strict liability and the power of ruling ‘at their discretion’, to their satisfaction.  That, and the ability to protect and succour the hand picked willing accomplices who support the tenet and perform the allotted tasks needs immediate eradication, with malice aforethought.  

Aye, embuggerance, without hindrance is a fine thing for those dishing it out. A ‘selfie’ of DDDD Chester tearing up the McComic version of ‘enforcement’ would go a long, long way toward resolving the problems of the industry he feels he is not responsible for.

Toot – rant over – toot. Feel much better now.

[Peetwo]

FF cornered rats are biting back -

With the exit of Skidmore from Aviation House, the rumour is that with a sinking, rudderless ship the remaining rats are cornered and are lashing out at industry Alphabet groups and anyone who dares to criticise CASA.

The following is perhaps an example of how nasty, vindictive and petty these vermin can be now they are cornered

A tweet from CASA was intercepted earlier today by Phil Hurst CEO of the AAAA's:

---

Now why on earth would the Fort Fumble twitter guy feel the need to tweep such inflammatory bollocks, especially when you consider the date of the ATSB MR (16 September) and the paragraph before, the CASA stated statistics, had a much more positive message:

Wirestrike accidents ongoing concern in aerial application

The Australian Transport Safety Bureau says pilots continue to collide with known wires in aerial application, including agricultural spraying, spreading and firefighting.


The ATSB’s Aerial application safety 2015–2016 year in review found wirestrike was the most common cause of accident and serious incidents in aerial application between May 2015 and April 2016.

Wirestrikes (where an aircraft hits a wire such as a powerline) caused 11 accidents and serious incidents in the 12 month period. Other types of accidents and serious incidents were engine failure or malfunction (6), collision with terrain (3), controlled flight into terrain (2) and runway excursion (2).

Most wirestrikes involve wires that the pilot was already aware of. Often, they involve wires which the pilot has flown several times before that day.

With their flying operations very close to the ground, aerial application pilots are well aware of the dangers of wires. The ATSB says pilots need to know the location of wires in the area to be sprayed through maps, talking with land owners and locals, and through aerial reconnaissance before operations commence.

Spraying patterns need to be organised with the wire locations in mind, and pilots need to maintain focus during their flying task, and use continuous reminders of the presence of wires. When plans change or the spray pattern differs such as for clean-up runs, pilots need to redo their aerial reconnaissance of wires.

Although there has been a slight growth in the number of accidents over the past three years, there were considerably fewer accidents each year in the past decade than in the previous 25 years.

Aerial agriculture has the second highest accident rate per million hours flown across the operation types, behind non-VH-registered recreational aeroplanes.

Aerial application operations are inherently risky, involving low-level flying, high workloads and obstacles such as power lines and uneven terrain.

Read the ATSB research report (AR-2016-022) Aerial application safety 2015-2016 year in review

    
It is also worth reflecting on the following AP posts from the SMH thread, which clearly show that Phil Hurst & AAAA, in partnership with the ATSB are not being complacent and are being clearly proactive in addressing these safety issues:

...Moving on and I note another 'good news' story coming out of the ATSB, that again does not include the Grandstanding Beaker...hurrah to that!

Media release

Title

Report to educate aerial agriculture and firefighting pilots
 
Date: 10 July 2015
As aerial agriculture pilots prepare for an early spring start to their busiest time of year, a new ATSB report highlights past aviation safety events in the industry.

ATSB's Manager Reporting and Analysis, Dr Stuart Godley said, 'ATSB has been working closely with the Aerial Agricultural Association of Australia (AAAA) to strengthen their long-standing education and training program by using reported incidents and ATSB investigations to identify key learning opportunities for pilots.

'The statistics clearly identify a long term trend in improving safety in the sector, but both ATSB and AAAA remain committed to improving the safety record even further.

'These statistics should serve as a reminder of the risks these pilots will face during the season that are not present in most other types of flying. Hazards include low-level flying with high workloads and numerous obstacles, in particular powerlines and uneven terrain.

'The good news is that, while these risks are always present, they are generally manageable', said Dr Godley.

The report focuses on aerial application accidents between May 2014 and April 2015 to coincide with the agriculture season in most parts of Australia.

Dr Godley said, 'Wirestrike was the most prevalent type of occurrence with more than half of the total accidents and serious incidents involving a wirestrike'.

Mr Phil Hurst, CEO of the AAAA said, 'We approached ATSB with the idea of producing an annual statement of safety trends in the industry to support aerial application pilots in their ongoing professional development through AAAA’s comprehensive ‘Professional Pilot Program’ and training courses.
 
'This report is a very useful addition to the tools available to professional low level pilots and AAAA thanks ATSB for their practical response in improving access to the valuable safety data they hold.'

There were 13 accidents with one resulting in fatal injury in the preceding 12 months. In total, there were 24 reported accidents and incidents involving aerial agriculture and firefighting operations.

Read the report: Aerial application safety: 2014 to 2015 year in review

Media contact: contact ATSB on 1800 020 616 or Phil Hurst (AAAA) on 0427 622 430

Dr Godley again (see ABC PM transcript above), he seems to be making regular media appearances for the ATSB lately. He also (surprisingly) featured at last Estimates and IMO he made an excellent account of himself as well. See Kharon's post today here - Strange, but hardly surprising - or on the tail end of this Estimates clip:

Accolades to Stuart Godley (on behalf of the ATSB) & Phil Hurst (representing the AAAA) for an excellent proactive initiative - & no muppets or CASA in sight...

Gold stars and no Muppet = Bliss.

P2 – “Accolades to Stuart Godley (on behalf of the ATSB) & Phil Hurst (representing the AAAA) for an excellent proactive initiative - & no muppets or CASA in sight.”

I think we must go a couple of steps beyond ‘accolades’.  Young Mr. Godley is shaping up as ‘old school’ ATSB and deserves some well earned praise as a bright spot in a dull, drab firmament of endless grey.  He stood his ground very well in Estimates, seems to have a firm grip of his subject and is unafraid to admit to ‘weakness’ in system or method.  Bravo – and thank you for restoring a little faith.

Mr Phil Hurst, CEO of the AAAA said, 'We approached ATSB with the idea of producing an annual statement of safety trends in the industry to support aerial application pilots in their ongoing professional development through AAAA’s comprehensive ‘Professional Pilot Program’ and training courses. 

Phil Hurst and his crew are consummate professionals, doing a job CASA should be assisting with by developing a tailor made PPP, based on real experience and mitigating the risks they know exist with common sense and good guidance.  The notion to bring in the ATSB was brilliant and once again, Mr. Godley has done the ATSB proud.  This sort of collaboration and cooperation should be made the benchmark for future exercises. Industry expertise combined with specialised ATSB knowledge with one purpose; reducing the risk that someone may not get to the Friday arvo BBQ.  

'This report is a very useful addition to the tools available to professional low level pilots and AAAA thanks ATSB for their practical response in improving access to the valuable safety data they hold.'

It’s so bloody nice to be able to find a positive step, in the right direction, I’m going to be smiling all day now.  Well done Phil, AAAA and Mr Godley; well done indeed.... .... ........ ........ ......... ........... ......

Hmmm....'handing over' Ferryman -


MTF....P2

[P7_TOM]

Whoops- sorry mate.

Thorn bird Wrote:

As reported on the ABC it would seem "The noble Art of Embuggerance" has had the desired effect.

Another casualty of CAsA's determination to stamp out whatever is left of the Aviation Industry, Jabiru is closing its engine manufacturing shop.

The embuggerance continues with an operator from the far north, who had the temerity to complain of their treatment, is now faced with a hostile Audit, and we all know where that is headed.

Dick Smith is again proved right, get out of the industry while you still have a shirt left.

[Kharon]

Jeepers, Tweepers.

P2 – “Now why on earth would the Fort Fumble twitter guy feel the need to tweep such inflammatory bollocks, etc.”

It is indeed a strange ‘tweep’ (tweep?) quite apart from being a statement of the blinding obvious.  Crop dusting, Firefighting and even Police low level operations are ‘high’ risk occupations; but and it is a very big BUT, the defences and risk mitigation which have been developed and the ‘new’ work to done to further reduce those risk are more current and proactive than in any other application of using aircraft. Flight schools for example have not provided the level of ‘direct involvement’ and engagement that AAAA has. Not knocking Flight schools; but they tend to let CASA set the bar and plod along with ‘whatever’ is served up. AAAA is a very different animal.

The ‘tweep’ is posed as a question – “Did you know etc.?”  Well; duck me, I’d reckon the majority of the worlds population understand that the types of essential work, conducted at ‘low level’ are ‘risky’. What the world probably does not know is the amount of effort, expertise and experience which is unstintingly poured into mitigating those risks. So, it begs the question – why not tell the ‘twitterverse’ about those efforts?

Maybe P2 has the right of it – corner a rat and it will fight, if it can’t fly.  There have been some ‘meetings’ and ‘negotiations’ between industry and CASA; word has filtered back that those meetings, although conducted in good spirit, have been another waste of wind, time and energy. The unspoken and IMO sinister aspect of that result being that the opposition have now seen your cards. This may be a good thing – if the intent to reform is genuine. Sadly past and present history show that the intent to reform is not there; not from the appointment of Boyd to the resignation of Skidmore. Lots of window dressing, lots of PR and more fluffing than a porn studio.

The crazy thing is CASA have not got a leg to stand on; Phil Hurst and the AAAA, backed by ATSB can gut ‘em. So why start what they can’t finish – unless the miniscule and Board are prepared to back the CASA non action and are actively supporting the ‘delays’?  Any and all risk mitigation, education and safety innovations will come from the AAAA expertise; not CASA.  

Perhaps the ‘tweep’ is the lead up to justification for CASA knocking back the latest AAAA initiative’s; building a case to support the embuggerance of a noisy annoyance.  Why else bother with a ‘tweep’ which could be construed as ‘inflammatory’?  Aye: perhaps the jackets are off, the talking done; and, the combatants are headed for the car park – to sort it out.  But, be warned; if the hair pulling and name calling comes out of the ladies loo into the car park – Phil Hurst and AAAA will be on the tote board at very short odds; very short indeed.

We shall see. Meanwhile:-

Toot – toot.

[Sandy Reith]

Flabbergasted, the tweet by a twerp takes the cake. I've been of the opinion that our argument is often too personal and the invective is over the top, understandable but still too far past polite. I'm changing my mind, or moving the posts. This tweet or whatever the hell from CASA, I'm presuming it is genuine, is flabbergasting. Tell me it's not true please. If it is a genuine public statement by CASA then this body is definitely totally out of control. I'd hate to be Jeff Boyd. Pinch me, it can't be real, can it?

New lows plumbed? Amazing.

[Peetwo]

Flabbergasted, the tweet by a twerp takes the cake. I've been of the opinion that our argument is often too personal and the invective is over the top, understandable but still too far past polite. I'm changing my mind, or moving the posts. This tweet or whatever the hell from CASA, I'm presuming it is genuine, is flabbergasting. Tell me it's not true please. If it is a genuine public statement by CASA then this body is definitely totally out of control. I'd hate to be Jeff Boyd. Pinch me, it can't be real, can it?

New lows plumbed? Amazing.

Sandy here is a link that should take you to offending tweet...

https://twitter.com/CASABriefing/status/...0577021952

P2 -

[Gobbledock]

Hello McCAsA anybody home?

I think the tweep was great! Why? Because it shows exactly how out of touch CAsA is with the real aviation world. It shows exactly why the public and the Ministers should not hold confidence in a single word they utter. It shows exactly why they have served their used-by-date and should be 'dismantled until not a stone remain unturned'.

I know of A380 Captains who have the utmost respect for Ag pilots. If most people only knew what these guys did for a living, and the level of risk involved, they would realise that, yes, indeed there is a good reason why more Ag pilots have been killed historically rather than A320 pilots sitting on their arses at the stop bars at Mascot.

There is also more risk for a SAS officer stationed in Kabul than there is for a tubby stores clerk at Lavarack Barracks. Just do the maths.

The pathetic tweep was no doubt issued by some inutile overweight document controller who has piles from sitting on his fat arse and poor eyesight from reading size 8 font in the regulatory manuals and from trying to search our where his wiener is. The tweep should be relegated to the tidy-bin along with every other piece of excreta they promulgate.

"Spineless hits below the belt for all"

[Kharon]

The twerp-tweep which puzzles.

ATSB - “Although there has been a slight growth in the number of accidents over the past three years, there were considerably fewer accidents each year in the past decade than in the previous 25 years.”

Just trying to puzzle out why ‘that’ CASA tweet turned up, when it did. I wonder if this is the beginning of a ‘hardening’ of attitude; Chester is bragging and posturing about our ‘great success’ at the latest ICAO gabfest.  There are other small indications that the iron fist, hidden within the artificial velvet Skidmore glove is about to reappear. As the man once said “when you have ‘em by the balls; hearts and minds will follow”.

There’s the rub; operators, particularly in the small to middle range know that CASA have their nuts in a vise.  The ever present threat of a ‘special’ audit; the delay on an approval; faux ‘difficulties’ or disliked drafting in an operations manual etc.; lots and lots of options for CASA to use, as crowd control. One veiled threat and the mouse that roared will scuttle back to its hole and tremble, wishing it had never popped out. You can’t really blame the operators for pulling their collective heads in – out of harms way.

That ‘tweep’ may well have been misconstrued – stand alone it seems innocuous, a little pointless even; or as the unlamented Wodger would say “unfortunate”. Now, had it been followed by another which ‘bragged’ that CASA and ATSB working with AAAA had been able to make improvements; then we could see real reform, happening in real time; and, cheer; loud and long.

So the choices; unfortunate; a call to arms; a failed ‘feel good’; a sinister veiled threat; or just another example of the CASA detachment from reality.

Don’t know and I ain’t certain I care a button. There was only ever the smallest hope that reform of CASA, as it stands, could actually happen without a reform DAS; one who actually can do the job.  Carmody will keep the ship afloat and pointed away from dangerous waters; but he will not, indeed he cannot control the rats down in the bilges. Is this ‘twerp-tweep’ the opening stanza of the Retribution sonata, played while the cats away? Pest control for safe skies – anyone.  

Toot – contemplative toot.

[Peetwo]

Attempted embuggerance & a Leopard's spots -

Reference quotes:

Following on from the recent additions from the Fort Fumble PR (retch ) machine...

Come on Wingnut you know KC speaks in plain English... Get rid of the witch doctor, employ Mike Smith ASAP to reform CASA; adopt either of the NZed or US plain English (easy to read & understand) regulations, then stand back and watch the accolades roll in for yourself, Murky and the minister, as the industry flourishes and contributes greatly to 'jobs, growth' and the Aussie GDP -

Dr Voodoo & Wodger on the fine art of spinning BS on RRP -

The following puff piece by FF almost perfectly highlights how completely out of touch with reality Dr Hoo-doo-yoo-doo-as-I-say and Wodger-week-as-piss is when it comes to first  World aviation regulation

Caution: BYOB will be required - }

How does anyone in their right mind expect us to believe in a witchdoctor who brought us over 4000 notified differences to ICAO SARPs and 100's of thousands of extra prescriptive pages of totally unreadable regulations for the better part of 3 decades? - UDB!

...it would appear that another 'Ghost who walks' from the Fort Fumble stables is quick to water down and obfuscate some of the less subservient members of the IOS and Alphabet Soups. Courtesy of the Yaffa.. :

..."CASA has consulted comprehensively with the aviation community on the introduction of ADS-B over more than nine years, including with AOPA," the statement says.

"It was agreed by aviation industry representatives, including AOPA, that ADS-B would be phased in over a three year period commencing in December 2013.

"AOPA wrote to CASA in 2012 and congratulated CASA on its consultation process for ADS-B implementation, including the mandate for all IFR aircraft to be fitted by February 2017.

"The recent changes announced by CASA to the ADS-B fitment deadline for private operations was a positive initiative developed in response to feedback from the general aviation community. CASA listened to this feedback and developed a package of changes that maintains operational safety while allowing more time for private IFR operators to fit the equipment.

"This initiative provides relief to private operators and will allow for the orderly fitment of the remaining IFR aircraft."

CASA also explained why the ADS-B deadline extension was limited to IFR aircraft operated in the private category only.

"The ADS-B extension does not include commercial operations as the fitment rate is already very high. Eighty-nine per cent of IFR flights are already conducted in ADS-B equipped aircraft, with this predicted to rise to 95% by February 2017.

"CASA thanks the many IFR operators and more than 300 VFR operators who have already fitted ADS-B and are reaping the safety and operational benefits of the equipment."

AOPA Australia has called on CASA to meet with them in Canberra next week to further discuss the issue...

Read more at http://www.australianflying.com.au/lates...g7DlUKh.99

From the CCC (Carmody & CAsA caper) above related stories this week, it would seem that Wingnut has issued some sort of edict to appear to be a sharing, caring, smaller "R" regulator in a typical cynical attempt to placate, prior to Xmas, certain sections of the IOS.

However the trouble is a Leopard can't change it's spots: a) As clearly highlighted by the Dr A - guru of totally unreadable & unusable big "R" 'strict liability' regulations - tongue in cheek performance in the spin & obfuscation FF PR video...   

..or; b) in the FF weasel words quoted by Oz Flying to cover up the fact that AOPA had been out-manoeuvred & whitewashed by a typical 'zero effect' exemption on the 2017 ADS-B mandate...

Which brings me to another classic example of how the more CASA profess they have embraced the findings and recommendations of the ASRR, the more evidence there is that they and the Department are merely paying lip service and playing for time (obfuscating) any real proactive actions on the ASRR..

Keeping in mind that Dr A has been demoted to manager of LSD, the following is a clear example of the lengths CAsA will still go, with malice & aforethought, when it comes to attempted embuggerances of small inconsequential individuals or businesses.

Reference from AAT: Bellamy and  Civil Aviation Safety Authority  [2016] AATA 956 (29 November 2016)

Quotes from Egon Fice decision...

1.Mr Michael Bellamy was the holder of a Private Pilot Licence – Aeroplane Category (PPL). That licence was issued to him on 13 August 2002. Mr Bellamy was also the registration holder of a McCulloch J2 gyroplane bearing the Australian registration mark VH-MBY.
2.On 16 July 2010 Mr Bellamy was conducting ground runs along runway 17/35 at Bendigo airport. On one of those runs he lost control of the aircraft which rolled over on its side causing the rotor to strike the runway and effectively destroy the aircraft. Mr Bellamy was unharmed.
3.After conducting an investigation into the accident, CASA initiated proceedings in the Bendigo Magistrates’ Court claiming that Mr Bellamy was in breach of s. 145.1 of the Criminal Code Act 1995 (the Criminal Code) which relevantly provides:

(1) A person commits an offence if:

(a) the person knows that a document is a false document and uses it with the intention of: (i) dishonestly inducing another person in another person’s capacity as a public official to accept it as genuine; and
(ii) if it is so accepted, dishonestly obtaining a gain, dishonestly causing a loss, or dishonestly influencing the exercise of public duty or function; and

(b) the capacity is a capacity as a Commonwealth public official.
Penalty: Imprisonment for 10 years.

4.Mr Bellamy was also charged with reckless operation of aircraft as described in s. 20A of the Civil Aviation Act 1988 (Civil Aviation Act). Section 20A provides:


Reckless operation of aircraft

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

(2) A person must not operate an aircraft being reckless as to whether the manner of operation could endanger the person or property of another person.

5.The second charge was in fact brought under s. 29 of the Civil Aviation Act which provides that the owner or operator of an aircraft commits an offence if he or she operates aircraft or permits aircraft to be operated and the operation of the aircraft results in contravention of s. 20A(1).

6.Mr Bellamy was found guilty of the false document offence but not guilty of reckless operation of an aircraft offence. Nevertheless, CASA issued Mr Bellamy with a show cause notice dated 15 July 2015, providing Mr Bellamy with the opportunity to respond. In a letter dated 16 March 2016 CASA informed Mr Bellamy that it had determined that he failed in his duty as the holder of a PPL and that he was not a fit and proper person to be the holder of a PPL. Accordingly, CASA cancelled his PPL.

7.On 22 March 2016 Mr Bellamy lodged an application with the Tribunal seeking review of CASA’s decision to cancel his PPL.

---

CONCLUSION

122.Despite Mr Bellamy having had a very unfortunate experience in his attempt at restoration and testing his J2 gyroplane, I have found that was no evidence upon which CASA can soundly base a suspension of his PPL. All of the difficulties which Mr Bellamy encountered, including his conviction in the Magistrates’ Court, stemmed from his gyroplane involvement. I had no evidence before me that similar circumstances would arise in the future as far as his fixed-wing operations are concerned. Mr Bellamy did not blatantly ignore the advice given to him by CASA and he appeared to have made significant attempts to comply with all legislative requirements as they existed at the time, which were not as clear as perhaps they could have been. I have found that he is a fit and proper person to hold the PPL – aeroplane.

123.I find that the decision made by CASA on 16 March 2016 cancelling Mr Bellamy’s
PPL– aeroplane was not the preferable decision. I set aside that decision. Therefore, Mr Bellamy’s PPL – aeroplane remains valid and should be treated as never having been cancelled. CASA’s records regarding Mr Bellamy should be amended accordingly...

This bit going to the definition of 'reckless operation of an aircraft' is IMO important in context of the Fice decision:

63.CASA’s action in the Magistrates’ Court included a charge said to be brought under s. 29(1)(a) of the Civil Aviation Act which deals with offences in relation to aircraft. The particular subsection relied on by CASA as set out in the prosecution report appears to be incorrect. Section 29(1)(a) must be read together with subsection (b)(i) or (ii). It provides:

(1) The owner, operator, hirer (not being the Crown) or pilot of an aircraft commits an offence if he or she:

(a) operates the aircraft or permits the aircraft to be operated; and
(b) the operation of the aircraft results in:

(i) the use by the aircraft of an aerodrome in contravention of conditions specified under section 20; or
(ii) the aircraft being flown or operated in contravention of a provision of this Part (other than subsection 20A(1) or 23 (1)), or of a direction given or condition imposed, under such a provision.


64.Section 29(2) provides that strict liability applies to offences set out in (1)(b)(i) and (ii). That means, as far as a criminal prosecution is concerned, intent plays no part in determining culpability. It is assessed objectively.

65.An offence may also be committed in circumstances where the owner, operator or pilot of an aircraft operates the aircraft or permits aircraft to be operated and the operation results in a contravention of s. 20A(1) of the Civil Aviation Act (s. 29 (3)).

66.Section 20A provides1) A person must not operate an aircraft being reckless as to whether the manner of operation could endanger the life of another person.
(2) A person must not operate an aircraft being reckless as to whether the manner of operation could endanger the person or property of another person.

67.This rather inelegantly phrased provision plainly has two limbs. The first is concerned with endangering the life of another person and the second is concerned with endangering the person, in the sense of the body of another person, or their property. The first limb, being a more serious offence, attracts a maximum penalty of 5 years imprisonment (s. 29(3)). The second limb, being less serious, attracts a maximum penalty of 2 years imprisonment (s. 29(1)).

68.It is also important to note that, having been charged under s. 29(1) of the Civil Aviation Act, Mr Bellamy could only have committed an offence if his operations of the J2 gyroplane offended the second limb of s. 20A, that is, endangering the body or property of another person. In other words, there was no claim that Mr Bellamy had endangered the life of another person.

69.The Magistrate dismissed the charge brought pursuant to s. 29(1) of the Civil Aviation Act. Nevertheless, the charge was noted in CASA’s Notice of Cancellation of Mr Bellamy’s PPL – aeroplane dated 16 March 2016. Despite the dismissal which, curiously, was referred to as a non-conviction of an offence, the notice of cancellation stated:

20. While you were not convicted of such an offence, I consider that your conduct on 16 July 2010 was also in breach of section 29(1) of the Civil Aviation Act 1988 (CAA), in that you were the owner, operator and pilot of the aircraft and the operation of the aircraft resulted in a contravention of section 20A(2) of the CAA, in that you operated the aircraft being reckless as to whether the manner of operation could endanger yourself or another person.


70.That statement is incorrect as a matter of law. A breach of s. 20A(2) of the Civil Aviation Act is not concerned with the operator endangering themselves. The expression the person in the second limb means the body of another person and is not a reference to the operator of the aircraft.

71.Further, with respect to CASA, this issue was tried by the Magistrate over a 10 day hearing period and the charge was dismissed. It is plainly incorrect and also inappropriate, in my respectful submission, for CASA to conclude that the operation of the aircraft on that occasion was reckless.

72.I appreciate that the standard of proof required to be established for conviction is different to that upon which CASA may act under reg. 269 of the CAR, the former requiring proof beyond reasonable doubt and the latter a finding on the balance of probabilities. Nevertheless, even on the lower standard of proof, CASA would have great difficulty in establishing a contravention of the Civil Aviation Act. CASA acknowledged this at paragraph 33 of its Notice of Cancellation. However, it relied on Mr Bellamy’s conduct in the course of his ground operations on 16 July 2010 for its finding that he failed in his duty as a PPL holder with respect to the safe navigation or operation of an aircraft
(reg. 269 (1)©) and that he was not a fit and proper person to be the holder of a PPL (reg. 269 (1) (d)).

73.Furthermore, CASA claimed Mr Bellamy’s reckless operation of the J2 gyroplane was conducted while he was not licensed to do so and that he knew of the dangers of such an action. As I have already pointed out above, while it is arguable that Mr Bellamy required a valid gyroplane pilot certificate to conduct those ground operations, that is not entirely clear. Given that Mr Bellamy relied significantly on AC 21.4(2) and in particular to the clauses in that document which state that a pilot must have a PPL with the appropriate endorsements to carry out initial flight testing on aircraft such as his, it also refers to the pilot conducting brake tests, engine operation and ground handling by conducting taxi tests before attempting flight operations. It does not suggest any qualification is required for those ground operations.

It is also worth reading paragraphs 74-98 (under 'Claimed inadvertent flight'):

89.Mr Cox also said in his witness statement that in his role as a Flying Operations Inspector, he had some experience as an accident investigator. He admitted he was not gyroplane qualified. He was asked by CASA to provide a safety comment regarding Mr Bellamy’s accident. Mr Cox did not indicate he had viewed the video.

90.Mr Cox was of the opinion that the activity conducted by Mr Bellamy on 16 July 2010 was high risk for the following reasons:
(b) Mr Bellamy probably had no experience at high-speed taxi and stopping operations with the J2 gyroplane;
© Mr Bellamy had no qualifications or evidence of competency on that aircraft type indicating an ability to recover from a high speed taxi situation where the main rotor was producing some lift;
(d) Mr Bellamy’s focus on what he wanted to do rather considering the associated risks;
(e) the willingness of Mr Bellamy to taxi the aircraft along the runway at close to or exceeding a recognised lift-off speed; and
(f) the proximity of the aircraft apron and parked aircraft.

91.With respect to Mr Cox, it is unclear what evidence he relied upon in order to arrive at the conclusions I have set out above. To begin with, he admitted to not being gyroplane qualified let alone having had any experience with the McCulloch J2. As I have already indicated, that gyroplane is something of a hybrid between a helicopter and a gyroplane. Furthermore, it is simply not possible from the video evidence to allow me to estimate the speed at which the gyrocopter was travelling in the course of the runs conducted by Mr Bellamy. In the video, the gyrocopter is travelling from left to right at an oblique angle towards the camera and, as is obvious from the very jittery video, it is taken from considerable distance away from the runway. Although CASA claimed the aircraft was travelling at about 45 knots, it is not possible to come to that conclusion from the angle of the video.

92.I have obtained a copy of the original McCulloch J2 gyroplane operator’s manual which states that the takeoff speed of the gyroplane is about 30 mph. That is the equivalent of approximately 26 knots. CASA also provided me with what is described as an Operations Manual from the Hoxton Park Flying School regarding the operations of the Super J-2 gyroplane. The operations manual for that aircraft describes lift-off at 41 knots. That may be where CASA has obtained the figure of about 45 knots. However, that aircraft is a modified J2 gyroplane, not the standard model which Mr Bellamy owned. While I accept that speed is a relative concept, a ground run at around 26 knots along a 1200 m runway cannot properly be described as a high-speed ground run. Also, it is significantly less than the speed estimated by CASA to have been 45 knots, particularly as the aircraft appeared not to have reached takeoff speed in any event...

I find it extremely amusing ( ) that, unlike the Quadrio or Rudd embuggerances, this time CASA's expert opinions, circumstantial and hearsay evidence is brought undone by witness testimony and video evidence. A win for the little guy..


MTF...P2  

[Kharon]

The weight of a mans heart.

“It is, with a heavy heart” etc. Every time I see a Fyce pronouncement or ruling, I wonder.  On the scales there are many, many sound rulings, some wit and solid good sense; these are, IMO, an attempt to balance the black infamy of one very heavy load on his conscience. I speak of course about his abnormal behaviour during the Avtex hearing in the AAAT. There can be little doubt that his heart is heavy with guilt; the numbers prove it, one abomination insulting justice weighed against many righteous pronouncements. No matter how many ‘good’ rulings he piles up on the ‘light side’ the Airtex ruling will haunt him for all time.

Heavy heart, with a. In a sad or miserable state, unhappily, as in He left her with a heavy heart, wondering if she would ever recover. The adjective heavy has been used in the sense of “weighed down wit grief or sadness” since about 1300. Its antonym light dates from the same period

The ancient Egyptians understood this concept very well:-

The ancient Egyptians believed that, when they died, they would be judged on their behaviour during their lifetime before they could be granted a place in the Afterlife. This judgement ceremony was called "Weighing of the Heart" and was recorded in Chapter 125 of the funerar text known as the "Book of the Dead".

The ceremony was believed to have taken place before Osiris, the chief god of the dead and Afterlife, and a tribunal of 43 dieties. Standing before the tribunal the deceased was asked to name each of the divine judges and swear that he or she had not committed any offences, ranging from raising the voice to stealing. This was the "negative confession". If found innocent, the deceased was declared "true of voice" and allowed to proceed into the Afterlife.

Some would deem this ‘fanciful’ and indeed it was – but compare it to the ‘modern day’ tenets of psychiatry, which also attempt to 'lighten the heart' before death; much as the Egyptians did. I digress.

Point; it is ‘heartening’ to see not only a court see through the CASA outlandish manipulations and almost manic need to ‘convict’, but the AAAT ruled out the second bite of the cherry.  What with double jeopardy and strict liability combined with the often constructed CASA version of the  ‘facts and circumstances’  must make it difficult to dismiss a case. But; well done Fyce and if the latest ruling lightens your heart a little, then I am glad for you. No matter my opinion; it is your face you must shave every morning.

Selah.

[P7_TOM]

A note, left on the fridge door.; thought it worth posting.

“K” – You owe me a couple of pints now for editing (more haste boy; remember); anyway – here’s an easy two pint bet, get it right and I’ll waive the beers:-

20. While you were not convicted of such an offence, I consider that your conduct on 16 July 2010 was also in breach of section 29(1) of the Civil Aviation Act 1988 (CAA), in that you were the owner, operator and pilot of the aircraft and the operation of the aircraft resulted in a contravention of section 20A(2) of the CAA, in that you operated the aircraft being reckless as to whether the manner of operation could endanger yourself or another person.

I have highlighted the ‘easy’ guess passage, for one beer: for two, you must enumerate how many of these ‘I consider’ opinions we have now read.  The point I am getting to – eventually, is the ‘legal weight' of a ‘considered’ opinion, the value which comes from someone with almost zero qualification or experience to actually be legally supportable as ‘considered’, let alone ‘expert’.

I hear the scribe of these vicious , CASA backed denunciations is about to be moved from a position where his ‘opinion’ matters, due to the exalted title, to a less dangerous (to aircrew) billet. This is a very good thing – as you know, I’ve often wondered how well these ‘considered’ opinions would withstand a determined ‘legal’ assault, through ‘qualified’ expert opinion.

Safe home – see you for Sunday lunch. (Mum's got pork).

[Kharon]

A Sunday trifle.

Alors, Monsieur Tom, comme vous voulez.  Edit appreciated – I have returned the favour, so we’ll call the bet square then.  To business – the text highlighted, for me at least, provides the quintessential example of how CASA view not only the tenets of law, the spirit and the intent of law, but their very own perverted way a ‘using’ the law. It has been endemic since Illich – famous for stating something along the lines of (paraphrased) the law is for the safe conviction of criminals – or words to that effect. He started with the premise that you were guilty – in any event – and must prove your innocence.  Achieving this was not considered any form of protection; CASA had you marked a law breaker. We have a unique system where if you escape a court prosecution, there is always the risk of either an appeal; or the AAAT hearing. IMO it is a form of double jeopardy. Even if you do manage to wriggle off both of those hooks, there is still the ‘system’ to worry you. Make no mistake about it – a win in court, a win in the AAT simply means a pyric, temporary stay of execution; the ‘system’ will eventually ‘getcha’.

This, stand alone, is a disgusting fact supported by volumes of evidence; but, it ain’t the ugly end of the plank. The truly ugly part is the way the system can be abused, fully supported by the extremes of law to the detriment or advancement of whatever an individual officer wants to achieve. Countless examples available.

We have seen the syntax in the highlighted passage many times now; from the same individual. The arrogance is breath taking; a court of qualified professional folk who deal with ‘the law’ have decided against the CASA generated opinions – provided as ‘facts and circumstances’. To achieve this ‘not guilty’ call is an expensive, uphill, arduous task, but the verdict stands. Does this worry the ‘conviction at any cost’ crowd; not at all: CASA believe you guilty, despite a favourable verdict.  At worst the argument will be re-jigged to suit the appeal; or, the AAT will be used to further the case for an ‘equal’ weight penalty; if this is not wicked enough and that too fails – then the rumour mill and whispering campaign begins. The spite and venom which pours out of CASA, at field office level is the stuff of legend and causes the sensitive to have nightmares.  Given a platform, you and I both know that the supporting evidence would shock a nation. Alas. I’ve more chance of winning the Miss Universe competition than getting the truth heard; but, nonetheless, we will keep piling up the real  ‘facts and circumstance’ against the off chance that an opportunity to present it may, miraculously, one day appear.

“I consider” despite a court thinking otherwise says it all. But who is this ‘considerer’ this guru of aviation, this doyen of aeronautical judgement, this all seeing master of dodgy doings? We must all hope; nay, fervently pray, to our pagan gods of choice that this immortal is indeed immaculate.  There would be hell to pay if it ever turned out that it was just some drunken, degenerate, unqualified incompetent who had slithered into a top job on the coat tales of the celebrated McConvict. Aye, it matters little; no matter who gets the job. Hood became a willing catamite of the McComic Chamber pot society, but they have long since departed the fix, although their great work continues unabated, it follows then, that the next incumbent would tread the same path; or resign in disgust.  Which begs the questions; is it the individuals who are corrupted by the system or is it just a corrupt system? A system which attracts a certain type?  

(Dusts off own favourite little drum) – first and foremost reform the regulator – all else is doomed to fail; thirty years of solid evidence supports the argument; the last ten prove it, IMO beyond any and all doubt.

Toot toot -

[Peetwo]

Proof will be in the Pavlova -

I must admit to not being real big on trifle, especially at Xmas time when it will invariably sit alongside Granny's fair dinkum Pavlova. Not the homogenised, fill her up with cream version that you get from Coles or Woolies...

It is with the same mixed feelings, reservations and barely hidden cynicism that I regard the olive branch gesture from Carmody that the CASA E&CC will finally be disbanded:

Romeo 37: Comardy drops the axe on the Hoodoo - 

A late entry to the Reverend Forsyth's thread could be an indicator that the bell has finally tolled for Dr Hoodoo Voodoo....

This was the reported progress on R37 from the 25 August 2016 M&M ASRR implementation report:
 


As can be seen M&M, his minions and the Board believe the implementation of R37 has been completed. However today in the Oz it i being reported that Comardy has taken R37 a step further by disbanding the witchdoctor's E&CC...

CASA cans internal ethics unit

12:00amMITCHELL BINGEMANN

The aviation regulator has quietly disbanded its internal ethics and conduct committee.

 
Could this be an early Xmas present (Olive branch) to industry by 4D and M&M? It would certainly set the tone for a good start to 2017 but personally it won't be regarded as a sincere gesture until Dr A permanently leaves Fort Fumble...   

However reflect on the Kharon linked post: Ah yes; I remember it well.

...And wasn’t that taken literally; open season on industry and a chapter of shame in the long, bloody history of our ‘regulator’. The simple fact that whatsisname – Skidmoron – failed to sign it; the shrine to McComic preserved in it’s original vile state and still active. What chance does the good Rev. Forsyth’s R 37 stand against such engineered intent to never, ever change anything CASA does. They are addicted to the untrammelled power built into every comma, full stop and wriggle room paragraph, used to justify the truly disgraceful behaviour of some of their crew...

...The McComic statement, tacitly supported by Skidmoron stands as testament to the absolute determination of the ‘iron wrong’ to persist in their quest for unlimited power, under black letter law, with strict liability and the power of ruling ‘at their discretion’, to their satisfaction.  That, and the ability to protect and succour the hand picked willing accomplices who support the tenet and perform the allotted tasks needs immediate eradication, with malice aforethought...

Until such time as all references to E&CC, plus the McCormick black-letter rule of embuggerance are erased from all CASA records, including the Director's preface of the Enforcement (embuggerance) manual the disbanding of the E&CC is merely an empty token gesture designed to once again temporarily placate an aggrieved industry...

Latest links for the FF EM with Director's preface:  

Enforcement manual

Our enforcement manual outlines the policies and strategies we have in place for aviation safety compliance.

Director's preface
Revision history(last update January 2016)
Complete manual

   
MTF...P2

[Gobbledock]

Roll the wings level Captain, headwind has swung from 45kn to a 70kn tailwind, watch your power settings and heading.

So Herr Wingnut is certainly unpredictable. One minute collaborating with the IOS, next minute defiantly thumbing his nose at the IOS. Is he bipolar, crafty or genuine? It's like landing a jet during an airfield thunderstorm containing microbursts and all other sorts of nasties, you don't fully know what the beast will do next, but if you take your eye off the ball for a split second the rescue crews will be picking your teeth out of your asshole for a month!

The ECC beast has gone. Thumbs up! It was a con the day McComick created it. The ICC under the inestimable Michael Hart was transparent, clean, and fair. Then Hart pulled the pin and the Angry Man, Far'q'u'hard'son and Dr Voodoo went about setting up a crooked Frankenstein in its place, all with the backing of the Godfather Murky. So it would seem that the return to an ICC which reports to the Board and it's Chairman 'wake up Jeff', is an interesting and surprising manoeuvre on the 'obsfucation chessboard'.

- Does the new structure give 'wake up Jeff' more muscle? Hmmm, don't know, time will tell. Technically yes, but It makes me suspicious.
- Does the new structure cut out the sly Dr Voodoo from massaging investigation activities? Technically, yes. But again, I remain suspicious.
- Does the new structure make CAsA malfeasance during investigation processes more difficult to pull off? Technically, yes. But I've still seen the legal dross and their hired guns deliver umpteen pineapples to the IOS through the court system, therefore bypassing the ICC if the Golden West Mafia didn't like the Commissioners decision. As a CAsA executive once said; 'there is more than one way to skin an aviation cat'.
- Does the new structure mean that we are indeed seeing a change in direction at CAsA, away from being totally punitive and crooked, to a transparent and fair process? Hmmmm, a bit hard to believe me thinks. I remain suspicious. However, I do know that there are quite a few inside CAsA that don't like Jeff because they feel he is siding more with the IOS than with his CAsA comrades. Interesting.

It really is too early to determine if Wingnut is throwing out herrings left, right and centre, or is pushing for legitimate changes, or is just pulling our doodles and playing us, the Senate, and his Masters (some of them like DDDD) for fools.

I do believe, quite robustly and positively though that there is much more to follow....

[Peetwo]

Embuggerance according to Carmody..Oliver..err McComic   
(My head hurts... )

Listen up Aviation House inhabitants, a word or two from the Ferryman...

Via Domestic Accidents thread: 

Without prejudice; (or even a dog in the fight).

P2 – “Interesting that Comardy is sitting in the position of the decision maker?

It is to hoped that the position ‘decision maker’ (Hoods old job) is vacant; if so, it will one of the very best decisions Carmody ever made; if not ‘the’ best.

P2 – “Will this now be SOP for all 'show cause' enforcement actions or has Carmody sacked anyone else who can make such decisions?”

Dunno mate; but for Carmody’s sake, lets hope he is not basing his decisions on the ‘Enforcement manual’; unless of course he has signed it and now owns it as his very own. I wonder how a serious legal challenge would fare against any ‘action’ taken against a person based on that dreadful ‘McConvict’ drafted section. I reckon that would be ‘interesting’.

Seventeen days after the crash, CASA acting chief executive Shane Carmody wrote to Mr Rhoades to say his air operator’s certificate was suspended immediately because, as chief pilot and business owner, he had allowed flying that “contributes to or results in a serious and imminent risk to air safety”.

All a bit too ‘subjective’ for my taste. I’d expect most reading here have operated in ‘turbulent’ conditions, most have probably operated passenger flights in aircraft without a cockpit door; done ‘joy flights’ and ‘scenic flights’ or even back in the day, ‘commuter’ flights. How would you like a beer in the fridge for every time you’d heard a passenger ‘scream’ or similar when you hit the bumpy bits; or when you level off and come back to cruise power, or ‘crank it over a bit’ so folk can see what they came to see? It is, IMO perfectly understandable that folk are ‘nervous’ when confronted with a tiny, one engine aircraft, a stranger for a pilot and all ‘crammed’ into the small area allotted. The noises (engine and airflow) all perfectly acceptable to the ‘pilot’ heighten sensitivity, and any ‘abrupt’ change of ‘state’ increases the tension level. It is a fair bet that at least one of three passengers in a C172 just did not want to be there anyway. In defence of this pilot, it would be reasonable to argue that unless one of the passengers was an accredited pilot, capable of ‘judging’ the manner in which the flight was handled; then hearsay evidence from passengers is not only worthless, but prejudicial. If this fellah has been ‘acting the goat’; then by all means, string him up, after proof beyond reasonable is accepted by the court.  

"The flight, including the wail of the stall warning horn, is recorded in a video taken by a passenger and recovered by police."

These Qld CASA chaps do seem to like their ‘video’ evidence; the Quadrio matter is not forgotten and there may be a line of defence in those ‘images’ and recordings of ‘passengers squealing’.

Mr Carmody wrote that the video showed Mr Woodall flying at 150-200 feet; risky, because if something went wrong such as engine failure, “he would have only minimal altitude, and therefore (minimal) time, to safely manage the upset”.

Precautionary search? Seems like a very ‘safe’ precaution to landing ‘on the beach’. I would say that not to do so was certainly a risk. The procedure should be cast in stone in the company operations manual; that would be mandatory. Accepted or ‘approved’ by CASA is academic as CASA approve the Air Operators Certificate and by extension – the operations as writ. Had this fellah not done a PS and had an event on the ‘strip’ then crucifixion would be in order. Again the intent to be unsafe can be discredited, a saving of an additional five or perhaps six minutes operating costs could be avoided by ‘skipping’ the PS. So it comes back to just what is ‘unsafe’ and who is making the judgement.

Mr Carmody criticised what he called “aerobatic manoeuvres”, saying the recording “includes an audible ‘squeal’ from a passenger at the beginning of the abrupt pitch inputs”. The CASA chief said Mr Woodall should have kept up his airspeed after the engine failed, not risked a stall by banking hard, and landed on water if necessary. He alleged the plane’s fuel supply might have been contaminated by debris.

Try to define ‘aerobatic’ in this context. Provided the aircraft was not operated outside of the specified envelope, then a steep turn, or whatever is quite legal. A badly executed ‘manoeuvre’ may demonstrate a lack of skill and/or judgement; but can it be considered ‘dangerous’ without the benefit of a 'G' meter record? It is all very well to say Mr Woodall ‘should’ have done this or that after the event, indeed most pilots who have been involved in any sort of ‘event’ can recount exactly what they ‘should’ have done; and would do, if it ever happens again. I wonder if CASA ever mandated a training requirement, specific to that beach area, dedicated to establishing ‘best practice’ in the event of an engine failure, at low level on the go-around after the precautionary search? If not why not, surely that would be ‘proper’ oversight of the safety of the operations approved by CASA.

Perhaps this was a cowboy operation; perhaps not. But consider all the evidence, before pronouncing a sentence.

When we teach someone to fly – what is the noise heard during the flare and touch down? What is the purpose of that noise? Is it absolutely safe to slow the aircraft down to stall warning speed? What does the pilot have at his ready disposal to maintain the speed at which the warning occurs?

Nope, no quarrel with CASA shutting down a rogue, non at all; provided they have got all the ducks lined up and back ‘em up with proof, beyond reasonable doubt; and, perhaps adjust their thinking toward ‘prevention’ rather than prosecution.

My two bob for its worth.

Toot toot.

Then I noticed today an update to the FF attempted embuggerance of the 2013 aviation Darwin award nominee, via the other Aunty... :

Ultralight crash survivor cries poor after four-year legal 'saga' since 2013 ordeal

By Sallese Gibson and James Dunlevie
Updated about 8 hours ago Tue 14 Mar 2017, 11:50am

Photo: Shayd Hector has said he has exhausted his finances due to the long-running case. (ABC News: Sallese Gibson)

A pilot who ditched his ultralight plane into Bass Strait and survived with his passenger by clutching on to air mattresses has said he is broke after 11 court appearances since the event.
Shayd Hector, 27, was flying the Thruster ultralight plane from Bridport in Tasmania's north to Flinders Island when engine trouble forced him to ditch into the sea in October that year.

Photo: The Thruster ultralight that ditched into Bass Strait (Supplied)

Hector and passenger Joel Nelson, both from Newcastle, managed to survive the impact and swim out from the plane, which had flipped after hitting the sea.
"I told my passenger to brace ourselves, seat belts off and get ready, doors open," Hector told media once back on dry land.

The pair clung to air mattresses and said they had feared shark attacks due to the fact they were bleeding from cuts and abrasions sustained in the crash.

Hector's flying instructor described his former student and his passenger as "very, very lucky" and said as far as he was aware "it's the first saving of anybody from an aircraft ditching in Bass Strait ever since the first aeroplanes".

Hector was charged with reckless operation of an aircraft, flying without a licence and piloting an aircraft after having consumed alcohol within eight hours before departure.
He pleaded guilty to reckless operation of an aircraft, with the other charges were withdrawn. After failing to appear at sentencing in January this year and arrest warrant was issued for him.

'Saga' needs to be resolved, magistrate says

Hector later presented to police and travelled to Launceston for today's sentencing where he told the Magistrate's Court he was broke after nearly four years of legal proceedings.

Defence lawyer Evan Hughes told the court he had only recently taken on Hector's case, after he had exhausted all funds on previous legal representation.

Mr Hughes said he was not in a position to advance the matter, as Hector's application for LegalAid had been refused and an appeal was still pending.

Magistrate Sharon Cure said the case as "a bit of a saga", which was still unresolved after 11 court appearances.

"It's becoming very old," Ms Cure told the court. "It's four years after the event. It makes things very difficult."

Ms Cure adjourned the case until May.

And off the UP Lead Balloon (aka Creampuff) hits the nail on the head with this sorry tale of attempted embuggerance... :

Lead Balloon

As this wends its way to the almost inevitable slap on the wrist for the offence to which the accused has pled guilty, we should ask: What will have been achieved?


Will we all decide to fly an ultralight, unlicensed, across the Bass Strait with an inflatable 'lilo' as emergency floatation equipment and a few drinks under our belts in the previous 8 hours? Nope.

Will the people with a propensity to fly an ultralight, unlicensed, across the Bass Strait with an inflatable 'lilo' as emergency floatation equipment and a few drinks under their belts in the previous 8 hours, decide not to do so? Nope.

Other than the occasional amusing headline, what will have been achieved?

 
No further comment required me thinks...  
MTF...P2

Ps Embuggerance manual tracking update: Download preface.pdf

It would appear that J Mac is still the real DAS/CEO at Aviation House - UDB!

[Peetwo]

Houseboat stable:19.30.

Why is it always better ‘on tap’? CASA need to be having ructions; but they won’t. The likes of Campbell (one of the too many)) need to steal off into the night: if ‘justice’ is not to be served. Hopefully the new man (yes, yes, or women – for pities sake) with the silly title will need, as a pressing element of reform, to weed out the dunks, the inutile and the venal.

No, no, it will not do... The villains sliding out the back door, still very gainfully employed, after the damage they have done? Without repercussion, or penalty to prospects, careers, reputation and bank accounts. Bollocks; the damage done is massive. CASA wants now to get all cosy – fine; but first, apology and compensation is required. Dom James has had a charmed ‘walk-in-the park’ by comparison to some of the outstanding ‘embuggerance’ victims affected by these mindless amateurs. They all await ‘real’ tangible reform.

It is CASA which needs reformation first; not the bloody silly regulations.

Enough with ‘system’. Careers shredded, money lost all on the ‘say-so’ of Wodger the purblind catamite or the unspeakable ‘friend’ of Hempell – BOLLOCKS. There are good men languishing in ‘Dole City’ because of these parasitic pretenders. They know who they are; we know who they are – enough with the dining and dancing.

IF the minister don’t know who they are and what they have done; we can (a) privately tell him; or, (b) tell the world who they are, what they have done and back it up with ‘fact’ and evidence.

Times up minister – after the budget – we go public – warts and all. Fire ‘em, and restore faith. For example giving a Campbell another job, no matter how far removed from the mainstream is not going to be let slide by. Fair warning, fire them, then prosecute them, – then get it sorted; or, we will blow the gaff, all of it, just as ICAO turn up. That is a promise…

Steam off ‘K’ – thanks. (I believe I will have another, bless you child). TAXI.

[Kharon]

The Pel Air overture.

This new Pel-Air report is a doozy; can’t wait to see all of it. It seems to be having an extraordinary affect on some of the main players in an act of embuggerance second only to another, similar act perpetrated by the same crew. Suddenly liars are become honest; the spreaders of foul, malicious calumnies now leading the choir singing the praises of those they willingly harmed; grovelling in apology, bearing gifts of first aid, rubber stamps and eternal friendship.

What manner of men are these? Suddenly, their fear of being exposed for what they are has them scampering about making secret confessions, not as repentance, but in fear. Terrified of their guilty complicity being exposed. Too little, too late; their names have long been on my passenger list; their two coins paid in advance, their story’s writ, awaiting only the telling.

“The Moving Finger writes; and, having writ,
Moves on: nor all thy Piety nor Wit
Shall lure it back to cancel half a Line,
Nor all thy Tears wash out a Word of it.”

Toot toot.

[Peetwo]

Embuggerance comes cheap under strict liability -

According to KC, in his excellent and informative article in AMROBA's latest newsletter (see HERE); CASA's legal eagle's Dr Aleck & Anastazi are saving time and ATP money thru strict liability embuggerances of wayward criminal industry participants... 

But seriously - read & absorb the following for a better understanding on why strict liability offences and reverse onus of proof should have no place in aviation regulations...

2. Why do Aviation Regulations Reverse the Onus of Proof?

When I started in aviation the burden of proof, when "safety" was jeopardised, was on the regulator to prove by identifying an unsafe practice then finding the non-compliance or breach of the Act, regulations or Order requirement. Justifying that "safety" had been jeopardised in the "opinion of the Inspector" was only upheld in AAT if the Inspector had the expertise to convince the courts – not always easy. What we now need is a Minister to direct that there should be no reverse onus of proof in the Act and Regulations (something that was once "normal legislative form") or that "strict liability" shall not be used where any measure of pilot/LAME decision making is involved, because it violates the definition of "strict liability" in the Criminal Code.

"Strict liability" applied to regulations removes the legitimate rights of pilots/LAMEs and takes precedence for administrative convenience and perceived cost savings in program administration.

The ALRC (Australian Law Reform Committee) does not support new torts imposing strict liability. Strict liability leads to liability regardless of fault. If the cause of action were one of strict liability, then the defendant would be held liable even though they were not at fault, that is, the defendant’s actions were not intentional, reckless or negligent.

Mr Spencer Ferrier has written an excellent article on this subject in the latest AOPA magazine. This industry is being conned by CASA who are directing the use of strict liability to save their resources and to use the infringement notices for breaches of badly written regulations that are not harmonised, especially in the Pacific region.

In tort law (a tort is a civil wrong), strict liability is the imposition of liability on a party without a finding of fault (such as negligence or tortious intent). The claimant need only prove that the tort occurred and that the defendant was responsible. The law imputes strict liability to situations it considers to be inherently dangerous. It discourages reckless behaviour and needless loss by forcing potential defendants to take every possible precaution. It also has the effect of simplifying and thereby expediting court decisions in these cases.

Obviously, politicians, public servants, including CASA, think aviation is inherently dangerous when it is one of the safest means of transport due to the professionalism of the flying and engineering fraternity.

If an honest review of regulations that have been implemented since 2005 was carried out, there would be very few requirements that could be classified as addressing a situation that is inherently dangerous.

The imposition of strict liability can be both unfair and unjust. There are many problems with the way that strict liability is currently imposed. Problems with strict liability include:

• It may not succeed in raising standards as people often do not realise that they are party to any wrongdoing.
  
• Decisions are often unjust and unfair.
  
• The courts often face difficulty identifying strict liability offences and are inconsistent with their attitude and decisions.
  
• There is often a marked lack of clarity in judgements. Decisions with regard to strict liability can sometimes lead to outcomes that are the opposite of what was intended by the law.
  
• A criminal conviction and the possibilities of massive penalties are imposed on the defendant for an offence that he/she may not have foreseen/intended or been able to prevent.
  

The Senate Committee Report states in Chapter 7, Application of absolute and strict liability offences in Commonwealth legislation:

• the process of deciding whether to introduce strict liability for an offence should recognise that this may have adverse effects upon those affected. The legitimate rights of these people should be paramount and take precedence over administrative convenience and perceived cost savings in program administration;
  
• agencies should acknowledge that there may be areas where existing strict liability offences, or the way they are administered, may be unfair. In these cases, agencies should review the offences under the general coordination of the Attorney-General’s Department; 
  
• strict liability should not be implemented for legislative or administrative schemes that are so complex and detailed that breaches are virtually guaranteed regardless of the skill, care and diligence of those affected. Any such scheme would be deficient from the viewpoint of sound public administration; 
  
• strict liability offences should be designed to avoid the likelihood that those affected, particularly by the issue of an infringement notice, will pay the lower penalty simply because it is easy and convenient to do so, rather than spend the money and time to pursue what might be a legitimate defence. Any agency that encouraged this tendency would be acting improperly; 
  
• strict liability should depend as far as possible on the actions or lack of action of those who are actually liable for an offence, rather than be imposed on parties who must, by necessity, rely on information from third parties in Australia or overseas. Offences that do not apply this principle have the potential to operate unfairly; 
  
• strict liability has the potential to adversely affect small and medium enterprises. Steps should be taken to ameliorate any such consequences arising from the different compliance and management resources of smaller entities; 
  
• any potential adverse effects of strict liability on the costs of those affected should be minimised to the extent that this is possible. In particular, parties who are subject to strict liability should not have their costs increased as a consequence of an agency reducing its costs; 
  
• external merit review by the Administrative Appeals Tribunal, or other independent tribunal, of relevant decisions made by agencies is a core safeguard of any legislative or administrative scheme. Every agency that administers strict liability offences should review those provisions to ensure that this right is provided; new and existing strict liability schemes should have adequate resources to ensure that they are implemented to maximise safeguards. A lack of proper resources may result in the inadequate operation of those safeguards; 
  
• strict liability should not be accompanied by an excessive or unreasonable increase in agency powers of control, search, monitoring and questioning. Any such increase in powers may indicate that the legislative and administrative scheme has structural flaws; 
  
• there should be a reasonable time limit within which strict liability proceedings can be initiated. It would be unfair to those affected if they were to be charged perhaps years after an alleged breach; 
  
• as a general rule, strict liability should be provided by primary legislation, with regulations used only for genuine administrative detail. It would be a breach of parliamentary propriety and personal rights for regulations to change the basic framework or important aspects of a legislative scheme; and 
  
• the use of strict liability in relation to the collection of personal information about members of the public from third parties has the potential to intrude into the legitimate rights of the people whose details are being collected. In such cases the entire process should be transparent, with all affected members of the public being notified of their rights and remedies under the Privacy Act.
  

Adherence to these principles would see many aviation strict liability provisions being removed as they certainly do not adhere to these principles.

Reference link for the SSC Scrutiny of Bills 2002 report: Chapter 7 - Application of absolute and strict liability offences in Commonwealth legislation

Once again KC, the key for the Tim Tam cupboard is in the mail...


MTF...P2  

[Peetwo]

A case of embuggerance or professional negligence?

Don't have an opinion not my area; but there is an interesting AAAT (v CASA) case just published...

Wotherspoon and  Civil Aviation Safety Authority  [2017] AATA 793 (30 May 2017)Last Updated: 2 June 2017

Wotherspoon and [b] Civil Aviation Safety Authority  [2017] AATA 793 (30 May 2017)[/b]
Division: GENERAL DIVISION
File Number: 2016/2262
Re: John Wotherspoon
APPLICANT
And [b] Civil Aviation Safety Authority [/b]
RESPONDENT
DECISION

Tribunal: Egon Fice, Senior Member

Date: 30 May 2017
Place: Melbourne
The Tribunal affirms both decisions under review.
........................................................................
Egon Fice, Senior Member

[b] CIVIL AVIATION SAFETY AUTHORITY 

[/b]– suspension of ATPL (Helicopter) and CPL (Helicopter) Licence – critically weight limited aircraft - operation of aircraft in excess of Maximum Take-off Weight and outside the centre of gravity – failure to accurately maintain fuel records – failure to weigh passengers before flights in accordance with manual - whether appointment of applicant as Head of Operations satisfies requirements specified in Civil Aviation Safety Regulations - whether applicant failed in duty as a Flight Instructor – decisions affirmed

Legislation
Civil Aviation Safety Regulations 1998; regs 11.005, 141.020, 141.050, 141.60, 141.090, 141.110, 141.130
Civil Aviation Regulations 1988; regs 138(1), 215(9), 220(2), 269(1)
Civil Aviation Act 1988 s. 9A

Secondary Materials
JamCo Aviation Operations Manual

REASONS FOR DECISION

Egon Fice, Senior Member

30 May 2017

1.Mr John Wotherspoon holds an Air Transport Pilot Licence (ATPL) issued on 14 May 2004 and has held a Commercial Pilot Licence (CPL) since 2 January 1986. Mr Wotherspoon also holds a Flight Instructor Rating with Grade 1 and Grade 2 helicopter training endorsements. He was the Chief pilot (CP) and Chief Flying Instructor (CFI) of JamCo Aviation Pty Ltd (JamCo) between 1 July 2013 and 13 March 2015.
2. On 13 April 2015 The Experiences Group Pty Ltd (The Experiences Group) applied to CASA seeking approval of its proposed appointment of Mr Wotherspoon to the position of Head of Operations (HOO) of The Experiences Group.
3.Part 141 of the Civil Aviation Safety Regulations 1998 (CASR) deals with recreational, private and commercial pilot flight training. If a person wishes to conduct flight training they are required to hold a Part 141 certificate authorising that training. Regulation 141.050 provides1) A person commits an offence if: (a) the person conducts Part 141 flight training; and
(b) the person does not meet the requirements mentioned in subregulation (2).

Penalty: 50 penalty units.

(2) For paragraph (1) (b), the requirement is that the person must hold: (a) a Part 141 certificate that authorises the person to conduct the training; or
(b) an approval under regulation 141.035 to conduct the training.

(3) An offence against this regulation is an offence of strict liability.4.Regulation 141.060 sets out the criteria which must be satisfied before the  Civil Aviation Safety Authority  (CASA) must issue a Part 141 certificate. Significant, as far as this matter is concerned, are the following:

(1)...

(a) ...
(b) the applicant can conduct the proposed Part 141 flight training safely and in accordance with its operations manual and civil aviation legislation;
© the applicant’s organisation is suitable to ensure that the training can be conducted safely, having regard to the nature of the training;
(d) the chain of command of the applicant’s organisation is appropriate to ensure that the training can be conducted safely;
...

(i) each of the applicant’s proposed key personnel: (i) is a fit and proper person to be appointed to the position; and
(ii) has the qualifications and experience required by Subpart 141.D for the position; and
(iii) has the qualifications and experience required by the applicant under subparagraph 141.260 (1) (b) (i) for the position (if any); and
(iv) has the additional qualifications and experience required by CASA under regulation 141.155 for the position (if any).
...
5.The expression key personnel is defined in Reg 141.020 as follows:

In this Part:
key personnel, for a Part 141 operator, means the people, however described, that hold, or carry out the responsibilities of, the following positions in the operator’s organisation:

(a) chief executive officer (CEO);
(b) head of operations (HOO).

6.Subject to Reg 11.055, CASA must approve a significant change for a Part 141 operator if it is satisfied that the requirements in Reg 141.060(1) will continue to be met (Reg 141.090).
7.In a letter dated 7 September 2015 CASA informed The Experiences Group that it was considering refusing the approval of Mr Wotherspoon to the position of HOO. It invited The Experiences Group to show cause why CASA should not refuse its appointment of Mr Wotherspoon as HOO on the basis of its concerns expressed in that letter. On 17 September 2015 Mr Guy Maine, Chief Pilot for The Experiences Group, provided a response to the show cause letter. In an email dated 23 October 2015, Mr Wotherspoon attached a request for a show cause conference.
8.In a letter dated 4 November 2015 CASA informed Mr Maine that it considered certain contraventions by Mr Wotherspoon of a number of legislative requirements to be serious and significant to the extent that CASA could not have any confidence in Mr Wotherspoon’s ability to discharge the duties of the HOO. It refused to approve the significant change under Reg 141.090 of the CASR.
9.In addition to the above, in a letter dated 21 October 2015 CASA informed Mr Wotherspoon that it was considering recommending to a delegate of CASA that his ATPL (Helicopter) Licence; Commercial Pilot (Helicopter) Licence; Flight Instructor Rating – Grade 1 helicopter or Flight Instructor Rating – Grade 2 helicopter; be varied, suspended or cancelled on the basis of the facts and circumstances set out in that letter. CASA was concerned with Mr Wotherspoon’s conduct while holding the position of Chief Pilot and Chief Flying Instructor for JamCo. CASA alleged that Mr Wotherspoon had operated a R22 helicopter in excess of its Maximum Take-off Weight (MTOW) and outside the centre of gravity (C of G) limits; and that he failed to record the fuel remaining at the end of flights. The letter invited Mr Wotherspoon to show cause why those actions should not be taken.
10.Maitland Lawyers, acting for Mr Wotherspoon, responded to the show cause notice in a letter dated 16 December 2015. Mr Wotherspoon also attended a show cause conference on 8 February 2016 and was given the opportunity to expand upon his written response. After considering Mr Wotherspoon’s response to the show cause notice and the discussions held during the show cause conference, CASA determined that his conduct did not warrant any action being taken against his ATPL or CPL, however it was serious enough to warrant suspension of his Flight Instructor Rating.
11.On 28 April 2016 Mr Wotherspoon lodged an application with the Tribunal seeking review of the decision to suspend his Flight Instructor Rating and to reject the application of The Experiences Group for a change in its key personnel by permitting Mr Wotherspoon to take up the position of HOO.
12.CASA’s decision to refuse the appointment of Mr Wotherspoon as HOO of The Experiences Group and its decision to suspend his Flight Instructor Rating are based on the same circumstances. CASA claimed that on ten occasions Mr Wotherspoon operated the Robinson R22 helicopter outside of its forward C of G limits while providing flying lessons to students in January, February and March 2015. According to CASA, those contraventions breached Civil Aviation Regulations 1988 (CAR) 138(1) and 215(9). CAR 138 deals with the requirements of a pilot to comply with the aircraft’s flight manual. It provides1) If a flight manual has been issued for an Australian aircraft, the pilot in command of the aircraft must comply with a requirement, instruction, procedure or limitation concerning the operation of the aircraft that is set out in the manual.

Penalty: 50 penalty units.

13.CAR 215 deals with the Operations Manual. Relevantly in this case, it provides:

(9) Each member of the operations personnel of an operator shall comply with all instructions contained in the operations manual in so far as they relate to his or her duties or activities.
Penalty: 25 penalty units.
14.Furthermore, CASA claimed that Mr Wotherspoon committed multiple breaches of
CAR 220(2) by failing to maintain a record of the fuel remaining in the tanks of the aircraft at the end of each scheduled flight. CAR 220 relevantly provides2) An operator shall maintain a record of the fuel remaining in the tanks at the end of each scheduled flight and shall review continuously the adequacy of the instructions in respect of the fuel to be carried in the light of that record, and shall make any such record available to CASA, upon request.

Penalty: 25 penalty units.

CASA also claimed that Mr Wotherspoon’s failure to record the fuel remaining in the aircraft at the end of each scheduled flight constituted a breach of CAR 215(9) as it was contrary to JamCo’s operations manual.
15.I am required to determine whethera) the appointment of Mr Wotherspoon as the HOO of The Experiences Group would ensure that it continued to satisfy the requirements specified in CASR 141.060 (1); and
(b) Mr Wotherspoon has failed in his duty as a Flight Instructor in that he has contravened a provision of the CAR; whether that contravention effected the safe navigation or operation of an aircraft; and whether Mr Wotherspoon is a fit and proper person to be the holder of a Flight Instructor Rating.

16.I have referred to the relevant requirements specified in CASR 141.060(1) at [4] above. The relevant provisions in CAR 269(1) are as followsa) that the holder of the licence, certificate or authority has contravened, a provision of the Act or these Regulations, including these regulations in force by virtue of a law of a State;
(b) ...
© that the holder of the licence, certificate or authority 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 licence, certificate or authority is not a fit and proper person to have the responsibilities and exercise and perform the functions and duties of a holder of such a licence or certificate or an authority; or...


OPERATIONS MANUAL REQUIREMENTS

17.I had in evidence a copy of the JamCo Aviation Operations Manual. Sub-section A3.11 deals with fuel usage and flight records. It provides1) The Chief Pilot shall calculate the average fuel consumption rates for individual aircraft types as achieved in actual company operations. These consumption rates are to be used as a basis for the consumption rates to be used by company Pilots to comply with the company fuel policy. Refer to specific aircraft data in Part B.
(2) All Flight Record sheets are to be forwarded to the Chief Pilot on the completion of a flight or, if necessary, on a weekly or monthly basis as requested by the Chief Pilot. Each section of the Flight Record sheet is to be completed in full and filed under the particular aircraft type. The Chief Pilot is to maintain and publish the average consumption rates calculated on a monthly basis for individual aircraft. These records are to be maintained for the preceding 12 months.

18.The Chief Pilot is responsible for ensuring compliance with loading procedures specified for each aircraft type and proper compilation of loading documents including passenger and cargo manifests (A1.4.3.1(5)).
19.Sub-section A1.4.10 provides:

A company Pilot is to ensure that they operate Company Aircraft in accordance with the provisions of all associated CAR’s, CASR’s, CAO’s, AIP, the Aircraft’s Flight Manual and this Operations Manual.
20.Before flight, the pilot in command must ensure a number of things including (A1.4.10.2)2) The weight of the aircraft is within the performance and structural limits, the aircraft’s centre of gravity is within limits for take-off and zero fuel weight and the load carried by the aircraft is so distributed and secured as to be safe for flight;...

21.The pilot in command has a number of post flight responsibilities including (A1.4.10.4)3) calculating and enter all fuel usage and noting any oil quantities for each flight and entered into Flight Book J-009;...

22.Prior to the commencement of any flight or route segment, the pilot in command must ensure, amongst other things (A1.9), that1) adequate fuel and oil in accordance with the company fuel policy as described in subsection A1.22 of this Operations Manual, is carried;
(2) ...
(3) the gross weight does not exceed the limitations;
(4) the C of G is located within limits;

...
23.Sub-section A1.22 deals with company fuel policy. It states that JamCo aviation company fuel policy is to comply with the recommendations of the latest issue of the Civil Aviation Advisory Publication (CAAP) 234-1(0). Essentially, it provides that helicopter operations under the Visual Flight Rules must carry a fixed fuel reserve of 20 minutes at normal cruise. The CAAP recommends that flights with sectors of 3 hours or more between suitable aerodromes at which a safe landing can be made should carry a variable reserve of 10% of estimated cruise fuel. Helicopters undertaking private and aerial work (which includes flying training) are not required to carry a variable reserve. Nevertheless, the Operations Manual recommends the use of 15% variable reserve on all flights unless that is not possible due to weight limitations, and then on aerial work flights, only the fixed reserve need be carried.
24.Sub-section A4.3 deals with general loading procedures. In particular, it states that the pilot in command shall ensure that the Maximum Take-off Weight (MTOW) and C of G limits are within the approved flight manual requirements for the entire proposed flight. It goes on to say:

It is the responsibility of the pilot in command to ensure that all passengers’ and cargo weights are calculated before they are loaded onto the aircraft. Scales for weighing passengers and cargo shall be used for all fuel critical flights operating at or near maximum take-off weight (MTOW) (ie. fuel critical flights are those that do not carry additional fuel over and above flight fuel and mandatory reserves). Precalculated load sheets may be used for non-fuel-critical flights, where the pilot in command can confirm that the appropriate load sheet will provide a conservative estimate of the aircraft’s actual weight and centre of gravity (CG.) location; and that the MTOW will definitely not be exceeded – in these cases it may not be necessary to weigh the passengers and/or cargo.

25.Finally, in this section, I should refer to aircraft refuelling procedures found in sub-section A6.3. Relevant paragraph provides3) The crew member supervising refuelling is to note the fuel meter readings before and after fuel delivery and confirm that the correct amount is entered on the fuel record.
26.The maximum all up weight of the R22 helicopter is 623 kg. The empty weight (that is without fuel, pilots or baggage) of the R22 is 399.2 kg. Rounding that figure off at 400 kg, the maximum weight of fuel, pilots or pilot plus one passenger and baggage cannot exceed 223 kg. It should be immediately apparent that this aircraft is critically weight limited. That is before one examines where the C of G will be at any particular weight. When the aircraft is used for training purposes, the pilot in command must establish an accurate weight for the instructor and trainee and the quantity of fuel on board. Each litre of fuel weighs 0.72 kg. Again, it is glaringly obvious that, depending upon the weight of the two persons on board, the amount of fuel which can be carried may be significantly limited. The accepted cruise fuel consumption of this aircraft is 35 L per hour, which appears to take into account the extra fuel used in take-off and climb to altitude. Therefore, the fixed reserve, which must be 20 minutes of ordinary flight time, will account for 11.6 kg which must be carried before any additional flight fuel is put on. Allowing for the fixed reserve limits, the maximum weight of the two persons and fuel is limited to
211.4 kg. Obviously, if the two persons on board weigh around 100 kg each, the aircraft is not going to go very far.
27. It is these serious limitations which caused CASA considerable concern when its officers carefully examined the flight operations conducted by Mr Wotherspoon at the time he was Chief Pilot for JamCo. Unsurprisingly, CASA raised serious concerns about the recording of fuel taken on board the R22 for each flight and the weight of the instructor and trainee.

FUEL RECORDING

28.Accurate recording of fuel taken on board on any single flight on an aircraft as weight critical as the R22 is mandatory. The addition of 16 L fuel in the circumstances I have outlined above, with two occupants in the aircraft together weighing around 200 kg, will put the aircraft at its MTOW. That amounts to about 27 ½ minutes flying time. C of G considerations add to the problem.
29.Despite the very clear regulation dealing with the recording of fuel remaining in the tanks at the end of each scheduled flight, and the data required to be entered onto the Flight Record sheet prescribed by the Operations Manual, Mr Wotherspoon admitted in his oral evidence that the procedure undertaken was somewhat haphazard. The records which were in evidence for the aircraft which was used for training (VH-PUM), disclose that the length of the trips ranged from 0.1 hours up to a maximum of two hours duration. In the decimalised hourly recording system, 0.1 of an hour is equal to 6 minutes. Those trips which were clearly dual training flights were much shorter, between about 0.3 to 0.6 hours. The trip records contain a column for each of Fuel Added; Fuel Start; Fuel Stop; and Fuel Used.
30.Mr Thomas William Graham, a Flying Operations Inspector with CASA, provided two written statements of evidence which included a number of attachments. In his first witness statement dated 9 September 2016, Mr Graham said that his involvement in this matter commenced on 3 July 2015 when he was asked to take notes for a CASA investigation during an interview with Mr Wotherspoon at CASA’s Melbourne Office. The handwritten notes taken by Mr Graham were attached to his statement. Mr Graham recorded Mr Wotherspoon as saying:

I would often fill in the trip sheet from the flight authorisation sheet at the end of a busy day. Sometimes, I would record the fuel on the trip sheet from memory.
31.The Trip Records in evidence for VH-PUM were for between 20 December 2014 and 8 March 2015. There are many anomalies and omissions in those records. For example, the entry for 7 January 2015 shows that 20 L was added and the aircraft therefore had
50 L at the start of its flight. That entry does not have a fuel figure for the end of the flight on that day and is followed by three further flights on the same day which have no figures at all indicating the fuel at the start of each flight or the end fuel on each trip. The next entry (date obliterated by punch hole) also in January 2015 shows 25 L of fuel being added, nothing for fuel at the start of the flight and 10 L remaining at the end of the flight. There are then a number of entries between 15 January 2015 and 19 January 2015 which appear to have been pencilled in.
32.In a letter dated 27 May 2015 Mr Wotherspoon attempted to explain why he believed he was at all times aware of the weight of the aircraft on the trips which CASA identified as being of concern. The dates of those trips and the student with whom Mr Wotherspoon conducted the flight are as follows:

24 January 2015 with Danny Brown
4 February 2015 with Danny Brown
14 February 2015 with Danny Brown
6 January 2015 with Andrew Pitt
19 January 2015 with Andrew Pitt
24 January 2015 with Andrew Pitt

3 February 2015 with Andrew Pitt

4 February 2015 with Andrew Pitt

5 February 2015 with Andrew Pitt

2 March 2015 with Andrew Pitt

33.Mr Wotherspoon said:

I believe that the fuel load shown in the calculations were not representative of the fuel in the aircraft at take-off. Whilst I have not been provided with the flight sheets of the flights for which I am accused of, I produced 3 copies of typical flight sheet that I filled out for each flight. These sheets have the following columns,...
When conducting training flights in an R22, I would rarely not add fuel prior to the commencement of each flight. This is due to the relatively small load available when conducting dual training flights. The flight sheets attached do not always accurately reflect the fuel on board at the start of the flight. For instance, during the course of a typical day, I and my students would add just enough fuel for the next flight. This fuel would then be taken from a tank on the back of a trailer, towed by a quad bike. This fuel tank is equipped with a litre counter.
The flight sheets are not always filled out just prior to and at the completion of the flight. They are often taken from the “Flight Authorisation Sheet” which is signed by the student and instructor prior to the flight, and includes the engine and maintenance release time for the flight. The Flight Authorisation Sheet does not have details of the fuel load.
The Flight Sheets that appear to have been used in these calculations may well be inaccurate. The fuel amounts are not recorded for weight and balance purposes but to record fuel usage of the helicopter to ensure that its fuel burn is constantly monitored. As a consequence, the fuel added over the course of the day is correct, however each individual amount may not be recorded at the time of adding fuel, i.e. if I or a student added 10 or 20 L to the helicopter prior to a flight. At the end of the day I would see that, for example 100 litres may have gone into the helicopter over a 3.3 hours engine time. This would give fuel burnt of 33.3 L per hour.
34.The problem with what Mr Wotherspoon said is that without recording the fuel on board at the start of each flight, it is simply not possible to know the weight of the aircraft at the commencement of each flight. That weight is critical both for determining whether the aircraft is below MTOW and within the C of G limits. The purpose for recording fuel at the start of each flight is not simply, as Mr Wotherspoon suggests, for corroborating the Operations Manual statement about average fuel burn. That has already been decided and accepted by CASA and is used for flight planning purposes. It may also be used as a means of monitoring fuel consumption to ensure that there are no significant variations which may require later investigation.

WEIGHT AND BALANCE

35.Knowing the weight of the aircraft on take-off for a particular flight and whether the load is within the C of G tolerances can be critical because of its effect on flight controls. That requires the pilot in command to know, precisely, the weight of fuel he has on board for a particular flight as well as an accurate weight of the persons on board. While large commercial aircraft are permitted to use accepted average weights for passengers, the very limited nature of the weight carrying capacity of a R22 demands that an accurate weight of the pilot and student, if there is one, are known at the start of the flight. It is not sufficient to simply ask people what their weight is because, as is reasonably well understood, a person’s weight can vary considerably over even a relatively short period of time. Relying on the weight disclosed at the last medical examination is unacceptable in the case of the R22. I accept entirely what Mr Graham said in his first witness statement, where he explained at paragraph 30:

Centre of gravity limitations for helicopters are established primarily due to physical and mechanical limitations on the helicopters’ control system. If the centre of gravity of the helicopter is outside these limits, the helicopters flight control system may not be able to provide full mechanical and aerodynamic controllability of the helicopter throughout its certified flight envelope, in both normal and emergency situations. An example of this situation would be, with a centre of gravity forward of the applicable limit during entry to autorotation following an engine failure or related emergency. The pilot’s actions and aerodynamics during entry to autorotation cause the helicopter to adopt a nose down attitude. In order to ensure successful entry and establishment of autorotation, the pilot must apply aft cyclic in order to arrest and control the helicopters attitude. A centre of gravity which is forward of the applicable limit would result in a mean cyclic position which is further aft for a given attitude, and in this situation the pilot may ‘run out’ of aft cyclic control, meaning the control system has reached its mechanical limit, and no further control input is available to arrest the nose down attitude, resulting in an accelerating descent and ultimately an uncontrolled crash landing.
36.As far as exceeding MTOW limits is concerned, Mr Graham said, at paragraph 31:

Operating a helicopter in excess of maximum gross weight causes safety implications as it affects the take-off and landing performance of the aircraft. It can also affect the structural integrity of the aircraft landing gear, airframe and drive system, affect the rotor RPM in autorotation, and the configuration and positioning of critical flight control system components during an autorotative landing.
37.Plainly, accurate calculations of weight and the positioning of that weight in an aircraft which has significant weight limitations, is essential for its safe operation. It is inadequate to simply estimate the weight of an aircraft prior to take-off in these circumstances. That is what Mr Wotherspoon has effectively done on the flights mentioned. In fact he has described the aircraft as feeling nose heavy on some of those flights, indicating that the aircraft was outside of its C of G limits. While Mr Wotherspoon might have been lucky and not had an engine malfunction in the course of any such flight, had there been a mechanical malfunction, he would probably have been very fortunate to have survived.
38.That is undoubtedly why the Operations Manual at A4.3 stipulates that on flights where weight is critical, which would be for most flights in an R22 where there are two persons on board, scales must be used to weigh those persons intending to fly and an accurate fuel reading must be available prior to commencing the flight.
39.In his written statement dated 27 May 2015 Mr Wotherspoon suggested that the weights used by CASA were deliberately inflated to discredit him for the commercial gain of his so-called accuser. He then said that his weight was 90 kg at that time and not the 95 kg attributed to him. However, nowhere did Mr Wotherspoon suggest that he weighed himself immediately prior to taking any particular flight that has been questioned. In other words, he was simply guessing his own weight. Similarly, Mr Wotherspoon said that he rang Mr Pitt on 22 May 2015 when he was told that at no time did Mr Pitt declare his weight to anyone else and that his weight at the time and during the training flights was
97 kg. Again, without somebody putting Mr Pitt on a set of scales prior to the flight, his opinion about his weight at that time and later is of no value at all in these circumstances.
40.Likewise, Mr Wotherspoon said that he had a telephone conversation with Mr Trigg who confirmed that his weight was 80 kg and not the 90 kg used by CASA. He claimed that statements made by his former employer were slanderous and untrue. With respect to Mr Wotherspoon, Mr Trigg simply stating that he was 80 kg at the relevant time is, again, simply an opinion and also a self-serving statement. It carries very little weight in this Tribunal. That is particularly so when the Operations Manual expressly states that scales must be used where weight is likely to be close to MTOW.
41.Mr Graham did a C of G calculation on each of the ten flights which caused CASA concern. His calculations were based on both the forward doors being removed which resulted in a reduction in the all up weight of 4.72 kg. He based Mr Wotherspoon’s weight (98 kg) on his aviation medical examination conducted on 27 January 2015. As for the students on those flights, he allowed 100 kg for Mr Brown which was the weight given to CASA on its investigation by Mr Cole, a relief flight instructor, and 100 kg for Mr Pitt which was taken from his aviation medical records (actually 103 kg but 100 kg allowed given that the aviation medical was some 12 months old). Mr Graham also took into account a fixed fuel reserve of 20 minutes in accordance with CAAP 243-1(1). In order to obtain the fuel on board the start of each flight Mr Graham used the flight time recorded on each flight multiplied by 35 L per hour which was the accepted consumption rate on the R22 and added 20 minutes fixed reserve fuel.
42.Using the assumptions I have referred to above, Mr Graham conceded that all of the flights of concern were found to be below maximum take-off weight. However, Mr Graham noted that the problem was that if the fuel figures contained on the VH-PUM trip sheets were correct, and fuel was carried in accordance with the JamCo Operations Manual, then except for three flights, when no fuel figures were listed, the weight on each of the remaining flights exceeded the maximum take-off weight. Because there was considerable doubt about the accuracy of fuel figures, Mr Graham disregarded the fuel figures entered on VH-PUM’s trip sheets. Based on the minimum possible fuel being loaded on the ten trips in question, Mr Graham determined that the C of G was forward of the allowable limit for the duration of each of those flights. I had in evidence a plot on the C of G charts for the aircraft which confirmed what Mr Graham found.
43.In his second witness statement dated 14 October 2016 Mr Graham said that he contacted both Mr Brown and Mr Pitt in order to confirm their body weight at the relevant times. Mr Brown apparently said that to the best of his recollection, his body weight was between 95 and 100 kg. Mr Pitt said he believed his weight was between 87 and 90 kg during that period but Mr Graham noted that his medical examination conducted on 12 February 2014 recorded his weight at 103 kg and his medical on 10 March 2016 recorded his weight at 109 kg. Using a weight of 95 kg for Mr Brown, Mr Graeme recalculated C of G for each flight involving Mr Brown and noted that the C of G was forward of allowable limits. He also recalculated the figure for Mr Pitt’s flights using a weight of 87 kg. That brought the C of G on those flights just inside limits. He also noted that that he assumed both doors were removed for each of those flights. Mr Graham also contacted Mr Colin Clarke, the current HOO for JamCo, who said he recalled Mr Pitt’s weight being between 105 and 110 kg and no less than 100 kg of the flight on 3 July 2015. Mr Clarke conducted that flight with Mr Pitt in a Robinson R44 helicopter rather than the R22 due to weight and balance restrictions.
44.The evidence I have referred to above leads me to find that Mr Wotherspoon failed to comply with Operations Manual requirements regarding flight record sheets and in particular the fuel on board the aircraft on many occasions, not only those flights questioned by CASA. Mr Wotherspoon effectively admitted as much in his oral evidence. Furthermore, I find Mr Wotherspoon was aware of the critical weight limitations imposed by the maximum take-off weight and C of G limits of the R22 helicopter, particularly when two persons were on board. Mr Wotherspoon was aware that the Operations Manual mandated the use of scales to weigh passengers on what the Manual defines as fuel critical flights. He failed to do so. Relying simply on what was told to him by his passenger was not only inadequate, it was also potentially dangerous. It also appears that Mr Wotherspoon did not use the C of G charts in order to determine whether the aircraft was within limits. He referred to simply feeling that the aircraft was slightly nose heavy on some flights. In doing so, Mr Wotherspoon breached subsection A1.4.10.2 of the Operations Manual.
45.CAR 138(1) provides that where a flight manual has been issued for an Australian aircraft, the pilot in command must comply with a requirement, instruction, procedure or limitation concerning the operation of the aircraft set out in the manual. Given the findings I have made above regarding exceeding the MTOW of the R22 helicopter on a number of occasions and his failure to use the flight manual in calculating the C of G, Mr Wotherspoon has breached CAR 138(1). Furthermore, CAR 215(9) provides:

Each member of the operations personnel of an operator shall comply with all instructions contained in the operations manual in so far as they relate to his or her duties or activities.
46.I find that Mr Wotherspoon has on a number of occasions breached CAR 215(9). I also find that Mr Wotherspoon was in breach of CAR 220 which requires the pilot in command to record fuel remaining in the tanks of an aircraft at the end of each scheduled flight.

BREACH OF DUTY AS A FLIGHT INSTRUCTOR

47.Because the flight instructor in any organisation is the first contact that a student pilot has with the regulatory requirements which must be followed to ensure the safe operation of aircraft, what a student observes in the course of instruction often sets the pattern of behaviour of that student in the future. It is particularly for that reason that the flight instructor must set a scrupulous example of conducting every training flight in accordance with all regulatory requirements.
48.Unfortunately, Mr Wotherspoon’s conduct as flight instructor and Chief Pilot and Chief Flying Instructor, particularly in a seriously weight limited aircraft such as the R22 helicopter, has fallen short of the standards demanded of him. In his closing submissions Mr Wotherspoon said that he was unable to say why he did not do C of G calculations on every flight. As to not keeping accurate fuel records, he simply said I overlooked it. With respect to Mr Wotherspoon, that is unsatisfactory. I have no doubt that Mr Wotherspoon was under some commercial pressure to get the job done but it is particularly in such circumstances where a flight instructor must not waver from compliance with all regulatory requirements. I find Mr Wotherspoon failed in his duty as a flight instructor
49.It follows I must find that Mr Wotherspoon’s conduct in relation to flight training operations on the R22 helicopter attracted the variation, suspension or cancellation provisions set out in CAR 269(1)(a) and ©. He has contravened provisions in the CARs and has failed in his duty regarding the safe navigation or operation of an aircraft. In my opinion, a six-month suspension of Mr Wotherspoon’s Flight Instructor Rating followed by a flight test was the appropriate sanction.

APPOINTMENT AS HEAD OF OPERATIONS

50.The HOO of a Part 141 operator is one of its key personnel. Without that person, the Part 141 operator commits an offence if it carries out pilot flight training (Reg 141.110). The responsibilities of the HOO are extensive and are set out in Reg 141.130 of the CASR. Amongst those numerous responsibilities are the following1) The head of operations of a Part 141 operator must safely manage the operator’s authorised Part 141 flight training.
(2) Without limiting the subregulation (1), the responsibilities of the head of operations include the following:
...

(b) monitoring and maintaining, and reporting to the Chief Executive Officer on, the operator’s compliance with the provisions of civil aviation legislation and the operator’s operations manual that applied to the training;
© setting and maintaining the operator’s standards for the training in accordance with the operator’s operations manual;...
51.Although not stated in the Act or Regulations, it is important that the HOO has the confidence of CASA to ensure that the training organisation complies strictly with all legislative requirements. That is because CASA simply does not have the resources to oversee all training organisations on a continuous basis. Without that confidence, CASA would likely compromise its statutory duty under s. 9A of the Civil Aviation Act 1988. It must regard the safety of air navigation as the most important consideration.
52.Mr Wotherspoon’s conduct as the CP and CFI of JamCo does not give me confidence, on the material before me on this occasion, that Mr Wotherspoon can be relied upon to comply strictly with all aviation regulations without concern for his own position within an organisation should such insistence be viewed negatively. Mr Wotherspoon suggested that in a large organisation such as the one currently seeking his services in the position of HOO, he would have other individuals who would oversee his performance. With respect, that may or may not be the case and in any event, it is beside the point. Although Mr Wotherspoon also submitted that he had no previous reports regarding incidents or accidents in his quite lengthy flying career, that is also beside the point.
53.Mr Wotherspoon’s conduct as I have described above must give rise to serious concerns as to whether he meets the requirement set out in s. 141.060 of the CASR. In particular, I find that he is not a fit and proper person to be appointed to the position of HOO.

CONCLUSION

54.I have found that when Mr Wotherspoon was the CP and CFI of JamCo, he breached a number of regulatory provisions in the CAR. Those breaches were serious as they could have resulted in a catastrophic accident. Furthermore, Mr Wotherspoon must have been aware that he had breached aviation regulations.
55.Therefore, I find that the decision made by CASA on 21 April 2016 to suspend his Flight Instructor Rating for a period of six months and that he pass a flight test for the issue of a Flight Instructor Rating was the preferable decision. Furthermore, I find that CASA’s decision set out in its letter of 4 November 2015 to refuse the appointment of Mr Wotherspoon as HOO for The Experiences Group was the correct decision. I affirm both decisions.

Again pardon my ignorance as rotary wing is not my area but there is a couple of points with this case that I find a little peculiar.

Q1/ How much realistically will the CoG move fwd or aft in a two seater aircraft where the fuel tanks appear to be centrally located?

Q2/ If the supposed contraventions of the regulations were so serious that there was a serious risk of 'catastrophic failure', why was Mr Wotherspoon merely slapped on the wrist with a six month suspension of his flight instructor rating?

Maybe I am missing something - so 'please explain'? Someone? Anyone?

MTF...P2

[Kharon]

Bizarre? Certainly – however.

P2 – “Maybe I am missing something - so 'please explain'? Someone? Anyone?”

The big question, as I understand it, is why did CASA not ‘do ‘im’ when he was CP of the previous company? The other side of the coin is the disparity the case raises between this and other cases. The lack of ‘consistency’ in CASA decisions.

This event managed properly by CASA from the first round,  would never have gotten up. However, P2 throws down the gauntlet (MTF on that). This comes back to independent, subjective judgement – after no corrective has been taken in the first event. Why wait for the tenth event? A stitch in time and all that. But that’s our CASA; and well off topic (for today at least)....

My sum total of knowledge ‘Helicopter’ operations’ can be written on the back of a postage stamp; however, chopper or fixed wing the principals involved are very similar. I think the defence was very poorly managed in this case, primarily because it fell into every trap set for it after this:-

10.Maitland Lawyers, acting for Mr Wotherspoon, responded to the show cause notice in a letter dated 16 December 2015. Mr Wotherspoon also attended a show cause conference on 8 February 2016 and was given the opportunity to expand upon his written response. After considering Mr Wotherspoon’s response to the show cause notice and the discussions held during the show cause conference, CASA determined that his conduct did not warrant any action being taken against his ATPL or CPL, however it was serious enough to warrant suspension of his Flight Instructor Rating.

Led to this:-

55.Therefore, I find that the decision made by CASA on 21 April 2016 to suspend his Flight Instructor Rating for a period of six months and that he pass a flight test for the issue of a Flight Instructor Rating was the preferable decision. Furthermore, I find that CASA’s decision set out in its letter of 4 November 2015 to refuse the appointment of Mr Wotherspoon as HOO for The Experiences Group was the correct decision. I affirm both decisions.

This chap was lucky and unlucky: reading through the thing and knowing how CASA operate; I believe my advice would be to shut up, cop the suspension, show rehabilitation and contrition and start again, he may have even been granted a reprieve after three months and the approval after that. The company was lucky because it could have escalated into the AOC being pulled and the CP up to his arse in alligators. He was unlucky in that the margins are so difficult to prove or; disprove. However the ‘law’ don’t care if it’s a 2 Kg overload or 100 Kg. MTOW 600 Kg, weighed in at 601; you are in breach. Sure it’s daft – but that’s where the line is drawn. CASA would be given the benefit of doubt, simply because they are ‘the authority’ – right or wrong – that’s how it is.

Two points of interest, the primary being that the AOC is under threat, the second that the CP is in the gun. Clearly, the radical is failure to comply with the operations manual – as writ; but the second is that no one has been monitoring the performance of crew against that manual. We have alleged multiple breeches of 202 mentioned here; now then, a CP with a finger on the pulse should spot repetitive incorrectly filled out flight logs.  The culprit invited to ‘tea and biccies’ and left in no doubt that this is unacceptable as, potentially, it jeopardises the AOC. This conversation should be noted; Bollocked Bloggs 13 March – flight log details not correctly complete; briefed him on the company requirements and provided a training session on how it was to be done. The record should also reflect that the CP actively monitored the Bloggs performance of same. There everyone off the hook. There are two ways to prepare an operations manual; it reflects ‘what you really do’ and justifies that doing; or, it is to be used to keep the door open on a hot day.

Reading through you can see why there is concern – the aircraft is weight critical – and if it is to be operated ‘legally’ then attention must be paid to the AFM weight limitations and Fuel on Board (FoB). If the weight is so critical; then the aircraft must be fitted with better equipment than the fuel tank gauge. This does not have to be whizz-bang electronics; a clear plastic sight tube and fuselage quantity markings would suffice; primitive but effective: or, you could arrive at agreed consumption rates for say training and en-route with the CASA, then use flight time to determine the FoB remaining. 66 Kg FoB departure – 20 minutes circuits @ 66  KpH = 22 Kg: fixed it: FoB landing = 66-22 = 44 Kg. The ‘weight’ problem is simply dealt with – if you are legally ‘critical’ to almost the Kg; weigh the bloke, with kit as he stands prior to boarding. Flight schools used to have a ‘sign out’ sheet – where the CFI would initial each operation – so the record for the day would show: Student – Smith – Instructor Jones – Circuit training – VH ABC – BOW 300 Kg – POB 2 – Weight 180 Kg – FoB (out) 60 Kg - GW 540 Kg- FoB (in) XXXX.  The flight log does the same and with the fuel docket # recorded takes away any argument. There, all legal and bullet proof, provided you do it: a simple line on the daily flight schedule sheet. Yes; it is a royal pain in the arse; but so is loosing the AOC, or having the CP dragged into the AAT; or, having a suspension imposed. Lawyers prosecuting will split every hair – you need to get there first. If you believe no one gives a toss whether there was a 10 Kg ‘overload’ or not; then take a trip to a coroners court; or, better still, watch the insurance company guys go at it – after an accident – to the last drop of blood. That: is a lot more trouble than making sure the SOP are not only complied with – but that you can prove that SOP was complied with.

We all do it; a shave here, a tweek there; but you need to be able disprove any accusation. You only need to read through the case above to realise that if it is in the Ops manual; you must comply. A CP who allows his troops to ‘stray’ bets the whole pile come show time. The trick (for want of better) is to get the SOP to reflect what actually happens, getting that ‘accepted’ and sticking to it. CASA do have a job to do; but why make it easy for them? Remember; they are not allowed to turn a blind eye; and that, boys and girls, is the reality. You may well be the best damn pilot in the land and pull off an incredible save of life and machine – but it will be the paper work that is used to hang you.

Toot – ever so slightly bemused – toot. + MTF.