Administrative Appeals Tribunal of Australia|2012-04-27

The applicant, Walter Omer Jonathan Johanson, is an experienced pilot who has had extensive experience building and flying experimental and sport aircraft, including test flying such aircraft. He has a number of distinguished achievements in long-distance solo flights, to which I will refer below.
In December 2008, the respondent, the Civil Aviation Safety Authority (CASA), served a notice on Mr Johanson asking him to show cause why his flight crew licences should not be varied, suspended or cancelled on the basis of facts and circumstances set out in the notice, arising from six separate incidents that occurred in 2008 and were alleged to involve breaches of the Civil Aviation Regulations 1988 (Cth) (CAR). The process that followed that notice resulted in a decision by a delegate of CASA to issue five infringement notices under the CAR in respect of Mr Johanson's having committed certain strict liability offences under the Civil Aviation Act 1988 (Cth) (CA Act) and the CAR. After indicating initially, through his solicitors, that he would contest CASA's allegations, Mr Johanson paid the amounts referred to in the relevant infringement notices.
A further incident involving Mr Johanson occurred on 19 January 2010, when he landed his aircraft at Parafield Airport after last light. This resulted in a further show cause notice being issued on 5 May 2010, which related not only to his conduct on 19 January 2010, but also to the matters referred to in the previous show cause notice. I shall refer below to the details of this incident, and the conduct of Mr Johanson which CASA asserts constituted contraventions of the CA Act and the CAR.
The process initiated by the show cause notice of 5 May 2010 resulted in CASA sending Mr Johanson a letter dated 12 August 2010, advising him of a decision by a delegate of CASA to cancel all of Mr Johanson's flight crew licences on the grounds set out in CAR 269(1)(c) and (d). Mr Johanson applied to this tribunal for a review of the decision that had been communicated to him.

"... the following actions be taken in respect of Mr Johanson's flight crew licences:

(a) cancel Mr Johanson's Flight Crew Licences (ARN 137649); until such time as the following requirements have been met:

Eighteen months have elapsed since the commencement of the suspension; and

Mr Johanson has successfully undertaken and passed a flight test ..." (exhibit R51(a), T92, page 393).

The recommendation included two alternative boxes, either to agree or to disagree with the recommendation. Mr Hood completed and signed the box that indicated that he agreed with the recommendation, and dated it 9 August 2010 (exhibit 51(a), T99, page 432).

Under CAR 269(1), CASA may vary, suspend or cancel a licence, certificate, approval or authority where CASA is satisfied that one or more of a number of specified grounds exist. The grounds relied upon by CASA in the present matter are those in CAR 269(1)(c) and (d), which provide as follows:

"(c) that the holder of the authorisation has failed in his or her duty with respect to any matter affecting the safe navigation or operation of an aircraft;

(d) that the holder of the authorisation is not a fit and proper person to have the responsibilities and exercise and perform the functions and duties of a holder of such an authorisation;".

The issues before the tribunal are:
- (a) what is the relevance of the inconsistency between the recommendation with which Mr Hood agreed on 9 August 2010 (entailing a recommended suspension of the licences for 18 months) and the letter to Mr Johanson of 12 August 2010 (advising that Mr Hood had decided to cancel the licences);
- (b) can this tribunal, standing in the shoes of CASA, take into account further facts and circumstances that were not included in the show cause notices given to Mr Johanson;
- (c) whether the penalty for proven contraventions should be fixed by reference to the demerit points regime, or pursuant to the power to vary, suspend or cancel licences under CAR 269(1);
- (d) whether I am satisfied that either or both of the grounds referred to in CAR 269(1)(c) and (d) exist; and
- (e) if so, whether Mr Johanson's licences should be varied, suspended or cancelled.

The following background facts are not in contention, and are based on the evidence of Mr Johanson and documentary evidence before me.
Mr Johanson is 55 years of age. He worked as a carpenter's apprentice when he left school, and became interested in aviation. He commenced flying lessons in 1976. He obtained a private pilot (aeroplane) licence and a flight radiotelephone operator licence in 1978.
Soon after he attained his pilot's licence there was a down-turn in the construction industry, and he studied to become a nurse. However, he maintained his interest in flying, and obtained a commercial pilot licence in 1988, and an air transport pilot licence in 1993. He has more than 8,000 hours experience as a pilot. He obtained command and instrument flying ratings in 1987 and 2001 respectively, and achieved a number of further endorsements and other qualifications which are listed in the show cause notice dated 5 May 2010.
In or about 1990 Mr Johanson decided to build an aircraft which he had purchased in kit form. He proceeded to build it, and a permit to fly it was issued in January 1992. He subsequently embarked on a series of long-distance flights. He flew solo in his home-built aircraft around the world three times, and over the North and South Poles. These flights are included in a most remarkable list of highlights of world first achievements and world speed records listed in exhibit A1. This exhibit also lists various awards he has received over many years, including the 2004 Gold Medal from the Federation Aeronautique Internationale. He describes this as the world's highest aviation award, and said that only three Australians had previously achieved it, including Bert Hinkler in 1928.
He subsequently wrote a book entitled "Aiming High" which contains a narrative of his flying experience and achievements. This was published in 1997. CASA has referred to certain excerpts from this book, to which I will refer below, to further support its contention that CAR 269(1)(c) and (d) are satisfied.
Mr Johanson also established a business, Flymore Pty Ltd, to act as the agent in Australia of aircraft designed in America by one Richard VanGrunsven, which are exported to Australia in kit form, and known as RV sports aircraft. Flymore Pty Ltd is also the Australasian service centre and distributor of certain aircraft parts manufactured in the USA. Prior to the cancellation of his licences Mr Johanson was commonly employed to do the Phase 1 testing of RV aircraft after they had been assembled by purchasers in Australia. He also assisted people to fit parts into their aircraft, and undertook delivery flights.
In 2008 the business was being conducted at a hanger at the Goolwa Airport, in association with three other businesses, some of which purchased parts from Flymore Pty Ltd. Mr Johanson or his company had a lease from the owner of the airport, one Geoffrey Eastwood. In common with other leases, Mr Johanson's lease included an option to purchase the hanger, subject to approval to a subdivision. He decided to exercise the option, but in about mid-2008, a dispute arose with Mr Eastwood as to the terms of the easement that would apply if the subdivision proceeded. The dispute became heated, and the police became involved. Mr Eastwood obtained a restraining order, but this was later discharged on Mr Johanson's application. Mr Johanson later vacated the premises at Goolwa Airport, and moved Flymore Pty Ltd's operations to Dutton, in the Barossa Valley.
As mentioned above, Mr Johanson was involved in certain incidents in 2008 that culminated in CASA issuing five infringement notices. As a result of paying the amounts referred to in these notices, he incurred 13 demerit points, and in accordance with s 30DY of the CA Act, his flight crew licences, endorsements and ratings were suspended for a period of 90 days. CASA notified him that this suspension would operate from 1 January to 31 March 2010.
Late in 2009 Mr Johanson cancelled the registration of his aircraft with CASA with effect from 4 January 2010, and on 12 January 2010, registered it with Recreation Aviation Australia (RAAus). He then continued to fly the aircraft using his RAAus pilot's certificate and the RAAus registration for the aircraft. After the expiration of the period of suspension arising from the five infringement notices he re-registered the aircraft with CASA as VH-NOJ.
In its letter to Mr Johanson of 12 August 2010 advising of the cancellation of his flight crew licences, CASA advised him of his right of review by this tribunal. The letter concluded:

"My decision is subject to an automatic day (sic) of 5 business days. A further stay of my decision will apply only if you make an application to the Administrative Appeals Tribunal to review my decision and seek a stay of it within five business days after the day you receive this letter. I attach, for information, a document titled "Automatic Stay Notice" and "Notice of Review of Rights" advising generally in relation to the commencement of any such proceedings. The attached notice is not provided by way of procedural or legal advice. You should seek and rely upon your own legal advice in relation to your rights of review." (exhibit A2(a), final page)

Mr Johanson, by his solicitors, lodged an application for review of CASA's decision on 26 August 2010, but did not lodge an application for a stay of the decision until 8 June 2011. He then admitted to having flown his aircraft on at least one occasion in the meantime, but said that he had mistakenly believed that he was entitled to do so pending the determination of his application to this tribunal for review of CASA's decision.
The application for a stay was heard on 17 June 2011. On that date, I granted a stay, subject to certain conditions, with effect from 24 June 2011 until 12 August 2011, on the basis there would be an early hearing of the matter to commence on 9 August 2011. It later became necessary to vacate the early hearing date fixed, and Mr Johanson did not apply to extend the stay. There is no evidence that he has flown an aircraft since the expiration of the stay on 12 August 2011.

Counsel for Mr Johanson, Mr Nigel Winter, pointed out that CASA had seen fit to deal with the incidents that occurred in 2008 by means of the five infringement notices. He also drew attention to certain communications within CASA which indicated that one Greg Vaughan, who was then employed by CASA as its General Manager Regulatory Implementation Group, had thought it appropriate to take a more lenient view of the 2008 incidents and had recommended that only three infringement notices should be issued, and that this would be an "appropriate and balanced" penalty (see exhibit R1, T50, page 386). Mr Winter also referred to a minute dated 3 July 2009 from the Manager, Enforcement Policy and Practice of CASA (exhibit A15) which explained that the investigation into the 2008 incidents in question had been given a low priority in the latest classification of operations "given that Mr Johanson is an experienced pilot and not a major safety risk" (exhibit A15, page 6). Mr Winter submitted that it was apparent that CASA had not viewed the alleged 2008 offences as serious matters, and that I should view them in the same way.
He further contended that a number of the contraventions alleged by CASA to have occurred on 19 January 2010 had not been proved, that the circumstances of that incident were such that an expiation notice was the appropriate penalty for any contraventions of the CAR or CA Act committed on that date, and that Mr Johanson's flight crew licences should not have been cancelled because the grounds referred to in CAR 269(1)(c) and (d) did not exist.
In the alternative, Mr Winter contended that Mr Hood's reviewable decision was not the decision advised to Mr Johanson in the letter of 12 August 2010, that is, to cancel his licences, but rather Mr Hood's acceptance of the recommendation to the effect that the licences should be suspended for 18 months.
Counsel for CASA, Miss Elenne Ford, submitted that the reviewable decision was to cancel the licences, and that that decision should be affirmed. She drew my attention to the terms of CASA's letter of 25 June 2009, in which Mr Johanson was informed of CASA's decision with respect to the 2008 events. She pointed out that this letter advised that CASA was concerned that Mr Johanson should consider that his personal judgment as to what was necessary and appropriate in the interests of safety might "properly override the demonstrably safety-related requirements of the civil aviation legislation", and concluded with the warning:

"You should not take my decision to counsel you, rather than to vary, suspend or cancel your flight crew licences, to mean that I take these matters lightly, or that I do not expect that you will reflect on them seriously and govern yourself accordingly in the future.

If you should come to CASA's attention again in circumstances in respect of which the matters addressed here may fairly be regarded as relevant, be assured that these issues will be taken into account in the determination of such action as CASA may take." (exhibit R1, T51, page 389)

Miss Ford submitted that Mr Johanson's actions during each of the incidents in 2008 and 2010 constituted a failure in his duty with respect to matters affecting the safe navigation or operation of an aircraft, and also that he was not a fit and proper person to hold the licences, and accordingly that I should be satisfied that each of the grounds referred to in regulation 269(1)(c) and (d) existed, and that CASA's decision to cancel Mr Johanson's flight crew licences was appropriate and should be affirmed. She also relied upon Mr Johanson's account of certain conduct described in his book "Aiming High". In addition, she referred to certain other alleged conduct not included in the show cause notices issued by CASA.
Both parties referred in detail to the six incidents that occurred in 2008, the incidents on 19 January 2010 and the circumstances surrounding those incidents, and made competing submissions in relation to what occurred, and to the relevance of the incidents to the grounds referred to in regulation 269(1)(c) and (d) of the CAR. I shall refer below to each of these incidents and the parties' submissions in relation to them.

As mentioned above, there is a dispute as to whether the reviewable decision was Mr Hood's agreement to the recommended suspension of the flight crew licences for 18 months, or the decision conveyed in the letter to Mr Johanson of 12 August 2010 that Mr Hood had decided to cancel the licences. Mr Winter requested that Mr Hood give evidence in order to explain the discrepancy. I decided that this was not necessary. I consider that Mr Hood's action in completing and signing the "Agreed" box is evidence that Mr Hood made a decision in terms of the recommendation. However, that position is not entirely clear; a draft letter to Mr Johanson was annexed to the recommendation, and this incorporated advice of a decision to cancel his licences, and the letter was in the same terms as the letter dated 12 August 2010 which was subsequently sent to him.
I do not think that Mr Hood was precluded by his acceptance of the recommended penalty from varying his decision as to the appropriate sanction, or communicating his varied decision to Mr Johanson. As a general rule, an administrative decision-maker exhausts his or her statutory function after the power to make the decision has been exercised, and subject to the relevant empowering legislation, the decision-maker cannot revisit the decision; the decision-maker is functus officio: Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597 at [6] - [8]. Whilst the CAR does not authorise CASA to re-open a decision made under CAR 269(1), I think that the general principle should not necessarily apply if there is some inherent ambiguity in the decision that was made (as appears to be the position in the present case because of the discordance between the recommendation and the draft letter attached to it), and that in those circumstances the decision-maker should be able to resolve that ambiguity. Further, it has been held that an administrative decision is provisional, and has not been perfected so as to be an effective and final decision, until it has been communicated to the person(s) to whom the decision relates: Goulding v Chief Executive, Ministry of Fisheries [2003] NZCA 244; (2004) 3 NZLR 173 at [26] - [30], [43]. This possible proviso to the doctrine of functus officio no doubt depends on whether the relevant legislation requires the decision to be communicated to those affected by the decision (Pongrass Group Operations Pty Ltd v Minister for Planning [2007] NSWLEC 638 at [26] and [33]), but in the present matter, it is clear that CASA would be required to notify the holders of the licences, certificates or other authorities of decisions made under CAR 269(1). I think that it was therefore competent for Mr Hood to have arrived at a different decision at any time before the decision resulting from his earlier agreement to the recommendation was communicated to Mr Johanson. The inconsistency between the two potential outcomes is most unfortunate, but having regard to the terms of the decision referred to in the draft letter that accompanied the recommendation, as well as the above proviso to the doctrine of functus officio, I think that the better view is that the reviewable decision was the decision communicated to Mr Johanson in the letter of 12 August 2010.
In any event, it is clear that Mr Hood made one or other of the decisions to which the parties have referred. In either case, I consider that he made a reviewable decision, and it is not essential to the outcome of the review by this tribunal to determine which of the potential decisions constituted the reviewable decision. That is because in reviewing a reviewable decision made by CASA, this tribunal may exercise all of the powers and discretions that are conferred by the CAR on CASA, and stands in CASA's shoes: Shi v Migration Agents Registration Authority [2008] HCA 31; (2008) 235 CLR 286. The tribunal must conduct a hearing de novo, that is, hear the matter afresh, and must arrive at the correct or preferable decision on the material before it, and not by reference to the material before CASA: Drake v Minster for Immigration and Ethnic Affairs (1979) 2 ALD 60, and Shi (supra). The focus of the review by this tribunal is not the correctness or otherwise of the decision under review, and there is no presumption that that decision is correct. Further, the decision-maker may seek to support the decision on grounds that are different from that upon which it was originally made, and equally an applicant may seek to have the decision set aside on grounds that are different from the grounds originally put to the decision-maker: Re Lavery and Registrar, Supreme Court (Qld) [No. 2] (1996) 23 AAR 52 at 56.
In considering the submissions of each party in relation to the matters raised by CASA, I bear in mind that proceedings in this tribunal are administrative proceedings, and where (as in the present matter) the relevant legislation does not impose, expressly or by implication, an onus of proof, neither party bears such an onus: Bushell v Repatriation Commission [1992] HCA 47; (1992) 175 CLR 408, at 425, per Brennan J. However, it remains necessary for a party asserting facts to adduce evidence which would support a finding by the tribunal that those facts exists: McDonald v Director-General of Social Security [1984] FCA 57; (1984) 1 FCR 354, at 358, per Woodward J. This proposition was clearly explained by SM Todd in Re Eckersley and Minister for Capital Territory (1979) 2 ALD 303, at [18], as follows:

"I think that this is an instance in which, while no general responsibility of proof rests upon an applicant in an application to the Tribunal for review ... yet, when either party to such an application raises a specific fact for consideration, a situation can arise in which the responsibility of proving the existence of that fact must be accepted as falling upon the party who asserts its existence, in particular where that fact is, or has been, peculiarly within his own knowledge."

The power to vary, suspend or cancel licences under CAR 269(1) arises where CASA is "satisfied" that one or more of the relevant grounds exists. Although there is no onus of proof, the requirement for CASA to be "satisfied" indicates that the standard of proof required is the civil standard: Repatriation Commission v Smith (1987) 15 FCR 327 at 335. To the extent that CASA is asserting that Mr Johanson's conduct constitutes a breach of the relevant legislation or regulations, I take into account the remarks of Dixon J (as he then was) in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 at 361-3, to the effect that when in civil proceedings, a question arises whether a crime has been committed, the standard of persuasion is the same as upon other civil issues, that is the balance of probabilities, but weight should be given to the presumption of innocence, and "exactness" of proof is required. His Honour said:

"Except upon criminal issues to be proved by the prosecution, it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters "reasonable satisfaction" should not be produced by inexact proofs, indefinite testimony, or indirect inferences."

In the same case, Latham CJ said succinctly, at 343 - 344:

"The standard of proof required by a cautious and responsible tribunal will naturally vary in accordance with the seriousness or importance of the issue."

After referring to Dixon J's remarks in Briginshaw, Branson, Sundberg and Dowsett JJ commented similarly that "(t)he seriousness of the matter in issue affects the process by which reasonable satisfaction is attained.": Rana v University of South Australia [2007] FCAFC 188, at [31]. It is well established that the standard of proof referred to in Briginshaw applies to proceedings in a wide range of matters where this tribunal has jurisdiction: see for example Repatriation Commission v Smith (supra); Re Mulligan and Civil Aviation Safety Authority [2006] AATA 652 at [97]; Re Weiss and Secretary, Department of Family and Community Services [2004] AATA 758; (2004) 83 ALD 706 at [36]; Hanna v Migration Agents Registration Authority [1999] FCA 1657; (1999) 94 FCR 358 at [20]; and Re De Brett Investments Pty Ltd and Australian Fisheries Management Authority and Anor [2004] AATA 704; (2004) 82 ALD 163.

The incident on 19 January 2010 - landing at Parafield after dark

I first consider the most recent incident referred to in the second show cause notice, being the notice dated 5 May 2010, which arose from Mr Johanson's actions when he landed at Parafield Airport after dark on 19 January 2010.
On or about 20 January 2010, CASA received an electronic safety incident report (ESIR) advising that an unidentified aircraft had approached Parafield Airport via Bonfire Hill and Warren Reservoir on the evening of 19 January 2010 which came into close proximity with two other aircraft that were engaged in conducting night circuit flying training in the Parafield circuit area. The ESIR advised that Adelaide Air Traffic Control (Adelaide ATC) had made three radio calls to the unidentified aircraft, but had received no response. The ESIR also indicated that the aircraft was not compliant with the requisite lowest safe altitude (LSALT) requirements. CASA investigated the matters referred to in the ESIR, and obtained evidence to which I will refer below that Mr Johanson was flying the unidentified aircraft referred to in the ESIR.
Mr Johanson's evidence as to this episode was as follows. On 19 January 2010, he flew from Narrandera in New South Wales to Parafield Airport to deliver an instrument which required repair. About 30-odd students needed the instrument to continue their activities at Narrandera, and there was some urgency to have it repaired and returned. The flight time to Parafield was usually about two and a half hours, and he realised when he left that he was "tight for time" (Transcript, 12.10.11, p 4, line 10), because he needed to arrive before last light. He was flying his aircraft VH-NQJ. His aircraft was fitted with a transponder (being a device that enables an aircraft to "squawk", that is, a 4 digit identification code is dialled into the device, and allows the aircraft to be "seen" by radar equipment and other aircraft). The transponder on his aircraft had broken down on a previous flight, because it was out by more than 1,000 feet. Mr Johanson could not recall whether the transponder was still in the aircraft or not, but if it was in the aircraft he had turned it off. He went through the South Para, Warren Reservoir area "comfortably before last light" (Transcript, 12.10.11, p 4, lines 29 and 30). As he approached Parafield he broadcast his intention to land. He received no response from other aircraft, but thought that this was not unusual because a number of students used Parafield for training, and in his experience they often did not respond to his broadcasts. When he was overhead Parafield Airport he saw three other aircraft. One had taken off and had turned right over the salt fields and was outside the circuit area. A second aircraft had just taken off but had not turned, and a third aircraft was on the base leg of the circuit ready to turn to land. He then continued to the west of the airport, descended in readiness to land, and landed in a southerly direction. By then the third aircraft he had seen had landed and taken off again, doing a touch and go exercise. After he landed he taxied to a hanger and was met by a person to whom he delivered the instrument. He then taxied back to the refuelling area. He was approached by a man who said he was an instructor, and that he (Mr Johanson) had not used his radio. Mr Johanson had previously had suspicions that his radio was not working as well as it should have been; he had tested it in flight and other people had said they were receiving his calls, but that they were not strong. He then made some basic checks of his radio and satisfied himself that it was working.
The parties agree that last light at Parafield on 19 January 2010 was at 8.59 pm local time. Mr Johanson gave evidence that he had no recollection of the time when he landed, although he knew that it was close to last light and getting dark. He had been licensed to fly at night for many years, but as mentioned above, his CASA flight crew licences had been suspended from 1 January to 31 March 2010 in consequence of the imposition of penalty points resulting from the 2008 events, and the RAAus registration of his aircraft only authorised him to fly it in daylight hours. However, he said that whether it was dark or not was irrelevant to him from the "practicalities" of flying an aircraft; the flying conditions were good, with no rain or cloud, and his aircraft had strobe lighting on the wing tips, landing lights and tail lights. He also said that when approaching Parafield Airport and landing, he maintained a constant lookout and ensured that his aircraft did not cause a danger to any other aircraft in the vicinity, and he had landed his aircraft at a time when it was safe to do so.
An air traffic controller based at Adelaide Airport, David Michael Eblen, gave evidence that he was on duty on the evening of 19 January 2010, and that the radar at Adelaide picked up the passage of an unidentified aircraft from about the South Para, Warren Reservoir area conducting an approach to Parafield Airport, and landing at approximately 9.25 pm local time. In his witness statement (exhibit R1, T72, page 531) he said that he made three radio calls to identify and communicate with the aircraft. The first call was at 10:47 UTC (that is, Coordinated Universal Time, which was 10½ hours behind Adelaide time), the second at 10:47.30 UTC, and the third at 10:47.45 UTC, and the words he used in each call are set out in paragraph 6 of his witness statement.
CASA tendered the radar recording showing aircraft over the vicinity of the Parafield Airport on 19 January 2010 during the period from 8.45 pm, being before last light, until 9.25 pm. This showed that only one aircraft approached Parafield from the east, and this was the unidentified aircraft which arrived over Parafield Airport at 9.23 pm local time, and landed at 9.25 pm local time, that is 26 minutes after last light. The radar footage further shows that when the unidentified aircraft approached Parafield, two other aircraft were in the vicinity, doing practice circuits. It also shows the altitude of the unidentified aircraft when it was within various areas or segments designated with a lowest safe altitude, being an altitude which is 1,000 feet above the highest obstacle within that segment. The radar recording fixed the altitude of the unidentified aircraft by reference to the transmission from its transponder. I am satisfied by the evidence of another air traffic controller, Gregory Kym Jamieson, that the transponder was very accurate.
Mr Johanson said that he had only one working radio in his aircraft, and he was switching between three frequencies as he approached Parafield Airport. He said that he did not hear any calls from Adelaide ATC, and did not respond to any such calls. He pointed out that on the evidence of Mr Eblen, the three calls broadcast from ATC were made within an interval of only 45 seconds, and he may have missed them while he was switching between the three channels. Mr Johanson also maintained that he made the appropriate radio calls before landing, and he was not aware until after he had landed that his radio was receiving but not transmitting; however, this evidence is contradicted by three references on the penultimate page of his "Summary of Evidence" statement (exhibit A1) where he says in effect that he became aware, on his approach to or in the vicinity of Parafield Airport, that his broadcasts were not being heard. He said further that the radio was working properly a short-time later, when he used it when taxiing to refuel, but over the next one or two months there were occasions when he suspected that his radio was not working properly, and so in April 2010 he spoke to a handyman friend, Simon Pike, about his radio and carried out certain checks that Mr Pike suggested. He said that notwithstanding this, he remained suspicious that his radio was not working properly, and on 20 July 2010 he saw Mr Pike at Temora, and Mr Pike checked the radio and cleaned the wiring and antenna connection. After that the radio appeared to work properly. Mr Pike gave evidence confirming that he had, in July 2010, attended to the matters referred to by Mr Johanson.
CASA also called evidence from the persons involved with the other two aircraft shown on the radar footage. The witness Andrew John Millard was supervising a student who was performing solo on night circuits at Parafield Airport on 19 January 2010. He was monitoring the radio channels at the airport, including Adelaide ATC, using a portable radio. He heard the attempts by Adelaide ATC to contact the unidentified aircraft. He went to the apron of the runway and observed an aircraft join the circuit from the east, go overhead to the west and then land. He had heard communications between his student's aircraft, another aircraft, a Tobago, which was also doing practice circuits with an instructor and two students on board, and Adelaide ATC, but did not hear any transmissions from the unidentified aircraft. After seeing the aircraft land he had a conversation with the person whom he assumed was the pilot, and whom he identified in the hearing room as Mr Johanson. In this conversation he said that Adelaide ATC had tried to contact an aircraft recently and was concerned that it was below radar LSALT after last light, and that a student had reported to him that an aircraft had entered the circuit without broadcasting on the Parafield Common Traffic Advisory Frequency (CTAF). He said that Mr Johanson responded by saying in effect that he had made "all (his) calls", and acknowledged that there were two other aircraft in the circuit during his arrival (exhibit R1, T64, at page 428). Mr Millard also recorded the RAAus registration mark, which identified the aircraft as Mr Johanson's.
Mr Millard's student, Daniel La Forgia, also gave evidence that he heard a radio transmission from ATC to the crew of the Tobago advising that an inbound aircraft appeared to be on a straight in approach on a very long final to runway 21, and that they had not made any radio communications, or responded to ATC's calls to them. Mr La Forgia noticed the approaching aircraft and saw it land, and then received a call from a female instructor in the Tobago aircraft requesting him to obtain the registration of the aircraft which had just landed. However, he was unable to so in the course of his touch and go manoeuvre.
The witness Caroline Elizabeth Disney, a flying instructor, was conducting night circuit lessons with two students, Timothy Mellor and Wang Fai Shum, in the Tobago. She received a radio traffic warning call from Adelaide ATC to the effect that there was an unidentified aircraft inbound from the dam wall, which was descending and going to be close to her aircraft. The Tobago continued with its descending turn on to base, and after receiving a further warning about the traffic which was converging, she observed the unidentified aircraft to be close, but the Tobago continued to make a descending turn on to final and with a touch and go landing. She then broadcast a call to the aircraft piloted by Mr La Forgia asking him to read the registration of the aircraft during his touch and go landing, and heard further calls from ATC requesting details of the unidentified aircraft. She then made a number of attempts to contact the unidentified aircraft on three channels, but received no reply. About two hours later she again observed the aircraft in question when it was taxiing, and recognised the pilot as Mr Johanson. She contacted the aircraft by radio, and Mr Johanson responded in effect that he had no problems. Later that night she contacted Adelaide Airport and informed them of her observations.
Ms Disney's two students, Wang Fai Shum and Timothy Mellor, were also called, and confirmed her evidence. Mr Mellor gave a more expansive account of Ms Disney's contact with Mr Johanson, from which it appeared that Mr Johanson agreed that he had come over the dam wall, but disputed that he had not made radio calls.
Further evidence relating to the radar recording was provided by the witness Robert Ian Wight, a flying operations inspector employed by CASA. He referred to CAR 174B(1) which relevantly prohibits an aircraft in the circumstances obtaining on 19 January 2010 from flying at night at a height less than 1,000 feet above the highest obstacle located within 10 miles of the aircraft if it is not necessary for take-off or landing. His witness statement (exhibit R1, T71, page 518) refers in paragraph 32 to the lowest safe altitude at various segments of the course taken by the unidentified aircraft as it approached Parafield aerodrome, and the altitude of the aircraft when it was within those segments. Mr Wight also referred in his witness statement to relevant regulations and their importance to the safe operation of aircraft.
CASA had previously alleged, in its show cause notice, its letter advising Mr Johanson of the cancellation of his flight crew licences, and its Statement of Facts, Issues and Contentions, that he had failed to "squawk" as his aircraft approached Parafield Airport, that is, that the transponder on his aircraft was not emitting a signal that would enable it to be "seen" by ATC and other aircraft in the vicinity of the airport. However, it was apparent from the radar footage that Mr Johanson's aircraft was fitted with an active transponder which was "squawking", and this allegation was not pursued.
CASA's final submissions were that on the basis of evidence that it identified, Mr Johanson's conduct on 19 January 2010 entailed the following contraventions.
- (a) He failed to respond to Air Traffic Control, contrary to CAR 100(1) (which imposed a penalty of 50 penalty units).
- (b) He failed to broadcast on the aircraft's radio, at about 10 nautical miles from the airport, that he was inbound to land at the airport, contrary to CAR 166A(3) (as then in force, which imposed a penalty of 25 penalty units).
- (c) As pilot in command of the aircraft, he flew it at night under the Visual Flight Rules (VFR) at a height of less than 1,000 feet above the highest obstacle located within 10 miles of the aircraft in flight, when this was not necessary for take-off or landing, contrary to CAR 174B(1) (which imposed a penalty of 25 penalty units).
- (d) He conducted part of the flight as pilot in command of the aircraft at night after the end of last light without the required rating, contrary to s 20AB of the CA Act.
- (e) He failed to record the flight on 19 January 2010 in his personal pilot log book, contrary to CAR 5.52(4) (which imposed a penalty of 10 penalty units).
- (f) By reason of the above failures, Mr Johanson operated his aircraft in a reckless manner, contrary to s 20A(2) of the CA Act.
I reject Mr Johanson's evidence as to the time of his arrival at Parafield Airport on 19 January 2010. The radar evidence clearly showed an aircraft approaching Parafield from the east, joining the circuit and landing. Ms Disney and Mr Millard both identified Mr Johanson as the pilot of the aircraft that had landed at 9.25 pm, as shown by the radar. This was well after last light, and I do not accept that this transgression occurred because he incorrectly estimated how long the flight would take. Notwithstanding these matters, Mr Johanson was not prepared to concede until the final day of the hearing that the aircraft depicted by the radar was his aircraft. He well knew that he was not to fly the aircraft after last light when it was registered with RAAus. I am satisfied that he deliberately chose not to use his radio in an endeavour to conceal the identity of his aircraft, knowing that he should not have been flying after daylight under his RAAus registration. Whilst I accept the evidence of Mr Pike that steps were taken to check the radio in July 2010 (and according to Mr Johanson, also in April that year), in either case there was a significant period of delay before he checked the radio. It seems implausible that if (as appears from Mr Johanson's own evidence) he was made aware that his radio calls had not been heard by others on 19 January 2010 he would have left it for so long before having his radio checked and repaired. Further, Ms Disney, who was called late in the hearing, said that the Parafield Airport is equipped with an aerodrome frequency response unit, which emits a beep in response to radio calls. Mr Johanson was recalled, and said that he could not recall hearing a beep back response, and there was a contest as to whether he was, or should have been, aware of the operation of the unit at Parafield on the night in question from his earlier knowledge of the airport. He also said, somewhat tentatively, that he might not in any event have been able to hear the responding beep because of the noise of his aircraft, but I do not accept that evidence. I find that if Mr Johanson had made calls but his radio did not work, he should have known that his transmission had not been received because he did not receive a beep back in response. I accordingly conclude that he did not have a reasonable excuse under CAR 166A(5) (as it then was) for his failure to broadcast.
A copy of Mr Johanson's personal log book was tendered (see exhibit R22). It covers the period from 9 December 2009 to 23 February 2010. There is no reference to flights from Narrandera to Parafield, or from Parafield to Narrandera, on 19 or 20 January 2010.
Mr Winter contended that Civil Aviation Order (CAO) 95.55.3.1 had the effect of exempting Mr Johanson's aircraft from a number of relevant CARs, including CAR 5.52(4) (re the objection to keep a personal log book), and CAR 157 (re low flying). However, CAO 95.55.5.1 makes the exemption subject to a number of "flight conditions", including sub-paragraph 5.1(h) which provides that the aircraft must only be flown during daylight hours. I do not accept Mr Winter's further contention that sub-paragraph 5.1(h) relates to the flight of the aircraft as opposed to the aircraft itself (being the subject of sub-paragraph 3.1), since the regulations that are the subject of the exemption conferred by sub-paragraph 3.1 refer in many cases to obligations with respect to flying the exempted aircraft.
The radar footage shows that Mr Johanson's aircraft was flying at below the lowest safe altitude depicted on the radar film as it approached Parafield Airport, and at some points, considerably below that altitude. Mr Winter contended that CASA had not led evidence of the height or location of the highest obstacles within the relevant 10 mile areas from Mr Johanson's aircraft, and so had not proved a contravention of CAR 174B(1). However, the radar film included a notation of the LSALT in each of a number of segments through which Mr Johanson's aircraft passed, and which were depicted on a terminal area chart. As mentioned above, Mr Wight gave evidence as to the altitude of the aircraft as it passed through the segments, after correctly recounting the terms of CAR 174B(1), including the distance of 10 nautical miles from the aircraft, being the distance referred to in that regulation. I think that I may rely on the presumption of regularity, and accept that the terminal area chart and the notations of the various LSALTs for each segment to which Mr Wight referred were correct. I do not accept Mr Winter's belated submission that the radar segments were referrable to a 25 nautical mile radius from Adelaide Airport (which is the distance referred to in a different legislative requirement imposed by Air Services Australia), or that this aspect of Mr Johanson's conduct should be excused because he believed that his transponder had been switched off, and he was flying below the LSALT imposed by CAR 174B(1) to avoid flying in controlled air space (being conduct which of itself entailed potential risks). However, I accept that the notification of the LSALT within each radar segment does not designate the highest obstacle beneath the track which the aircraft actually took, and as Mr Winter submitted, it has not been established that Mr Johanson failed to comply with CAR 157, which requires an aircraft to maintain an altitude of not less than 1,000 feet above a built up area. Nevertheless, that does not affect his breach of the duty imposed by CAR 174B(1).
Having regard to my findings in paragraphs 46 - 49 above, I am satisfied that Mr Johanson's conduct on 19 January 2010 involved the contraventions referred to in paragraph 45(a) - (e) above. I note that the show cause notice in respect of the events of 19 January 2010 also referred to a breach of CAR 308(3A) (as it then was), which provided that a person must not contravene a condition specified in an instrument of exemption, with a penalty of 50 penalty units. Mr Johanson conceded that by flying the aircraft after last light, he contravened the flight conditions of the CAR 308 exemption that applied to the aircraft, and so contravened that regulation.
CASA further alleges that by virtue of the above contraventions, Mr Johanson created a real risk to aviation safety to his and other aircraft and the general population under his flight path.
Mr Wight referred in his witness statement to the importance of mandatory radio communications between aircraft flight crew and ATC, and between aircraft flight crew, to enable all aircraft to gain situational awareness regarding other users of air space, and this would clearly have applied to the situation at Parafield Airport on the evening of 19 January 2010, where two aircraft containing trainee pilots were engaged in practice circuits. He also said that darkness considerably reduces the external visual references available to a pilot, and thereby makes the aircraft control and navigation more difficult (exhibit R1, T71, page 523). Ms Disney referred in her evidence to a concern that students become startled, and might become very nervous when receiving a call from a control tower advising of the approach of an unidentified aircraft which had not itself broadcast its situation or intention. She said it was not known how students would react to the unknown, especially when they are on a night circuit. She added that student pilots are less coordinated in handling aircraft when they are affected by stress, and she might have had to take over the controls and land for her students in such a situation, although on this occasion her student did very well and this was not necessary.
The show cause notice in respect of events on 19 January 2010 also referred to CAR 166(2), which (as it then was) relevantly required the pilot in command of an aircraft in the vicinity of a non-controlled aerodrome to maintain a look-out for other aerodrome traffic to avoid a collision, and to ensure that the aircraft did not cause a danger to other aircraft in the vicinity of the aerodrome. CASA did not assert a breach of this regulation (which involved a penalty of 25 penalty units) in its final submissions, although the show cause notice asserted a breach of CAR 166(2)(b). Having regard in particular to the considerations to which I referred in the preceding paragraph, I have concluded that Mr Johanson's conduct in not acknowledging the ATC, and in not making the appropriate broadcasts as he approached Parafield Airport or joined the circuit created risks to other aircraft in the vicinity of the aerodrome, in that his actions might have disconcerted the trainee pilots. I think that his conduct constituted a breach of CAR 166(2)(b), since the regulation requires a pilot to "ensure that the aircraft does not cause a danger to other aircraft ... in the vicinity" (emphasis added) of the aerodrome. In my view a pilot who creates a risk of danger would thereby contravene CAR 166(2)(b) whether or not actual danger ensued as a result of his or her conduct. I consider that a pilot who creates a risk of danger has thereby failed to "ensure" that he or she has not created a danger. In my opinion, the terminology of CAR 166(2)(b), and the central purpose of the CA Act and the CAR to promote and enhance safety, distinguishes the present case from Repatriation Commission v Thompson (1988) 44 FCR 20 at 23 - 24, where a Full Federal Court, when interpreting whether a veteran "incurred danger" differentiated between a risk of danger and being exposed, at risk of or in imperil of harm or injury. However, Ms Disney confirmed that her trainee coped with the situation, and Mr La Forgia acknowledged that Mr Johanson's aircraft did not affect his safety. In these circumstances, and having regard to the matters referred to in the succeeding paragraph, I find that Mr Johanson's conduct did not cause actual danger to other aircraft in the vicinity of the aerodrome.
Mr Wight suggested that Mr Johanson could have joined the circuit more prudently, by positioning his aircraft as the third aircraft in the circuit to allow better separation of the aircraft. However, I take into account and accept Mr Johanson's evidence as to the care with which he approached the Parafield Airport and landed his aircraft, and his attention to the location of the other aircraft in the circuit. I also take into account his extensive experience and skill as a pilot, including his experience in flying at night. It was also apparent from the radar evidence, as explained by Mr Jamieson, that when Mr Johanson's aircraft passed over the Tobago aircraft being flown by Ms Disney's student, there was a vertical separation of about 950 feet (not something less than 500 feet as Ms Disney had estimated). Mr Jamieson also acknowledged that he would not be concerned about the convergence of the aircraft after seeing how events unfolded, which I take to mean his understanding of the vertical height separating Mr Johanson's aircraft from the Tobago when Mr Johanson passed over Parafield Airport before joining the circuit in preparation for landing. It also appears from the radar evidence that there was at all times a safe lateral distance between Mr Johanson's aircraft and the aircraft piloted by Mr La Forgia. My conclusion as to these matters is reinforced by Mr Wight's comment in paragraph 24 of his witness statement (exhibit R1, T71, page 522) that proximity of less than 0.5 nautical miles and 500 feet may not be considered unusual between two VFR flights operating in a traffic circuit environment.
As appears from paragraph 45(f) above, CASA also alleges that by virtue of Mr Johanson's contraventions and breach of duty, he operated his aircraft in a reckless manner, contrary to s 20A(2) of the CA Act. This section provides:

(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 a person or property or another person."

The requirements for recklessness under Commonwealth legislation are codified in s 5.4 of the Schedule to the Criminal Code Act 1995 (Cth) (Criminal Code). This section provides relevantly as follows:

"5.4 Recklessness

(1) A person is reckless with respect to a circumstance if:

(a) he or she is aware of a substantial risk that the circumstance exists or will exist; and

(b) having regard to the circumstances known to him or her, it is unjustifiable to take the risk.

...

(3) The question whether taking a risk is unjustifiable is one of fact."

I referred in paragraph 54 above to Mr Johanson's evidence as to the care which he took when approaching Parafield Airport and landing, and the separation between his aircraft and the other two aircraft. Whilst I have found that he was guilty of the contraventions to which I referred in paragraphs 45(a)-(e) above, I am not satisfied that he had the awareness that is required to constitute an offence against s 20A(2) of the CA Act. As I have said above, the failure to respond to air traffic control and to broadcast that he was in bound to land at Parafield Airport did not result in any actual danger to other aircraft, but they had the potential to create a dangerous situation, and I take a serious view of those infringements. Having regard to Mr Johanson's experience, I do not regard the other infringements in themselves as creating an unsafe situation.
I now turn to the 2008 incidents which, as I have said above, resulted in CASA issuing five infringement notices to Mr Johanson. The show cause notice also alleged a contravention of s 20A(1) of the CA Act, but for the above reasons, I am not satisfied that there was a contravention of that subsection.

Detailed provision is made in Part 4A of the CAR with respect to the maintenance of Australian aircraft. Under these provisions, CASA may approve a system of maintenance for an aircraft that sets out the regular maintenance inspections, tests and checks that must be carried out on the aircraft, as well as when they are to be carried out (CAR 42L). Provision is also made for the certification by certain authorised persons of the completion of maintenance. Division 9 of Part 4A of the CAR provides for the issue of maintenance releases in respect of Australian aircraft by authorised persons, and CASA is empowered to give directions in respect of various matters relevant to the issue of maintenance releases.
Mr Johanson was authorised to issue maintenance releases in respect of his aircraft registered number VH-NOJ. He issued a maintenance release with respect to this aircraft on 20 April 2007. It expired on 20 April 2008. There was then a delay until 14 May 2008 before Mr Johanson issued another maintenance release for the aircraft (a copy of which is exhibit R1, T8, page 22). On 19 May 2008, Mr Johanson certified that the aircraft had been inspected on that date in accordance with CASA's maintenance requirements, and had been found to be in a condition for safe operation (see exhibit R3).
According to Mr Johanson's personal pilot's log book, he was the pilot in command of the aircraft on three flights that occurred between the expiry of the previous maintenance release on 20 April 2008, and the issue of the subsequent maintenance release on 14 May 2008. The three flights comprised a flight from Goolwa to Horsham on 26 April 2008, a return flight from Horsham to Goolwa on 27 April 2008, and a flight from Goolwa to Murray Bridge on 12 May 2008. Under CAR 133(1)(d) the pilot in command of an Australian aircraft must not commence a flight if (amongst other things) any maintenance that is required to be carried out before the commencement of the flight has not been certified in accordance with (relevantly) CAR 42ZE. This regulation requires a person who carries out maintenance on an Australian aircraft in an Australian territory to ensure that completion of the maintenance is certified in accordance with an approved system of certification of completion of maintenance, or the CASA system of such certification. CASA tendered an advisory publication setting out daily and periodic inspection schedules (exhibit R2). This publication lists the required periodic inspections which must be completed before the issue of the maintenance release and related certification.
Mr Johanson gave evidence to the effect that he had built the aircraft concerned, was well aware of the maintenance that had been carried out on it, and was very careful to carry out the requisite inspections on each occasion before he flew it. However, he prevaricated when asked to say when the 2008 annual maintenance inspection program had been completed. In examination-in-chief he said variously that it was done before 20 April 2008 (Transcript, 11.10.11, p 14, line 29 and p 19, line 10), or either before or very close to when the previous maintenance release ran out (i.e. 20 April 2008) (Transcript, 11.10.11, p 9, lines 8 - 9). When pressed he could not say when the annual maintenance work was completed in 2008, but he finally said that it would have been close to 19 May 2008, and could have been done over four or five days prior to that day, or at the beginning of May and then completed and not signed out until that day (Transcript, 12.10.11, p 34, lines 30 - 47). He said that he was the person who had the authority to issue the maintenance release, and it was an oversight on his part that this had not been attended to before the expiry of the 2007 maintenance release. He emphasised that the aircraft was not unsafe in any way at the time of the three flights referred to above, but as I understand exhibit R2 (the Civil Aviation Authority Maintenance Schedule which applied to Mr Johanson's aircraft), the annual maintenance entailed certain checks which necessitated removing certain external parts of the aircraft, and could not have been satisfied by a visual external inspection of the aircraft.
Notwithstanding Mr Johanson's excuses, it is clear that by making the three flights in question Mr Johanson contravened s 20AA(4)(a) of the CA Act. This section makes it an offence for a pilot to commence a flight if there is outstanding a requirement imposed by the CAR in relation to the maintenance of the aircraft. Mr Johanson failed in his duty to have a valid and duly certified maintenance release before making the flights. Further, if (as appears to have been the position) he did not carry out the necessary Schedule 5 maintenance referred to in exhibit R2 until close to 19 May 2008, it appears likely that he made at least two if not all three of the flights in question before the annual maintenance work had been carried out.
Whilst s 20AA(4)(a) of the CA Act has been contravened because a requirement of the CAR was not complied with, this is not a case where a maintenance defect had been identified and not remedied as required by the CAR. There is no evidence that the aircraft was in an unsafe condition when the three flights in question occurred, and it is clear that they occurred within a short time of the expiry of the previous maintenance release. Mr Johanson's breach of s 20AA(4)(a) was in itself not a serious infringement.

Mr Johanson was acquainted with two American citizens, John and Diane Wyatt from Arkansas, as a result of a business association between the company for which Mr Wyatt worked and Mr Johanson's company, Flymore Pty Ltd. The Wyatts decided to visit Australia, and sought Mr Johanson's advice as to how to see the Australian outback. Mr Johanson suggested a flight to Arkaroola, Leigh Creek, Coober Pedy and Ceduna. He thought that an RV-10 four seater aircraft would be available for this tour, but about four to six weeks before the Wyatts were due to arrive in Australia, he found that this aircraft was not available.
According to immigration records, the Wyatts arrived in Australia on 2 May 2008, and left on 17 May 2008. Mr Johanson said that they stayed with him.
Mr Johanson's evidence as to relevant events after the Wyatts arrived was as follows. Mr Wyatt did some work on an aircraft owned by one Lyndon Trethewey, who conducted a business at the Goolwa Airport. Mr Trethewey's aircraft was a Treth 6, which had been amateur built in Iran and imported into Australia in about 2005. Mr Trethewey's father later purchased the Treth 6 following an auction that had been advertised by Mr Johanson's company in December 2007 on behalf of a business which had not been paid for work conducted on the aircraft. The aircraft had been kept sometimes within and sometimes outside a hanger at Goolwa next to a hanger used by Mr Johanson. Mr Wyatt asked Mr Trethewey whether he could use the Treth 6 for the proposed outback tour, and this was agreed. In his summary of evidence (exhibit A1) Mr Johanson said that "at no time did (he, Mr Johanson) seek for the TRETH6 to be included in the flights, organise for that to take place, seek reward for that to take place, or take responsibility for the involvement of that aircraft in the flights."
As to the aircraft that he was to fly, Mr Johanson's evidence was as follows. He originally intended to take his own aircraft, VH-NOJ. However, he had been engaged to conduct Phase 1 testing for another aircraft, VH-VAL, owned by a Mr Peter Gilbert, who was then a student pilot. Twenty-five hours of flying time was required in order to complete Phase 1 testing. He therefore offered to help Mr Gilbert to get up the hours by taking the VH-VAL on the outback tour, but told him that he (Mr Gilbert) would have to obtain approval from an authorised person for the aircraft to be taken beyond the 50 nautical mile limit from Goolwa, this being a restriction in the CASA authorisation for Phase 1 testing. Mr Gilbert agreed to the aircraft being used, and Mr Johanson understood that Mr Gilbert would obtain the necessary approval. He assumed that Mr Gilbert had obtained the approval before he took the aircraft on the outback tour. Mr Johanson understood that Mr Gilbert, as the owner of the aircraft, was the person who had to obtain approval to go beyond the 50 nautical mile limit, and that it was not competent for him (Mr Johanson) to obtain such approval.
Mr Johanson subsequently organised the flight route with Mr Wyatt. It was intended that whilst Mr Johanson would fly a separate aircraft, the two aircraft would fly together, but he gave Mr Wyatt maps and charts to enable him to navigate the planned route in case the aircraft became separated. Mr Johanson paid for the fuel for the two aircraft, but the Wyatts paid for other expenses, including accommodation.
Mr Gilbert gave a different account in his evidence as to the use of his aircraft on the outback tour. He said that he had a telephone conversation with Mr Johanson, and when Mr Johanson requested permission for the aircraft to be used, Mr Gilbert said that this would be a breach of the condition imposing the 50 nautical mile limit. Mr Johanson responded that it was no big deal, it happens all the time, and he was not to worry about it. Mr Gilbert replied it was his (Mr Johanson's) decision. Mr Johanson then said that he would not get caught, and would not put the transponder on, and would not go into controlled air space. Mr Gilbert denied that he was asked to arrange for an exemption from the 50 nautical mile limit, and he also said that he had never informed Mr Johanson that the requisite approval had been obtained for VH-VAL to fly beyond the 50 nautical mile limit, nor did he give any reason for Mr Johanson to think that he would make, or had made, an application for such approval.
Mr Trethewey, the owner of the Treth 6, said that Mr Johanson's request to use the aircraft was made months or weeks before the proposed outback tour, and his response was that if all the certifications were ready that would be okay. It appears from exhibit R1, T6, page 19 and exhibit R4 that Mr Trethewey faxed an application to register the Mark VH-ISF in respect of the Treth 6 on 31 March 2008. This request was dispatched from Mr Johanson's fax machine. Mr Trethewey said that the Mark was approved, and at a date prior to the outback tour, he had partially repainted the aircraft and applied the registration mark to it. However, he did not apply to register the aircraft until after the outback tour, on 15 May 2008, and the aircraft was not registered until 2 June 2008. He said that he met the Wyatts after they arrived and realised they were going to take the Treth 6, and was nervous because it was not registered, but he did not say anything because he could see that Mr Johanson had already organised that they were going to take the plane.
The outback tour proceeded in accordance with the proposed flight route in the period from 8 to 10 May 2008. Mr Johanson admitted in cross-examination that he did not, before setting out on the tour, ask Mr Gilbert whether he had obtained approval for his aircraft to go outside the 50 nautical mile limit, and he did not ask Mr Trethewey whether the Treth 6 aircraft had been registered or whether the necessary certificate of airworthiness and maintenance release documents had been issued for that aircraft. He assumed that these matters had been attended to. He also said that he was not aware of whether Mr Wyatt needed any licence from Australian authorities in order to fly in Australia; he assumed that Mr Wyatt was authorised to fly in Australia, but did not discuss this question with him at any stage. Mr Johanson maintained that it was not for him but for Mr Wyatt to be satisfied as to his entitlement to fly an aircraft in Australia, and that he had understood that the Treth 6 had been registered and that everything necessary had been attended to.
After the aircraft returned following the outback tour, Mr Gilbert terminated the arrangement for Mr Johanson to complete the Phase 1 testing. There was a dispute about the amount of the account which Mr Johanson had rendered for his services.
I have some reservations about the reliability of certain aspects of Mr Gilbert's evidence. However, I accept his evidence that he did not say anything which would have led Mr Johanson to believe that he would obtain the necessary approval to enable his aircraft to be used on the outback tour, or that approval had been obtained before the tour commenced. I find that Mr Johanson flew the experimental aircraft VH-VAL outside of its 50 nautical mile from Goolwa limit contrary to a condition of its experimental certificate, and thereby contravened Civil Aviation Safety Regulations 1998 (Cth) (CASR) 21.195A(5) (as it then was) and CAR 262AP(3) (which imposed a penalty of 50 penalty units). These are strict liability offences.
At the time of the outback tour the Treth 6 was unregistered, did not have a certificate of airworthiness and there was no maintenance release in respect of the aircraft, and these matters entailed offences against ss 20AA(1), (3) and (4) of the CA Act. In addition, Mr Wyatt flew the aircraft without a current Australian civil aviation authorisation to do so, contrary to s 20AB(1) of the CA Act. Mr Johanson was involved in planning the tour, providing maps and charts to enable Mr Wyatt to navigate and arranging the use of the Treth 6, and at least on one occasion, refuelling the Treth 6, and in those ways assisted Mr Wyatt to engage in flying the Treth 6. CASA asserts that by engaging in this conduct, Mr Johanson aided and abetted the commission of the above offences by Mr Wyatt, or that he contravened, or was a party to, the contravention of the above provisions, as the operator of the Treth 6.
The requirements of the offence of aiding and abetting under Commonwealth legislation are codified in s 11.2 of the Criminal Code. This section provides relevantly:

"11.2 Complicity and common purpose

(1) A person who aids, abets, counsels or procures the commission of an offence by another person is taken to have committed that offence and is punishable accordingly.

(2) For the person to be guilty:

(a) the person's conduct must have in fact aided, abetted, counselled or procured the commission of the offence by the other person; and

(b) the offence must have been committed by the other person."

Mr Wyatt has not been prosecuted for the asserted contraventions, but by virtue of s 11.2(5) of the Criminal Code, that would not provide Mr Johanson with a defence against aiding and abetting the commission of the offences. Nevertheless, by virtue of s 11.2(2)(b), Mr Wyatt must have committed the offences in question for Mr Johanson to be guilty of aiding and abetting. Sections 20AA(1), (3) and (4) of the CA Act are not expressed to be strict liability offences and do not provide a fault element, but under s 5.6 of the Criminal Code, a fault element, being either intention or recklessness depending on the characterisation of the offences, is implied. Mr Wyatt was not called by either party. I do not know whether the necessary fault element would have existed as far as he is concerned; presumably he saw the registration mark on the Treth 6, and he might well have concluded that the Treth 6 was duly registered and had any necessary certificate of airworthiness. It is also unclear whether he would have had a defence to the absence of a maintenance release as required by s 20AA(4) of the CA Act, although I assume that the practice with respect to maintenance releases in the United States would be similar to the position in Australia, and that Mr Wyatt might have been expected to check that there was an appropriate maintenance release current for the aircraft before he flew it. In that case, Mr Wyatt might not have a defence to a prosecution against s 20AA(4), and as far as Mr Johanson is concerned, the question would then arise as to whether he intended that his conduct would have aided and abetted the commission of the offence by Mr Wyatt, as required by s 11.2(3) of the Criminal Code. The issues that arise under the Criminal Code have not been the subject of submissions by either counsel, and I find it unnecessary to express a concluded view on this aspect, because as mentioned below, I remain concerned in any event about Mr Johanson's conduct in failing to make the necessary inquiries to satisfy himself that the Treth 6 could be lawfully flown on the outback tour. As to the asserted contravention of s 20AB(1), there is no evidence that Mr Johanson had any reason to believe that Mr Wyatt would not be authorised to fly in Australia. I am not satisfied that Mr Johanson was aware that was so, or that he intended that his conduct would result in an offence against s 20AB(1). As a result, I am not satisfied that he aided or abetted Mr Wyatt to commit an offence under that section.
Mr Winter contended that neither Mr Johanson's involvement in the antecedents of the outback tour, nor his participation in the tour itself, meant that he was the operator of the Treth 6 for the purposes of s 20AA(3) or (4) of the CA Act. The word "operate" is defined in the CA Act in relation to an aerodrome to include "manage, maintain and improve the aerodrome" but the word "operator" is not defined in the CA Act. I do not think that the definitions of "operator" in the CAR should be used to interpret the CA Act, but in any event the definition of "operator" is unhelpful in that it refers in turn to engaging in "an aircraft operation", and that expression is not defined. The expression "operating crew" is defined in the CAR in terms that refer to persons on board an aircraft, and would not apply to the activities of Mr Johanson in relation to the Treth 6. According to the Macquarie Dictionary (5th edition, 2009), the meaning of "operator" includes:

"1. A worker; one employed or skilled in operating a machine, apparatus or the like: 'a wireless operator'; 'telephone operator'. 2. Someone who conducts some working or industrial establishment, enterprise, or system: 'the operators of a mine'... ."

I think in the context of s 20AA(3) and (4) of the CA Act, the "operator" of an aircraft means a person (other than an owner, hirer or pilot, being persons who are expressly included in s 20AA(3) and (4)) who manages or controls the aircraft, and authorises and organises its use on an ongoing or systematic basis. I do not think that Mr Johanson's activities in relation to the participation of the Treth 6 on the outback tour were such that he was the "operator" of that aircraft during the outback tour.
CASA also asserted in its show cause notice of 2 December 2008 that Mr Johanson "may have" flown the Treth 6 during the outback tour. Miss Ford contended in her address that he did so when the aircraft left Leigh Creek during the outback tour. The contention was based on the evidence of Rosemary Anne Wilkinson who, according to her witness statement (exhibit R1, T27, page 100) was at the relevant time employed by Air BP as the airfield representative at Leigh Creek Airport. She said she saw two small low wing RV type aircraft at the airport, and a man whom she later recognised as Mr Johanson refuelled one of the aircraft, namely the aircraft with the marking VH-ISF (i.e. the Treth 6). She said that after it had been refuelled Mr Johanson got into this aircraft and moved it away from the bowser, and she then attended to refuelling a third aircraft, which was a Rossair charter aircraft. She said that both of the other aircraft took off a short time later to the north. She was asked in cross-examination whether the Treth 6 subsequently stopped before it departed from the airfield, and she responded "Not that I'm aware of, no." (Transcript extract, 20.10.11, p 9, line 16). She was then asked whether she knew who was in which aircraft when they departed, and she responded in effect that the person who refuelled VH-ISF, Mr Johanson, got back into that aircraft, and "the other gentleman and his passenger, if there was one, got back into the other aircraft." (Transcript extract, 20.10.11, p 8, lines 5 and 6). However, she said that it was going back three years, and she could not say 100% but was as sure as she could be. She said that she thought there were two people in each aircraft, but could not be 100% sure, although she did see two people in the other aircraft, and that after she had refuelled the VH-ISF and given Mr Johanson the delivery receipt she did not take a lot of notice of what the aircraft did. She mistakenly thought that the ISF was a tail wheel aircraft, but seemed unsure of this and added that it was "getting back so long". (Transcript extract, 20.10.11, p 9, line 22). In fact, VH-VAL, not the Treth 6, was a tail wheel aircraft.
I am satisfied from Mrs Wilkinson's evidence that Mr Johanson refuelled the Treth 6, and then got in it and taxied it away from the bowser. However, Mrs Wilkinson appeared to be unsure of her recollection of certain other matters, not included in her witness statement, of which she gave evidence, and she acknowledged that the events occurred three years earlier. She said that she had had no reason to pay particular attention to the two small aircraft, or who was in which aircraft when they took off. Her evidence was clearly incorrect in some respects, and I have concerns as to the reliability of her evidence insofar as she referred to what happened after Mr Johanson had moved the Treth 6 away from the bowser. Mr Johanson was not cross-examined about the events that occurred at Leigh Creek, and denied that he was at any stage the pilot of the Treth 6 during the outback tour. After the exchange of supplementary written submissions which further addressed this issue, Mr Winter applied to reopen the hearing and call Mr Wyatt to rebut the contention that Mr Johanson flew the Treth 6 during the outback tour. CASA opposed this application due to the difficulty of assessing the credit of telephone evidence. I was advised that CASA would maintain its opposition even if the evidence were provided by video link (a practice which this tribunal not uncommonly adopts to overcome the difficulties of assessing the credit of telephone evidence following Federal Commissioner of Taxation v Grbich (1993) 31 ALD 97). The allegation as to Mr Johanson flying the Treth 6 from Leigh Creek was not included in the show cause notices, CASA's Statement of Facts, Issues and Contentions or other relevant documents. It was raised very late in the proceedings and involves drawing inferences from evidence that I do not regard as satisfactory. In all the above circumstances, and having regard to the need for CASA to have adduced evidence of this asserted breach as explained in paragraph 29 above, I decided that it was not appropriate to reopen what has been a very long hearing by permitting Mr Wyatt to be called. Adopting the approach in Briginshaw, I have concluded that the quality of the evidence before me is such that I am not reasonably satisfied that Mr Johanson flew the Treth 6 from Leigh Creek.
Mr Johanson accepts that he used the radio call sign "Sports Formation" or perhaps "RV Formation" when approaching the airfields at Leigh Creek, Coober Pedy and Ceduna. CASA asserts that these call signs did not comply with directions contained in section GEN 3.4 of Aeronautical Information Publication (AIP) relating to radio broadcasts (exhibit R21), in that the call signs did not identify the aircraft seeking approval to land or take off at the aerodromes. Mr Johanson maintains that he had used these call signs on many prior occasions when flying in formation, and it was well known that he used these call signs and they would have identified him. However, whilst it seems from his evidence this might have been the case if the call signs had been used at an air show, I am not satisfied that this would not have been the case at the remote aerodromes that he used during the outback tour. I therefore find that the use of the above call signs constituted the offence alleged. However, I am not satisfied that Mr Johanson used the call signs in order to avoid paying the landing fees applicable to the aerodromes, or to conceal the identity of the aircraft, as alleged by CASA. According to Mr Johanson, the landing fees were insignificant, and persons at the outback destinations would have been able to identify the two aircraft which used the aerodromes, and the persons flying them. Further, the airfields are in remote parts of outback Australia, and the failure to comply with the AIP directions did not on the evidence before me cause any danger or concern to any others using the airfields.
Mr Johanson admitted that following the outback tour, he described the flights in VH-VAL in his personal pilot log as "local GWA", thus indicating that they were local flights in the Goolwa area. He said that this error occurred because he filled in his log book some time after the flights, and had not then recalled the correct destinations of the flights. However, other entries in the relevant log recorded as "local GWA" flights were all of a much shorter duration than the flights for 8 to 10 May 2008. I do not accept Mr Johanson's explanation. I find that he knowingly made a false entry in the log in order to conceal the fact that he had operated the aircraft beyond the 50 nautical mile limit. I accordingly find that Mr Johanson breached s 137.2 of the Criminal Code in that he produced a false or misleading document in purported compliance with the law of the Commonwealth. I further find that he contravened a direction in CAO 40.1.0.9 requiring information concerning each flight to be recorded in the pilot in command's personal log book, contrary to CAR 5.52.
Mr Johanson also flew the aircraft VH-VAL to Parafield in order to refuel on his way to Arkaroola, and CASA alleges that this constituted a breach of CASR 21.195A(5) (as it then was) and CAR 262AP(4), in that he operated the aircraft over a built-up area of a city or town.
A certificate of airworthiness in respect of the aircraft had been issued on 26 March 2008. The certificate was subject to certain conditions that were described as "Phase 1 operating limitations". The aircraft was described as an "amateur-built aircraft". The conditions included a requirement that a minimum of 25 hours of flight should be accumulated prior to Phase II testing, and that no person could operate the aircraft outside the geographical area described as "From Goolwa; and within a 50 nm radius of Goolwa." (exhibit A2(b), page 19).
The certificate of airworthiness also contained references to flying over the built-up area of a city or town. Annexure Number VAL/01 provided as follows:

"ROUTE LIMITATIONS

9) No person may operate this aircraft over the built-up area of a city or town.

10) Flight over any persons or dwellings shall be avoided to the greatest extent practicable.

11) Flight over any persons or dwellings shall be at such a combination of height and speed as to permit the pilot to glide clear of all persons and dwellings, in the event of an engine failure or other flight critical emergency." (exhibit A2(b), page 19)

Mr Johanson said that by the time of the flight to the outback, he had completed all of the necessary testing of VH-VAL, and all that was required to complete Phase 1 testing was to meet the requisite 25 hours of flying time. He said further that in the past he had conducted Phase 1 testing of at least five aircraft based at Parafield, and was not aware that Parafield had been designated as a built-up area of a city or town. He also said that in any event, his flight had been conducted at a combination of height and speed as would have permitted him to glide clear of all persons and dwellings, in the event of an engine failure or other emergency, and he thought that this complied with CASA's requirements. He also said that his flight had been safe because of the way he had conducted it.
CASA relied upon two aerial photographs of Parafield Airport and its surrounds, which appear in exhibit R1 at pages 572 and 573. I am satisfied that by flying the aircraft to Parafield to refuel on 8 May 2008, Mr Johanson operated the aircraft over the built-up area of a city or town, within the meaning of the conditions referred to in the annexures to the certificate of airworthiness, and that this constituted a breach of CASR 21.195A(5) (as it then was) and CAR 262AP(4).
Nevertheless, Mr Johanson's evidence of conducting Phase 1 testing of other aircraft based at Parafield was not challenged by CASA. Whilst this mistaken belief does not constitute a defence to this contravention, I accept that this contravention was unintentional, because he believed that he was not acting in breach of the certificate of airworthiness because he operated the aircraft so that he would be able to glide clear of persons and dwellings in the event of an emergency.

Third Incident - Operation of RV6 aircraft VH-VAL at Parafield on 13 May 2008

It is common ground that on 13 May 2008 Mr Johanson flew Mr Gilbert's aircraft VH-VAL from Goolwa to Parafield and return. For the reasons referred to above, I find that operating the aircraft to and from Parafield on 13 May 2008 constituted a breach of CASR 21.195A(5) (as it then was) and CAR 262AP(4).
I also referred above to Mr Johanson's understanding as to the conditions that applied to the certificate of airworthiness in respect of the aircraft insofar as they refer to operating an aircraft over a built-up area of a city or town, and I accept that that was his understanding at the date of this incident.

Fourth Incident - Landing in paddock at Finniss on 20 June 2008

In June 2008, Mr Johanson was engaged in conducting Phase 1 testing on another home built aircraft, an RV-10, registered number VH-ESV. This aircraft was involved in an incident on 20 June 2008, when Mr Johanson landed it in a paddock at Finniss.
Mr Johanson's evidence as to this incident is as follows. By 20 June 2008 he had almost reached the end of the systems testing of the aircraft. It remained necessary for him to record the stall speeds of the aircraft in various circumstances, that is, at different speeds, manoeuvres and configurations of the aircraft controls. When he was preparing to take off to conduct those tests he was approached by one Andrew Paton, who had asked him on previous occasions to participate in a flight. Mr Johanson asked him to assist with the tests by watching the instrument panel and recording the aircraft's speed when it stalled. They took off at about 4.20 pm. Mr Johanson anticipated that the flight would take between 30 and 45 minutes, that is, it would have concluded comfortably before last light that day. After commencing the program of testing, the engine of the aircraft began to splutter, and Mr Johanson realised that the engine was not getting enough fuel. He decided to land the aircraft in a paddock, because he was not confident that he would be able to return to the Goolwa aerodrome. He had no difficulty with the landing, and described it as a precautionary landing, not a forced landing.
After landing, he found that fuel in the auxiliary tanks was not transferring to the in-board tanks, because the vents had not been properly adjusted. Mr Johanson telephoned a friend for assistance, and two other colleagues came to help. There was a delay before they arrived, because they had had some difficulty locating the aircraft. They then transferred fuel from the auxiliary tanks to the main tanks, thus ensuring that there was sufficient fuel in the main tanks to fly the aircraft safely.
Mr Johanson thought that the paddock where he landed was about seven nautical miles from Goolwa, and that it would take only about five minutes to fly back to the aerodrome there. He was concerned about the safety of the aircraft and whether it would be covered by insurance if it was left overnight in the paddock, and decided to fly it back to Goolwa. He took off with the assistance of the headlights of a motor vehicle, although he said he could see more than the distance he needed to take off, and had no difficulty with the take-off. He could not say what time it was when he took off, but said it was close to last light then, but dark when he came to land. The parties agreed that on the day when the above events occurred, last light at Goolwa was at 5.37 pm.
As he approached Goolwa Airport, he endeavoured to activate the airport landing lights using his radio. He could not do so. He then contacted Adelaide Air Traffic Services by radio to enquire about the correct Pilot Activated Lighting (PAL) radio frequency for the Goolwa landing lights. He used the call sign for his own RV-4 aircraft, registered VH-NOJ, and not the call sign of the aircraft he was flying. He said that he usually used the VH-NOJ call sign, and denied that he did so on this occasion to conceal the fact that he was flying an aircraft which was prohibited from flying at night.
Mr Johanson gave evidence that then, as he approached the Goolwa Airport, he radioed the airport with a request to turn on the landing lights. He believes from what people told him later that his requests were received by the owner of the airport, Mr Eastwood, but were deliberately ignored because of a bitter commercial dispute in which the two were then engaged.
I am satisfied from the evidence of Mr Eastwood that prior to the date of these events now under consideration, he would turn the PAL system off because students had been adopting a practice of activating the PAL system as they passed over Goolwa, in order to obtain their bearing. However, if he knew that an aircraft was going to land at night, or if a pilot so requested, he would turn on the PAL system. It transpired that on this night the PAL system had not been turned on, but after receiving the request from Mr Johanson, an officer from Adelaide Air Traffic Services telephoned Mr Eastwood, who then turned on the landing lights. Mr Johanson then landed the aircraft safely. According to records obtained by CASA, the telephone call to Mr Eastwood took place about one hour after last light.
CASA alleges that Mr Johanson's conduct resulted in a number of contraventions as follows.
- (a) He flew the aircraft at night contrary to CAR 262AP(6), which prohibits an experimental aircraft from being operated at night without the approval of CASA or an authorised person.
- (b) His personal log book contains an entry for a flight made on the day and in the aircraft in question in the day column, but no entry in relation to a night flight, contrary to CAR 5.52(4), which requires the log book to record the flight accurately.
- (c) He failed to report to the Australian Transport Safety Bureau what amounted to a forced landing and so a reportable matter, in breach of s 19 of the Transport Safety Investigation Act 2003 (Cth).
- (d) He took off from a ploughed paddock at night, without landing lights, and flew to Goolwa on a pitch-black night, in circumstances where he could have waited until the following morning to conduct the flight, thereby operating the aircraft in a reckless manner, contrary to s 20A of the CA Act.
- (e) He invited Mr Paton to participate in the flight in breach of CASR 21.195A(5) (as it then was) in breach of a condition of the certificate of airworthiness for the aircraft, which included a condition that only persons essential to the conduct of the testing could fly on board the aircraft, and the carriage of passengers was prohibited.
- (f) He failed to record the defect in the aircraft which caused the forced landing, or the steps taken to rectify the defect in the aircraft's Maintenance Release Form, in breach of CAR 47 and CAR 50.
- (g) He took off from the Finniss paddock without including in the maintenance release a certification that maintenance had been completed in accordance with CAR 42ZE or CAR 42ZN, in breach of CAR 133(1)(d).
I find that the contraventions referred to in paragraphs 99(a), (b), (c), (f) and (g) are made out.
As to paragraph 99(d), I am not satisfied that Mr Johanson's conduct constituted operating the aircraft in a reckless manner, contrary to s 20A of the CA Act. As mentioned above, a breach of s 20A applies if a person is reckless as to whether the manner of operation of an aircraft could endanger the life of the person or property of another person, and under s 5.4 of the Criminal Code, this would be the case if the person is aware of a substantial risk that this will be so.
Mr Johanson acknowledged that with the benefit of hindsight, he should not have flown back to Goolwa from the paddock, but he decided otherwise on the night. Clearly it would have been safer for Mr Johanson to have waited until the next morning. However, he explained the concerns that led to his decision to make the short flight back to the Goolwa aerodrome. He has had extensive experience as a pilot, and I accept his evidence that he has taken off in remote areas in various parts of the world where, as he puts it, the surface was "less than optimal" (exhibit A1), and that he was confident that he could take off safely from the paddock. Further, when he took off he did not expect that there would be any difficulty with the landing lights at the Goolwa aerodrome.
As to the offence referred to in paragraph 99(e) above, that is, the unlawful carriage of a passenger, Mr Johanson contended that Mr Paton's presence was "essential", because he was assisting in recording the stall speeds of the aircraft, and that his assistance would have made the flight significantly shorter than it otherwise would have been. I do not accept that this made Mr Paton's presence in the aircraft essential within the meaning of the relevant condition of the CoA. I think that in this context, the word "essential" should convey its ordinary meaning which according to the Macquarie Dictionary is "absolutely necessary; indispensible". It would have been competent for Mr Johanson to have completed this aspect of the testing himself, and indeed he admitted that is what he had intended to do before he was approached by Mr Paton.
I do not regard some of the contraventions arising from the events of 20 June 2008, when the aircraft landed in the paddock, as serious contraventions. For example, in the circumstances, I think the breach referred to in paragraph 99(g), that is taking off without first having included a certification in the maintenance release for the aircraft to record that the fuel problem had been rectified was, in the circumstances a technical breach; Mr Johanson was the person who was going to fly the aircraft, and he had satisfied himself that enough fuel had been transferred to the main tanks to enable him to fly it safely. As to the breach asserted in paragraph 99(f), I accept that the problem with the fuel tanks was simply remedied, and I can understand Mr Johanson's explanation that minor matters of adjustment that are required during Phase 1 testing may not as a matter of practice be disclosed as defects in the maintenance release for the aircraft concerned, and that it would not be uncommon in practice for such matters to require attention during Phase 1 testing, as they would have no ongoing relevance once they were remedied. I also accept that Mr Johanson had to make a judgment as to whether it was safer to land in the paddock than to endeavour to return to Goolwa Airport in view of the fuel problem; he was flying the aircraft, and was experienced in conducting test flights as part of Phase 1 testing, and I do not think that his decision to land in the paddock rather than try to return to Goolwa should be criticised in the circumstances that he was confronted with. However, I think that other contraventions referred to in paragraph 99 which have been established to my satisfaction were serious. I do not accept Mr Johanson's evidence that he made a mistake in not using the correct aircraft call sign when contacting Adelaide Air Traffic Services as he approached Goolwa. This constituted an offence against CAR 166C. CASA points out that not only did he use the incorrect call sign, but he also did not log the fact that there had been a night flight, and he failed to report the forced landing. I find that these matters evidence a deliberate attempt by Mr Johanson to conceal his actions from the authorities. I also regard the carrying of a passenger in the aircraft contrary to the Phase 1 conditions as a serious matter, especially as the aircraft was engaged in recording stall speeds, although I also take into account Mr Johanson's extensive experience as a pilot and that he had no doubt safely carried out this kind of testing many times before.

Fifth Incident - Accident on the ground at Parafield Airport on 25 July 2008

On the afternoon of 25 July 2008, Mr Johanson landed a Chieftain aircraft at Parafield. At his passenger's request he taxied towards a parking bay at the northern end of the aerodrome which he thought would be wide enough to accommodate the aircraft. However, as he approached he realised that the Chieftain's wing span was too great to fit. He endeavoured to make a U-turn, and the aircraft went from a bitumen apron on to a gravel surface. The nose wheel sank into the gravel, and in an attempt to complete the U-turn, Mr Johanson applied power to the port engine. Two persons in an adjoining hanger observed that the thrust from the engine was buffeting a Sportstar aircraft behind the Chieftain. The witness Peter Stark ran to the Sportstar and tried to hold it down, while the witness Rainer Huefner ran over and signalled to Mr Johanson to shut the engine down. Mr Johanson said that by then he had already reduced power, but did not shut the engine down immediately because he needed to reduce the temperature of the engine. He disputed the extent to which the Sportstar was buffeted, but I accept the evidence of Mr Stark that the aircraft was being violently buffeted.
Mr Johanson and his passenger then attempted to push the Chieftain to complete the U-turn, leaving no-one at the controls, but it had stopped on a slight slope and rolled backwards, colliding with the Sportstar and causing significant damage to it. The damage was covered by insurance, but the Sportstar was out of commission for a number of weeks.
CASA asserts that this episode resulted in the following contraventions:
- (a) operating an aircraft being reckless as to whether the manner of operation could endanger a person or property of another person, contrary to s 20A(2) of the CA Act; and
- (b) operating an aircraft on the ground in a manner creating a hazard to itself or another aircraft, contrary to CAR 163(2).
The perimeter of the bitumen apron was designated by two parallel double yellow lines, and there was a further line to indicate the course which the aircraft should follow in order to park in the parking bay concerned. Mr Johanson did not follow the line, and crossed the double yellow lines. I am satisfied that the lines were clearly visible. CASA contends that Mr Johanson should have sought the assistance of other persons or a tug to remove the Chieftain once it had become stuck on the soft gravel, and that he should not have taxied across the yellow lines and on to the gravel. In addition, CASA asserts that Mr Johanson had used excessive engine power causing debris to be blown onto the Sportstar aircraft and causing it to tip.
I find that Mr Johanson contravened CAR 163(2), in that he operated the Chieftain on the ground in a manner that created a hazard to itself and to the Sportstar. However, on CASA's own allegations, the Chieftain's wing span was only .4 metres outside the permissible wing span for the parking bay in question. Mr Johanson said that it was common for aircraft to taxi on to the gravel area, and one David Forsythe, who had witnessed the incident, gave evidence that he himself had previously used the gravel area when parking his aircraft, before he (and according to the witness Vas Saris, others) had also been told not to do so. Mr Johanson described this event as a mistake of judgment on his part. I am not satisfied that his conduct constituted reckless conduct in breach of s 20A(2) of the CA Act, since I do not think that he had the awareness that is required by s 5.4(1) of the Criminal Code.

Sixth Incident - Failure to comply with CAR 301 Surrender Notice

The initial investigations by CASA related to the fourth and fifth incidents, which occurred in June and July 2008. The CASA investigator, Mr Mark Haslam, interviewed Mr Johanson about those matters, and Mr Johanson gave him log books at Mr Haslam's request.
Later, on 23 September 2008, Mr Haslam sent an email to Mr Johanson attaching a surrender notice pursuant to CAR 301 requiring him to surrender, by 26 September 2008, his personal log book covering the period from 27 March to 22 May 2008. Mr Johanson did not comply with this notice within the time required.
Mr Johanson said that he was concerned at receiving the above surrender notice, because he had previously produced his log book to Mr Haslam and had endeavoured to assist him to photocopy it. On 9 October 2008, Mr Haslam telephoned Mr Johanson to ask why the surrender notice had not been complied with. By then, CASA had become aware of further matters that potentially involved further contraventions by Mr Johanson. In the course of the telephone conversation, Mr Johanson said in effect that he believed that the notice was part of a witch hunt, and not safety related. Mr Haslam disputed this, and explained his responsibilities. After discussion, Mr Haslam said that all that he needed was the log book for May, and that a faxed copy would be sufficient. Mr Johanson subsequently sent Mr Haslam a copy of the log book for the period from 11 April to 18 June 2008 under cover of a letter dated 16 October 2008. His covering letter stated:

"Please find attached copies of my log book covering May of this year as requested by you during our phone conversation last week. I know you have the power to demand to see my logbook, but since I have already provided it to you, it seems unreasonable for you to demand it again. In fact, it seemed to me as though you are just digging for more and more things to hopefully hold against me. I don't think that's fair and I don't think I have to help you to do that. That is why I said to you that this appears to be a witch hunt. I have already said to you that I make mistakes and that, I will deal with whatever penalty is just. I try to learn from my mistakes, and stay alive in the air." (exhibit R1, T26, page 95)

Mr Johanson said that his reticence in complying with the notice within the timeframe stipulated by CASA was due to his concern that Mr Eastwood was raising allegations against him in order to prompt CASA to pursue investigations into his conduct, due to the animosity that Mr Eastwood bore towards him as a result of their commercial dispute. This concern also appears to have coloured Mr Johanson's attitude to other aspects of CASA's investigations and the action CASA has taken, and his response to those matters.
Mr Winter submitted that the surrender notice was not validly served as it was communicated by email, and that as the CAR does not prescribe methods of service, service had to be effected in accordance with s 28A of the Acts Interpretation Act 1901 (Cth). This section provides that a document that is required to be served on a person may be served by delivering it to the person personally or by leaving it or sending it by pre-paid post to the last known address of the person. It was submitted that as there was no valid service, Mr Johanson was not under any duty to respond to the notice. However, s 9 of the Electronic Transactions Act 1999 (Cth) authorises the giving of information in writing by means of an electronic communication, and "giving information" is given an extended meaning under s 9(5), to include making a request. I consider that this section applied to the email and its attached CAR 301 notice, and accordingly find that the notice was validly served.
CASA acknowledges that it accepts the photocopies of the log book enclosed with the above letter as sufficient compliance with the surrender notice. However, it maintains that Mr Johanson failed to surrender the log book within the time required by the notice, and that he therefore contravened CAR 301(1), which provides for a penalty of 5 penalty units. I find that this allegation has been made out, but it has not been suggested that the failure to comply within the required three days prejudiced CASA's investigations. In the circumstances, I do not regard the delay in complying with the notice as a significant contravention.

In its show cause notice of 2 December 2008, CASA also referred to a number of extracts from Mr Johanson's book "Aiming High". The show cause notice issued after the Parafield aerodrome incident on 19 January 2010 did not reiterate the extracts from "Aiming High", nor did the letter of 12 August 2010 (in which CASA advised Mr Johanson of the cancellation of his flight crew licences) or the respondent's Statement of Facts, Issues and Contentions. However, Miss Ford referred to certain extracts from the book in the present proceedings, and CASA asserts that these extracts constitute further proof of the existence of the grounds for cancellation referred to in CAR 269(1)(c) and (d).
Mr Johanson referred to his book in examination-in-chief, and said its purpose was to recount the experiences he had had with a view to recording some of the mistakes he had made, and thereby assist readers of the book and so promote safety.
Miss Ford contended in effect that various extracts from the book, which are contained in exhibit R33, indicate that Mr Johanson has a history of engaging in unsafe conduct, or not complying with or respecting CASA's requirements. Insofar as the extracts related to events that occurred while Mr Johanson was flying, he said when cross-examined that he had to make a choice because of the circumstances he found himself in (such as unexpected changes of weather conditions), and that he had acted in the interests of safety. He admitted to being critical not of CASA, but of some persons within CASA, and acknowledged that CASA's rules were there for good reason. As to the reference to taking off for New Zealand without the necessary paperwork (which had occurred in 1995), he said that he had been waiting for the paperwork for many months, and needed to complete the long distance flight over water at that time of the year, and he was running out of time.
The events referred to in the extracts from the book occurred many years ago, when Mr Johanson was a much less experienced pilot. In all of the circumstances, and having regard to Mr Johanson's explanations, I do not attach significant weight to the relevant extracts from the book in the present proceedings.

Additional contraventions not included in show cause notices

In her final address, Miss Ford relied upon certain further alleged contraventions not included in the show cause notices, or the letters advising Mr Johanson of CASA's decisions, or its Statement of Facts, Issues and Contentions.
I questioned whether CASA, or this Tribunal standing in the shoes of CASA on the hearing of the within proceedings, could take into account such further alleged contraventions, having regard to CAR 269(3). This provides as follows:

"(3) Before taking action under this regulation to vary, suspend or cancel an authorisation, CASA must:

(a) give notice, in writing, to the holder of the authorisation of the facts and circumstances that, in the opinion of CASA, warrant consideration being given to the variation, suspension or cancellation of the licence authorisation under this regulation; and

(b) allow the holder of the authorisation to show cause, within such time as CASA specifies in that notice, why the authorisation should not be varied, suspended or cancelled under this regulation." (emphasis added)

Under CAR 269(1), the power to vary, suspend or cancel an authorisation arises where CASA is "satisfied" of the existence of one or more of the stated grounds. If it is so satisfied, its discretion to vary, suspend or cancel the relevant authorisation is enlivened. CASA would then need to consider all relevant facts and circumstances before it is satisfied as to whether variation, suspension or cancellation should apply. The use of the definitive "the" in providing for the facts and circumstances of which a show cause notice must be given is arguably an indication that all facts and circumstances which will be the subject of CASA's consideration must be included in the show cause notice.
Of course, it is well established that in reviewing a reviewable decision, this tribunal stands in the shoes of the decision-maker, and may exercise all of his or her powers and discretions. In addition, if the decision-maker lacks jurisdiction, then this tribunal also has no jurisdiction. It is also clear that apart from the issue raised by the requirements for a show cause notice, this tribunal can, in conducting its review, consider further evidence and issues not raised before the decision-maker who made the reviewable decision: see paragraph 28 above. However, if the jurisdiction conferred on a decision-maker by legislation is subject to compliance with a condition precedent, then neither the decision-maker nor this tribunal has jurisdiction if that condition precedent has not been complied with: see for example Re SLE Medical Pty Ltd and Industry Research and Development Board (1988) 19 ALD 215.
Mr Winter contended, consistently with the above principles, that the jurisdiction of CASA was limited to the matters put to Mr Johanson in the show cause notice, and that the jurisdiction of this tribunal is similarly restricted when it stands in the shoes of CASA in reviewing CASA's decision. He accepted that CASA (and this tribunal) could consider fresh evidence, but only evidence related to matters that had been included in the show cause notice.
The extent to which an agency can go beyond matters raised in a show cause notice was considered in a case not referred to by either party, namely Murdaca v Australian Securities and Investments Commission [2009] FCAFC 92; (2009) 178 FCR 119. This case related to ASIC's power under provisions of the Corporations Act to disqualify a person from managing a corporation following the service of a show cause notice. A Full Court of the Federal Court pointed out at [93] that neither the relevant section nor the prescribed form of show cause notice required that all matters and all materials which would or might be taken into account by ASIC when it came to consider the question of disqualification needed to be specifically and exhaustively mentioned in the show cause notice. The relevant provisions of the Corporations Act which the Court considered in Murdaca differ from the provisions of CAR 269; they only required the show cause notice to refer to ASIC's "concerns", and the matters that ASIC could take into account when considering whether or not to disqualify the person were expressed in wide terms. Nevertheless, the Court (North, Kenny and Forster JJ) summarised the structure of the relevant section in the Corporations Act, and said at [101], omitting references to the relevant subsections, that it comprised the following, in ascending order of importance:
- (i) a trigger mechanism (the conditions, filters or gateway) ... (Stage 1) (being a requirement that the person, within certain specified periods, had been an officer of 2 or more corporations which were wound up and were the subject of a liquidator's report to ASIC relating to inability to pay their debts, or to the person's misconduct_);_
- (ii) a procedural fairness requirement (the giving of a show cause notice and an opportunity to be heard) ... (Stage 2): and
- (iii) a merits decision captured in the requirement that ASIC be satisfied that disqualification is justified ... (Stage 3)."
In my view, the process that is envisaged by CAR 269 is similar to the process described in Murdaca, and can be notionally divided into 4 stages, as follows.
- (a) Stage 1 of the process is provided for in CAR 269(3)(a). This contemplates that CASA has become aware of facts and circumstances that in its opinion warrant consideration being given to the variation, suspension or cancellation of an authorisation previously granted to a person.
- (b) Stage 2 of the process is the procedural fairness stage; it involves CASA giving a show cause notice to the person, giving and affording the person an opportunity to be heard. As pointed out above, this must include "the" facts and circumstances that warrant that consideration, (and in this respect, CAR 269(3)(a) differs from the section under consideration in Murdaca). As the Court pointed out in that case at [125], there is then a very real prospect that at this stage, additional or relevant material will become known, and this negates the proposition that the show cause notice must contain everything upon which (in that case) ASIC would or might rely when deciding whether or not to disqualify.
- (c) Stage 3 of the process under CAR 269 is to consider whether one or more of the grounds in CAR 269(1) exist, so as to enliven the power to vary, suspend or cancel the relevant authorisation.
- (d) Stage 4 of the process, namely the requirement to make a decision to vary, suspend or cancel the authorisation, arises if such grounds are found to exist.
In Murdaca, as mentioned above, the grounds on which a disqualification decision could be made were referred to in the Corporations Act. However, they were expressed in wide terms, and as the Court pointed out the grounds were not confined to the concerns that had been notified in the show cause notice. CAR 269(1) also does not restrict CASA to a consideration of the grounds notified in the show cause notice. It confers unrestricted discretion, but that discretion must, of course, be determined by reference to the subject matter, scope and purpose of the Civil Aviation Act and the Regulations. CASA must take into account the main object of the Act as explained in s 3A, namely to establish a regulatory framework for maintaining, enhancing and promoting the safety of civil aviation, with particular emphasis on preventing aviation accidents and incidents.
In my opinion, on the proper construction of CAR 269, it is not necessary for CASA to include in the show cause notice all of the matters on which it intends to rely when deciding whether or not to vary, suspend or cancel an authority. I consider that the issue of a show cause notice under CAR 269(3) is intended to initiate a process whereby the opinion which CASA has formed at that stage (i.e. that certain facts or circumstances warrant consideration being given to variation, suspension or cancellation of an authorisation) will be further investigated; the person concerned will have an opportunity to respond to the matters previously raised by CASA; and CASA might be expected to further investigate the matter in the light of the person's response. Having regard to the public interest in the ultimate decision to be made (that is, whether or not to vary, suspend or cancel the authorisation), it would I think be inappropriate not to take into account further matters that might arise from CASA's continuing investigation, including any new matters that might arise from the person's response, or from any continuing investigations that CASA might make into the matters that gave rise to its initial opinion, or further matters that might independently come to its attention. It would, however, be incumbent on CASA to advise the person concerned any such new matters, in order to fulfil its obligations to afford procedural fairness: see Murdaca at [126].
I therefore turn to a consideration of the further matters raised by Miss Ford in her final address, notwithstanding that they were not included in the show cause notice or taken into account in the reviewable decision.
Returning to Narrandera from Parafield - On the basis of the evidence adduced at the hearing, CASA alleges that Mr Johanson took off from Parafield at 11.19 pm on 19 January 2010, thus engaging in a further flight after daylight. CASA relies upon the evidence of Mr La Forgia, who said that he observed the white tail wheel aircraft that he had seen land earlier in the evening taxi past the University building at Parafield Airport, proceed to runway 03 and depart on a straight out approach from that runway, heading in the same direction from which it had approached earlier that evening. He estimated that this occurred at about 11.15 pm local time. He said that he observed the aircraft from the University building, and had a very good view of it, and was 99% sure that it was the same aircraft that had landed while he was doing his practice circuits. Mr Jamieson produced further radar tapes which showed an aircraft, without an active transponder, taking off from runway 03 at 11.19 pm local time. He also tracked the course of the aircraft for a distance of about 32 nautical miles, until it was out of radar range. He said that the direction taken by the aircraft was similar to, but slightly further towards the north of, the track of the unidentified aircraft that had landed at 9.25 pm local time that evening.
Mr Johanson admitted that he refuelled his aircraft after landing at Parafield. CASA had produced BP fuel records and other evidence showing that Mr Johanson had purchased fuel for his aircraft at 10.28 pm local time. In his evidence-in-chief, Mr Johanson said that he flew back to Narrandera from Parafield at first light the next morning. However, his evidence as to this matter later in the proceedings was somewhat inconsistent, in that at one stage he denied that he had flown back to Narrandera on the evening of 19 January, but on the other hand he claimed privilege against self-incrimination when being pressed on this issue. He was also vague in answering questions as to where he had spent the night of 19 January 2010. Mr Winter submitted that the fact that the aircraft that took off at 11.19 pm did not have an active transponder indicated that this was not Mr Johanson's aircraft. However, it was not disputed that a transponder can be turned off simply by operating a switch. Mr Johanson did not include the return flight from Parafield to Narrandera in his pilot's log book. I do not accept Mr Johanson's denial, and find that he took off at 11.19 pm on the night in question and returned to Narrandera in order to return the instrument to the people who urgently needed it. Having regard to his experiences in flying at night, it appears that this flight was not in itself unsafe, although flying at night meant that the relevant exemptions from relevant CARs no longer applied, and the flight therefore constituted a further contravention of s 20AB of the CA Act, and his subsequent failure to complete the pilot's log book, as mentioned above, constituted a contravention of CAR 5.52(4).
Flying the Derringer without a certificate of airworthiness - Miss Ford also referred to evidence from Mr Eastwood that Mr Johanson had flown an aircraft referred to as the Derringer on two occasions, in December 2007 and January 2008, and according to exhibit R43, the aircraft did not have a certificate of airworthiness. When he was asked about this in cross-examination, Mr Johanson, having been informed of his right to silence, declined to answer the question, saying that more and more things were being dragged up and wanted to keep to what was already on the paperwork. Mr Eastwood's evidence has therefore not been refuted, and I am inclined to accept it (notwithstanding that this matter was not canvassed with the other witnesses who worked at Goolwa Airport).
Flying the Treth 6 without a permit - Mr Johanson admitted to test flying the Treth 6 on earlier occasions, when it had the call sign VH-IRN. CASA produced evidence that this call sign was a dealer's mark, that the aircraft could only lawfully be flown if a Special Flight Permit had been issued, and that there is no record of the mark having been utilised on any aircraft between 11 March 2005 and 28 September 2011 (see the statement of Jurgen Schob included as T100 in exhibit R51(a) at page 434). It accordingly appears that Mr Johanson's conduct in flying this aircraft under the call sign VH-IRN constituted further contraventions of the CA Act, although the circumstances in which this occurred were not fully explored.
Flying after cancellation of licence - In her address, Miss Ford finally referred to evidence that emerged prior to the stay application to the effect that Mr Johanson had continued to fly after the cancellation of his licence in August 2010. I referred to Mr Johanson's explanation for this matter in paragraph 18 above.

Should the penalty for proven contraventions be fixed by reference to the demerit points regime, or pursuant to the power to vary, suspend or cancel licences under CAR 269(1)?

Mr Winter referred to the demerit points scheme provided for in Division 3D of the CA Act, which enables regulations to prescribe particular offences which will result in the incurring of demerit points, and for the consequences of incurring demerit points. These consequences envisage the giving of a first-time demerit suspension notice, where at least 12 demerit points have been incurred during the preceding three years, and a second-time demerit suspension notice which may be given where the holder has incurred at least six demerit points after previously receiving a demerit suspension notice. These notices result in periods of suspension of 90 days, 120 days or 150 days that are fixed by ss 30DY and 30DZ of the CA Act according to the number of accrued demerit points. Pursuant to s 30DZ of the CA Act, where a second-time demerit suspension notice is issued, relatively fewer demerit points result in such periods of suspension. Mr Winter submitted that this penalty regime was objective and structured, and should be followed unless there is good reason why CASA should "jump from" a first-time demerit suspension notice to a more severe penalty, such as a suspension under CAR 269(1)(c) or (d). He contended that the matters that have been proven against Mr Johanson in these proceedings do not warrant a jump from the first-time demerit suspension notice to a total cancellation under CAR 269(1).
I accept that the demerit points scheme has the advantage that it provides a structured and objective penalty regime, in that persons who contravene relevant regulations can ascertain how many demerit points have been incurred, and the consequences of their offending. Mr Winter particularly drew attention to that aspect of the demerit points scheme in the present matter, due to the inconsistent approach of officers of CASA in relation to both the 2008 contraventions and the contraventions on 19 January 2010, which he said apparently arose from "political" differences within CASA.
However, it seems to me that the purpose of the demerit points scheme, and the circumstances in which its provisions should be invoked, are different from the position under CAR 269(1). The demerit points scheme is an alternative to prosecuting the holders of licences and other authorities for breaches of their duties. The Explanatory Memorandum in respect of the Bill which introduced Division 3D of the CA Act refers to the scheme as a system for minor infringements of the regulations. The structured provisions that involve demerit points and stated periods of licence suspension according to accumulated demerit points are the penalties that are fixed by the CA Act if CASA decides to issue demerit suspension notices instead of instituting a prosecution. But CAR 269(1) has a different purpose, and should be used where one of the relevant grounds provided for in CAR 269(1) exists and where CASA thinks it appropriate to consider the variation, suspension or cancellation of a person's licence or authority. The first ground in CAR 269(1) is that the holder of the licence has contravened a provision of the CA Act or the CAR. However, the other grounds referred to are broader than this, and for example include a failure in the broadly described duty referred to in CAR 169(1)(c), and the fit and proper person ground in CAR 269(1)(d). CAR 269(1) confers powers which are intended to enable CASA to vary, suspend or cancel relevant authorisations.
Ms Ford submitted on the basis of Australian Securities Commission v Kippe (1996) 67 FCR 499 that the purpose of CAR 269 was protective, whereas the demerit point regime was punitive in character and, accordingly, the two regimes operated in parallel. I agree that CAR 269 should be used to protect the public (although the effect of any determination to vary, suspend or cancel an authorisation might also have a punitive effect, as explained below). I note that Kippe was later overruled by the High Court in Rich v Australian Securities and Investments Commission [2004] HCA 42; (2004) 220 CLR 129, insofar as it decided that a proceeding for a banning order was not to be characterised as a "proceeding for the imposition of a penalty" within the meaning of the legislation there under consideration. Nevertheless, it is significant that under s 9A of the CA Act, in exercising its powers and performing its functions, CASA must regard the safety of air navigation as the most important consideration. In my view CASA has acted properly in taking action pursuant to CAR 269 so as to invoke its discretion to consider the variation, suspension or cancellation of Mr Johanson's flight crew licences. CASA was under no obligation to proceed under the demerit points scheme in consequence of the conduct in which he engaged. And this was so, notwithstanding that it had elected to issue expiation notices pursuant to the demerits scheme in respect of the 2008 contraventions.

CAR 269(1)(c) - Has the applicant failed in his duty with respect to any matter affecting the safe navigation or operation of an aircraft?

Section 3A of the CA Act provides that its main object is to establish a regulatory framework for maintaining, enhancing and promoting the safety of civil aviation, with particular emphasis on preventing aviation accidents and incidents. CAR 269(1)(c) provides that a failure in a "duty with respect to any matter affecting the safe navigation or operation of an aircraft" is a ground for varying, suspending or cancelling a licence, certificate or authority. The words "with respect to any matter affecting" are words of wide import, and include duties or obligations arising not only under the CA Act or the CAR, but any other Acts or delegated legislation relating to the safe navigation or operation of an aircraft. Further, in my opinion CAR 269(1)(c) would apply wherever a pilot was in breach of a duty of the type referred to (that is, a duty with respect to any matter affecting the safe navigation or operation of an aircraft), even though the conduct in question was not itself unsafe.
In the present matter, I have concluded that in many instances, Mr Johanson failed in a range of relevant duties. The legislation and regulations which on my findings Mr Johanson has contravened impose duties with respect to matters affecting the safe navigation or operation of an aircraft. I am satisfied that the ground referred in CAR 269(1)(c) exists.

CAR 269(1)(d) - Is the applicant not a fit and proper person to have the responsibilities and exercise and perform the functions and duties of the flight crew licences ratings and endorsements that he held?

In Re Repacholi and Civil Aviation Safety Authority [2003] AATA 573; (2003) 75 ALD 312, this tribunal, constituted by Deputy President Hotop and Air Marshall Gration, said (at [88]):

"The expression 'fit and proper person', which commonly appears in licensing and other forms of regulatory legislation, must be interpreted having regard to the particular legislative context in which it appears: Maxwell v Dixon [1965] WAR 167 at 169; Re Taylor and Department of Transport (1978) 1 ALD 312 at 321; Re Griffiths and Civil Aviation Authority (1994) 34 ALD 554 at 559. In the present case the question for the tribunal to determine is not merely whether the applicant is, or is not, a fit and proper person; rather, it is whether the applicant is, or is not, 'a fit and proper person to have the responsibilities and exercise and perform the functions and duties of a holder of' a pilot licence ...".

One of the requirements that must be satisfied for a person to be granted a flight crew licence is that the applicant should be a fit and proper person to hold the licence: CAR 5.09(1)(c). CAR 5.09(3) confines the matters that CASA may take into account in determining this issue to the following matters:

"(a) any action taken by CASA, or a responsible organisation, in relation to any authority to perform duties essential to the operation of an aircraft during flight time that was given to the applicant by CASA, or the organisation; and

(b) any other matter that relates to the safety of air navigation."

However, CAR 269(1)(d) is expressed in broader terms, and requires consideration of whether the holder of the licence is not a fit and proper person to have the responsibilities and exercise and perform the functions and duties of the holder of the licence or other certificate, approval or authority. I agree with respect with the remarks of the tribunal in Repacholi (supra) at [89], where the members of the tribunal said:

"In the tribunal's opinion it is appropriate, in determining whether a person is a 'fit and proper person' for the purpose of deciding whether to cancel that person's licence under reg 269(1) of the regulations, to have regard to a wider range of considerations than is permissible when determining whether a person is a 'fit and proper person' for the purpose of deciding whether to issue a licence to that person under reg. 5.09(1) of the regulations. In the latter case it appears, from reg 5.09(3) of the regulations, that the category of matters that may be taken into account is limited to matters that relate to the safety of air navigation. In the former case, however, it is appropriate that consideration be given not only to matters relating to the safety of air navigation but also, inter alia, to the licence holder's past record of compliance, or non-compliance, with the regulations during the currency of their licence as indicative of the likelihood of their complying, or not complying, with the regulations in the future, and of their respect, or lack of respect, for the regulations and civil aviation regulatory legislation generally. The tribunal accepts Mr Shield's submission that, in the present case, it is appropriate for it to have regard to the applicant's conduct in his dealings with CASA officers in their professional capacities, and at least in so far as such conduct is indicative of the degree of the applicant's respect, or lack thereof, for the civil aviation laws and for those persons whose professional responsibility it is to uphold and enforce them."

As appears from these reasons, I am not satisfied that Mr Johanson was guilty of all of the contraventions alleged by CASA, including some of the more serious of such alleged contraventions. Nevertheless, I am also satisfied that he did commit a significant number of contraventions. I regard some of those contraventions as serious matters that entailed potentially significant risks to safety. I refer for example to the fourth 2008 incident, when Mr Johanson flew in an aircraft in Phase 1 testing with a passenger on board, his taking off from the paddock at Finniss at night, and also to his failure on 19 January 2010 to make radio calls prior to landing at Parafield Airport. In addition, irrespective of whether Mr Johanson was technically guilty of aiding and abetting the commission of offences by Mr Wyatt, I consider that he acted irresponsibly in arranging for Mr Wyatt to fly the Treth 6 on the outback tour in 2008 without making further inquiries of Mr Trethewey to make sure that the aircraft was duly registered, and that the necessary certificate of airworthiness and maintenance release were in order. In referring to these specific matters, I do not imply that it was not important for Mr Johanson to comply with all of the other duties which on my above findings he contravened.
In the context of CAR 269(1)(d), I have greater concerns about Mr Johanson's attitude to compliance with relevant regulatory duties. I have found that in a number of instances, he endeavoured to conceal his contraventions from CASA. He omitted unlawful flights from his personal log book, such as the flight from Narrandera and return in January 2010, and he made false entries in his log book in relation to the outback tour. When making radio calls he identified a different aircraft from the one he was flying on the flight from the paddock at Finniss to Goolwa Airport, and he also failed to make radio transmissions when approaching Parafield Airport on 19 January 2010. He also turned his transponder off on the return flight to Narrandera. In view of these matters, in conjunction with the matters referred to in the preceding paragraph, I would ordinarily have had no hesitation in finding that Mr Johanson was not a fit and proper person for the purposes of CAR 269(1)(d).
However, I also take into account other matters in Mr Johanson's favour. These matters include the fact that he has been flying for over 30 years and has accumulated over 8,000 flying hours, and subject to CASA's recent criticism of references in his book "Aiming High" and the contraventions to which I have referred above, he has no record of offences arising out of his conduct as a pilot. I accept his evidence to the effect that he is extremely safety conscious, and takes great care to ensure that the aircraft he flies are at all times in a safe condition. Whilst Mr Johanson contested many of the contraventions asserted by CASA in these proceedings, he did acknowledge that he should not have taken off from the paddock at Finniss at night, that this was unsafe, and that he put safety ahead of the rules in doing so. He also maintained in effect that there were times when a pilot had to exercise his or her own judgment when determining issues of safety, and he referred to some regulatory requirements as technical or administrative requirements which were often not strictly complied with by him and other pilots in practice, and also to changes that had been made periodically to various rules. However, he also accepted that the rules existed for very good reason, and I think he now appreciates the importance of complying with regulatory requirements in all respects. Further, he has now had the benefit of hearing the case presented by CASA in these proceedings, including the evidence presented by officers of CASA, and in particular the witness Michael John English. Mr English explained the importance of the regulatory regime, the reasons why the range of duties that now exist have been developed over the years in consequence of past experience, the fundamental importance of compliance with all aspects of duties and obligations relating to air safety by everyone concerned, and the dangers of persons making subjective judgments as to the need to comply with particular duties. Mr Johanson will also be aware from these proceedings of the thoroughness and rigour which CASA very properly employs in detecting and investigating potential breaches of the CA and CAR, and the significant resources CASA utilises for that purpose. In addition, he will have the benefit of reading this tribunal's assessment of the issues that have arisen and its assessment of his conduct. I also accept Mr Winter's submission, to which I will refer further below, that Mr Johanson is unlikely to offend again. Finally, and whilst Mr Winter has made a point of saying that Mr Johanson is not seeking to rely upon or hide behind his flying record to protect him from criticism for failure to comply with relevant rules and regulations, I take into account his undoubted exceptional skills as a pilot, and his record of achievements, to which I referred in paragraph 11 above.
Balancing the considerations to which I have referred, I am not satisfied that Mr Johanson is not a fit and proper person to have the responsibilities and exercise and perform the functions and duties of a holder of a licence, certificate, approval or authority, within the meaning of CAR 269(1)(d).

SHOULD THE APPLICANT'S LICENCES, RATINGS AND ENDORSEMENTS BE VARIED, SUSPENDED OR CANCELLED?

Once CASA, or this tribunal standing in CASA's shoes when it reviews its decisions, is satisfied that one or more of the specified grounds exist, it has a discretion to vary, suspend or cancel the relevant licence, certificate, approval or authority. The considerations that must be taken into account in exercising that discretion are not enumerated, but must be determined from the subject matter, scope and purpose of the CA Act and CAR, having regard to all relevant considerations, and disregarding any irrelevant considerations, as so determined: Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24 at 39 - 40. As mentioned above, s 3A of the CA Act provides that its main object is to establish a regulatory framework for maintaining, enhancing and promoting the safety of civil aviation, with particular emphasis on preventing aviation accidents and incidents. Consistently with this object, s 9A(a) provides that in exercising its powers and performing its functions, CASA must regard the safety of air navigation as the most important consideration.
I have noted the minute of 3 July 2009 referred to in paragraph 20 above, which described Mr Johanson as an experienced pilot and not a major safety risk, and also the fact that CASA saw fit to deal with his conduct in relation to the 2008 incidents pursuant to the demerit points scheme, with the issue of five infringement notices and an earlier recommendation for the issue of only three such notices. These matters have some limited relevance, but it should nevertheless have been apparent to Mr Johanson from the letter to him dated 25 June 2009, in which CASA advised him of its decision, that CASA remained concerned about his conduct, and that the relevant events that had been referred to in the show cause notice would be taken into account in any determination that CASA might make in relation to any future conduct that might come to CASA's attention. In any event, having regard to the principles referred to in paragraph 28 above, I must make my own assessment of the relevance of the incidents in 2008 in exercising the discretion conferred by that regulation.
Some of the contraventions asserted by CASA have not been established to my satisfaction, but many others have been so established. I have discussed various contraventions in some detail, and I regard some of the contraventions as significant. I also take into account that a number of the contraventions were of regulations which provided for the imposition of demerit points, and so were apparently regarded as potentially minor infringements. Mr Johanson was competent and no doubt completely confident of his ability to fly at night on 19 January 2010. He apparently had altruistic motives in flying from Narrandera to Parafield and return on that occasion, in view of the urgent need of the persons in Narrandera to have the relevant instrument repaired, but this cannot of course in any way excuse contraventions of relevant regulations.
I referred in paragraphs 141 - 145 to a number of issues and aspects of Mr Johanson's conduct in the context of CAR 269(1)(d), and I have also taken these matters into account insofar as they relate to their relevance to safety and the need to protect the public in considering whether his flight crew licences should be varied, suspended or cancelled.
Mr Winter referred to hardship resulting to Mr Johanson as a result of the cancellation of his flight crew licences. Evidence was led as to the significant drop in the sales of Flymore Pty Ltd. However, as Miss Ford submitted, it appears likely that this was the result of the company moving from the premises at Goolwa, and not the cancellation of the licences (although the cancellation of his licences has no doubt delayed or impeded him in re-establishing his business at his new premises). Mr Winter further submitted that the cancellation of Mr Johanson's licences has had a significant effect on his reputation in the part of the aviation industry where he is very well known, and that effect may well continue to cause significant difficulties for Mr Johanson and his business operations. Mr Winter also said that Mr Johanson has incurred considerable legal expenses in connection with these lengthy proceedings, and has had to work double shifts as a nurse in order to meet his legal expenses. These further matters have no doubt caused considerable personal hardship, and Mr Winter submitted that as a result, and having regard to Mr Johanson's love of flying, it was most improbable that he would offend again if his licences were reinstated.
The question of whether hardship to an applicant could properly be taken into account when considering the variation, suspension or cancellation of a commercial pilot licence was considered by this tribunal in Re Taylor and Department of Transport (1978) 1 ALD 312 at 319 - 325, where the tribunal reviewed a number of relevant cases. More recently, the approach adopted by Courts to issues of disqualification under corporations legislation was discussed by McHugh J in Rich (supra) at [41] - [43]. His Honour discussed whether the relevant legislation was purely protective of the public interest, and said:

"[41] ... I think that the factors that courts take into account when ordering disqualification and fixing periods of disqualification under the corporations legislation make it impossible to hold the "civil penalty" provisions and, in particular, the disqualification provisions, are purely protective in nature. Despite frequent statements by the judges who administer the legislation that the purpose of the disqualification provisions is protective, what the judges actually do in practice is little different from what judges do in determining what orders or penalties should be made for offences against the criminal law. Elements of retribution, deterrence, reformation and mitigation as well as the objective of the protection of the public inhere in the orders and periods of disqualification made under the legislation.

[42] If the disqualification provisions were purely protective, the only issue for the court would be whether the defendant is now or will in the future be a fit and proper person to manage corporations. If the court were to find that, despite the misconduct, the defendant is now a fit and proper person to manage corporations, the court should refuse to make an order of disqualification. If the court were to find that the defendant would be a fit and proper person to manage corporations in the future, the only issue for determination would be the time when that would occur. Moreover, if the jurisdiction were purely protective, it is hard to see why orders for disqualification should be for fixed periods, as they almost invariably are. Fixed periods of disqualification suggest punishment rather than protection in the same way that disqualification from driving for a period is a punishment rather than an act protective of the public. If the jurisdiction were purely protective, one might have thought that the proper order would be indefinite disqualification with the onus on the defendant to show at some future date that he or she were now a fit and proper person to manage corporations (98). At all events, if the jurisdiction were purely protective, the defendant should have liberty to apply during the period of disqualification to show that he or she is now a fit and proper person to manage corporations.

[43] In exercising their discretion, however, courts which administer the legislation do not concern themselves solely with the issue of whether the defendant now is or in the future will be a fit and proper person to manage corporations. They take into account a wide variety of factors in addition to determining whether any and, if so, what period of disqualification should be imposed. They consider more than the present and future fitness of the defendant to manage corporations. They take into account factors such as the size of any losses suffered by the corporation, its creditors and consumers, legislative objectives of personal and general deterrence, contrition on the part of the defendant, the gravity of the misconduct, the defendant's previous good character, prejudice to the defendant's business interests, personal hardship and the willingness of the defendant to render assistance to statutory authorities and administrators. No doubt some - maybe all - of these matters are relevant in determining whether the defendant ought to be disqualified or the period of disqualification that is required in order to protect the public. But in practice courts do not use these matters merely as evidentiary indicators of the time when the defendant will, if ever, be fit to manage corporations. Rather, they become part of a synthesis from which the judges make a value judgment concerning whether to order disqualification and, if so, the period of disqualification that should be imposed. It is not the practice of judges to say: "On the evidence, I find that after (say) five years, the defendant will be sufficiently reformed to make it safe for him or her to manage corporations." This suggests that the disqualification provisions are not purely protective in nature."

His Honour's analysis cannot be applied directly to cases arising under CAR 269(1), having regard to the strong emphasis on public safety that is expressly declared in ss 3A and 9A(1) of the CA Act; that emphasis is inherent throughout the CA Act and the CAR. Further, CAR 269(1) incorporates a power of cancellation, not merely disqualification for a period. In addition, some of the considerations referred to in paragraph 43 of the above extract from McHugh J's judgment in Rich relate to the characteristics of corporations in the business community, and are not of course relevant to CAR 269. In addition, the question of whether a person is a fit and proper person to hold an authorisation is only one of the grounds which enliven CASA's powers under CAR 269(1). Having regard to the above considerations, I consider that in the present case, whilst the matters of personal hardship to which Mr Winter referred are relevant, they should be given less weight in exercising the discretion conferred by CAR 269(1) than might apply in cases involving the disqualification of directors. However, I think I can also take Mr Winter's further submission into account insofar as the hardship Mr Johanson has suffered is such as is to make it unlikely that he would offend again if his licences were to be reinstated, and this is a consideration relevant to the protection of the public.
In all of the circumstances, I think that it is inappropriate to cancel Mr Johanson's licences and authorities, but that a substantial period of suspension should be imposed. This should protect the public, and will also constitute a punishment for the contraventions and conduct to which I have referred, and will deter him from future transgressions. In addition, it should act as a deterrent to others from contravening or not respecting the importance of the air safety regime that applies in Australia (and I regard this as a relevant consideration, as it is consistent with the protective purpose of CAR 269). I have concluded that Mr Johanson's flight crew licences should be suspended until 12 August 2012, being two years after the date of the reviewable decision to cancel the licences. I invited Miss Ford to indicate whether in the event of my deciding to suspend rather than cancel the licences, CASA wished to suggest the imposition of any conditions on the licences, but no conditions have been proposed, and I accordingly will not exercise the discretion under CAR 269(1) to vary the licences by imposing any conditions.

The tribunal sets aside the decision under review and in substitution for that decision decides that the flight crew licences held by the applicant be suspended until 12 August 2012.

I certify that the preceding one hundred and fifty five (155) paragraphs are a true copy of the reasons for the decision herein of Deputy President D G Jarvis

Aviation Regulations 1988

Aviation Safety Regulations 1998

Safety Investigation Act 2003

Interpretation Act 1901

Transactions Act 1999

Johanson and Civil Aviation Safety Authority [2012] AATA 239 (27 April 2012)

Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336

Bushell v Repatriation Commission [1992] HCA 47; (1992) 175 CLR 408

Goulding v Chief Executive, Ministry of Fisheries [2003] NZCA 244; (2004) 3 NZLR 173

Hanna v Migration Agents Registration Authority [1999] FCA 1657; (1999) 94 FCR 358

McDonald v Director-General of Social Security [1984] FCA 57; (1984) 1 FCR 354

Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24

Murdaca v Australian Securities and Investments Commission [2009] FCAFC 92; (2009) 178 FCR 119

Pongrass Group Operations Pty Ltd v Minister for Planning [2007] NSWLEC 638

Rana v University of South Australia [2007] FCAFC 188

Re De Brett Investments Pty Ltd and Australian Fisheries Management Authority and Anor [2004] AATA 704; (2004) 82 ALD 163

Re Mulligan and Civil Aviation Safety Authority [2006] AATA 652

Re Repacholi and Civil Aviation Safety Authority [2003] AATA 573; (2003) 75 ALD 312

Re Weiss and Secretary, Department of Family and Community Services [2004] AATA 758; (2004) 83 ALD 706

Rich v Australian Securities and Investments Commission [2004] HCA 42; (2004) 220 CLR 129

Shi v Migration Agents Registration Authority [2008] HCA 31; (2008) 235 CLR 286

_Australian Securities Commission v Kippe_

At a glance

Court

Decision date

Source

Judgment (71 paragraphs)

Parties

Legislation Cited (7)

Cases Cited (28)

Johanson and Civil Aviation Safety Authority [2012] AATA 239 (27 April 2012)