1. The Applicant was issued with a show cause notice in April 2024 and was granted extensions to respond on 24 October. He and his representatives attended a conference with CASA on 18 November 2024, during which further submissions were made.
2. In his response, the Applicant asserted CASA had based its decision on the (criminal) charges preferred against him and had denied him procedural fairness. The regulator denied both assertions.
3. The decision by the chief executive manager of national operations and standards is lengthy and refers to a number of sources of information:

a) the substance and action taken with respect to two prior Show Cause Notices in 2016 and 2018- 2019 respectively. > > b) The circumstances of the fatal air crash in 2022 and information acquired during that joint investigation; > > c) Information elicited from a number of sources including footage of the Applicant's television series and other media outlets ; > > d) Further information provided after a public appeal was made for witnesses relating to an incident in August 2018.

1. On 9 March 2016, the Applicant was issued with a Notice of Counselling following a process in which he was asked to show cause why a recommendation should not be made to a delegate of CASA that his ATPLH and CPLH be varied, suspended or cancelled. The contraventions alleged in the Show Cause Notice, dated 14 August 2015 (the 2015 SCN) included:
   1. "failing to ensure that a seat belt or safety harness was worn at all times during flight by at least one of the pilot crew members;
   2. failing to ensure that seat belts were worn by all crew members and passengers during take-off and landing;
   3. operating aircraft VH-MGA with unrestrained cargo positioned on the back seat and floor of the aircraft;
   4. operating aircraft VH-BJJ with a dog unrestrained, sitting in the front passenger foot well of the aircraft;
   5. modifying(by attaching camera mounts) an Australian aircraft in breach of regulation 42U(1) of the CAR;
   6. conducting unauthorised commercial (filming activities) flying operations (not covered by the AOC);
   7. failing to ensure the safety of the R44 aircraft with registration mark VH-RPZ during flight time, and consequently leading to an accident (heavy landing);
   8. permitting a human (Mr Brewster) to be carried in a sling attached to the aircraft without the written permission of CASA; and
   9. dangerously flying an unidentified black Robinson helicopter in close proximity of Mr Butler and others"
2. None of the above conduct was challenged by the Applicant,[7] although some matters were subsequently viewed as not amounting to a regulatory contravention.

1. In 2019, conditions were imposed on the Applicant's licences by a CASA delegate as a result of the following conduct:

a) failure to ensure that, during the relevant part of the flight, heremained at the controls of the helicopter at all times; > > b) failure to fly over water at a distance from land greater than the distance from which the aircraft could reach land if the engine were inoperative; > > c) a breach of statutory responsibility to ensure, among other things, the safety of the aircraft during flight time; > > d) operation of the helicopter being reckless and/or negligent as to whether the manner of operation could endanger the person or property of another person; and > > e) breaches of various provisions of the Helibrook Operations Manual.

2. The conditions imposed on his flight crew licence required the completion of a series of five flight reviews at 6-monthly intervals to ensure appropriate command judgment.
3. The delegate was satisfied that the Applicant, based on the above and earlier disciplinary history, was not a fit and proper person:

you displayed a concerning and repeated disregard for safety in your operation of an aircraft.... Due to a lack of appreciation and understanding of the potential risks attending your conduct .... By your conduct you have demonstrated a seriously concerning lack of judgment and risk management that cannot be adequately compensated for, however proficient your manual flying skill[8]

1. None of the above conduct was challenged by the Applicant.

CASA and Police Investigation of 2022 accident:

1. In the course of the joint investigation of the fatal crash, evidence was gathered of other conduct which was considered by the delegate as a failure of the Applicant's duty in operating, including:[9]

a) "requiring, participating in or encouraging the falsification and under recording of flight time information for helicopters in use with Helibrook; > > b) falsification and/ or participation in a conspiracy to commit falsification of maintenance records; > > c) unauthorised aviation manoeuvres, including for example the hover entry/exit incident on 4 August 2018; > > d) failure to report damage to an aircraft and associated failures to conduct appropriate investigations to assess aircraft damage, for example following the incident on 25 January 2021; > > e) various incidents of improper conduct such as those described at paragraphs [134] to [137], which include significant dangers to the operation of an aircraft and to associated personnel; > > f) authorising and supporting unlicensed personnel to pilot aircraft, in particular with respect to Mr Christopher Wilson; > > g) requiring pilots under your remit to breach regulatory requirements, for example with respect to your direction on 26 January 2022 to require pilots to breach alcohol consumption regulations or concerning your directions to Mr Robinson which are described at paragraphs [166]]; and > > h) various incidents in which you have been identified as being the pilot in command of reckless or dangerous operation of an aircraft and have engaged in reckless or dangerous behaviour, for example the incidents on 11 October 2021, 25 October 2021, 23 June 2021 and 14 January 2022."[10]

1. Both parties filed brief written submissions and spoke to them. The main issues that the Applicant raises is that CASA has not challenged his competence as a pilot. He denies the allegations arising from the investigation into the 2022 crash and characterises the remaining allegations as historical in nature, asserting that some pertain to record-keeping matters while others are consequential to the 2022 incident.[11]. He contends if a stay were not granted, he would continue to be able to undertake some piloting work as he retains a Private Pilot's License Helicopter (PPLH) but would suffer financial hardship as he would be unable to continue his commercial business, that is transporting guests to the resorts referred to above as an example.
2. He made the concession that his administrative practices may attract criticism, but as he no longer holds an Air Operatiors Certificate (AOC) and will be an employed pilot, thus relieved of significant responsibilities. Lastly it is contended that such conditions would address any safety issues.[12]
3. CASA contends that the Applicant cannot currently fly as a pilot due to his lack of appropriate medical clearance. In broad compass, CASA submits his compliance record, the lack of evidence to support financial hardship and his fitness to hold a licence all mitigate against the granting of a stay.

1. The Tribunal's consideration of the Applicant's prospects of success for the purpose of determining the stay application does not require the Tribunal to conduct a preliminary hearing of the review application on the evidence then available.[13]
2. What the Tribunal is tasked with is whether the facts, or points of law which if established at the substantive hearing", would provide a basis for the applicant's success (see Re Commonwealth of Australia and Quirke [1986] AATA 57."[14]
3. As the authority of Snook also relevantly, adverts to, even if the facts and circumstances are made out by CASA in a final hearing, cancellation is not the only outcome as Regulation 269 to the Act provides:

(1) Subject to this regulation, CASA may, by notice in writing served on the holder of a licence or certificate or an authority, vary, suspend or cancel the licence, certificate or authority where CASA is satisfied that one or more of the following grounds exists,...

1. It is uncontroversial that for the Applicant to be a holder of a CPHL, he must be considered a "fit and proper person", which was concluded adversely against him in the decision.
2. In Australian Broadcasting Tribunal v Bond, the High Court held that an assessment of whether a person is a 'fit and proper person' involves an evaluation of their character, reputation, and conduct, including any past breaches of the law or professional standards.[15]
3. In the case of Re Griffiths and Civil Aviation Authority,[16] the Tribunal applied the principles in Bond and said it was necessary to take into account the responsibilities, functions and duties of the holder of a commercial licence, privilege or permit.
4. Pertinently, the Tribunal considered it was not simply a question of competence and that it included the interests of the safety of air navigation and not only the interests of pilots, passengers, and owners of aircraft, but the interests of the public at large".[17] In Quadrio,[18] the Tribunal also emphasised that inquiring into the competence of the pilot was not determinative.
5. The Applicant's affidavit is brief and canvasses in the main the hardship which he would suffer if he were unable to regain his CPHL and the impact it would have upon his family. He does not address in detail many of the particulars of the CASA decision but admits unsatisfactory administrative practices on the date of the accident in 2022. Nonetheless, he contends that, Mr Robinson, the pilot on that day was competent to fly and sufficiently briefed to observe relevant requirements.[19]
6. His response to the show cause is more fulsome and joins issue with numerous grounds of the basis for the decision. It should be borne in mind that he is facing relevant criminal and workplace health and safety proceedings arising from the accident in 2022 and the brief contents of his affidavit are understandable to an extent. However, in Thomas, Senior Member Lazanas emphasised that the Applicant must demonstrate 'sufficiently arguable cases by pointing to cogent facts or legal errors that could lead to a different result'.[20]
7. The allegations comprising the disciplinary actions up and including the breaches in 2018 -19 are undisputed. Those constituting the basis for the reviewable decision largely remain contested, and the Applicant intends to present evidence at the substantive either to refute or to contextualise certain allegations.

1. The Applicant presses his experience and skill as a pilot in excess of 20 years and any concerns as to public safety can be managed by the imposition of conditions.
2. It is also argued by the Applicant that now that he no longer holds an AOC, matters raised by the regulator in relation to administrative practices will no longer be problematic.
3. The Tribunal is not so sanguine. There is a history of measures such as AINS and SCNs put in place to ensure compliance which has escalated to conditions being imposed. The infringements and the characterisation of them having "taken place many years ago"[21] minimises their significance.
4. The conduct since then constitutes some of the most grave that could be asserted against any licence holder from under-recording of an aircraft total time in service, attempted conspiracy to falsify maintenance records, hover entry/exit, tampering with equipment which meant flight time was not recorded and unlicensed flying by Mr Wilson.
5. As at the current state of the evidence, noting that the Tribunal ought not descend into a preliminary inquiry of the review and that the allegations the subject of the reviewable decision are contested.
6. .The Applicant's overall prospects in overturning the cancellation may be seen as unlikely given the history of safety breaches , the finding in 2018-19 that he was not a fit and proper person and the prior imposition of conditions on his license . Kambourakis is instructive here_[22]_. In that case, the Tribunal found that the applicant had ceased to be a 'fit and proper person' due to breaches of the professional code of conduct.[23] The Tribunal also considered the Applicant's past conduct and noted that mere contrition was insufficient to demonstrate future compliance with high standards[24]. Therefore, the prospects of success on the review would appear to be moderate at best.

Would imposition of conditions mitigate any risk?

1. The Tribunal must consider any impositions of conditions which may serve to mitigate such risk.
2. Risk assessment has been expressed as:

"138 a predictive exercise and while it is, naturally enough, liable to be influenced by factual findings about past events, the contemplation of risk entails the foresight of possible harm. It is an oddity to expect that the mere possibility of harm can or should be proven as a probability, as has been implied before (footnotes omitted)....Risks of harm must be heeded even if they are improbable eventualities".[25]( emphasis added)

1. In the Applicant's case, the prospect of risk must naturally include his prior conduct but also future harm. Whilst the events of the fatal accident and the subsequent evidence gathered, are the subject of controversy, the gravity of the risk to others of continuing to allow the Applicant to fly commercially is high even if improbable.
2. The Applicant pressed Glover and Civil Aviation Safety Authority which addressed this concept by imposing conditions upon a significantly ill pilot.[26] This was largely predicated upon confidence gained from medical expert opinion together with the isolated nature of the risk. However, the Tribunal noted such conditions should only be granted when risks are remote and manageable[27] and therefore weigh in favour of granting a stay if such risks can be properly mitigated. Glover also suggests that the remote nature of flying between rural properties reduces the risk of harming others.[28]
3. While the Applicant here does indeed fly remotely, he seeks to operate commercially, involving passengers and customers. This is opposed to Glover where flights were undertaken for personal reasons. Furthermore, in relation to whether the Tribunal should impose conditions upon the granting of the licence to mitigate any risk, the remote nature of the environment in which the Applicant operates does not properly mitigate any risk in circumstances where the Applicant intends to carry passengers.

The consequences for the Applicant if the stay were not granted

1. The Applicant contends he still holds a PPHL and is able to obtain work as an employed pilot, but it is much less remunerative that the cancelled licences for evident reasons. He deposes to work he has been undertaking to date. As I understand the argument, CASA have not seen fit to cancel that licence and that underscores his skill as a pilot.
2. CASA responds that currently the Applicant does not have a PPLH although he can apply for one, he would run the gamut of review and assessment by the Respondent, including that he is a "fit and proper person". It submits that a considerable part of the Applicants case relates to his ability to fly commercially including instructor, mustering, sling work and scenic flights.[29]He has not had the relevant medical clearance since November 2023 and could not be obtaining work he deposes to since that date. Therefore the status quo is that he is not able to undertake commercial work.
3. It should be said that the Applicants counsel indicated that the utilisation of the temporal language in the submission as him currently working was incorrect. The Applicant himself deposes to piloting work in the present tense. It is not the task of the Tribunal at this stage to resolve the apparent inconsistency.
4. Assuming he is able to nonetheless obtain his prior licensing, in terms of the impact upon him, the Respondent is critical of the lack of detail before the Tribunal.[30] The Tribunal accepts for current purposes, that he will continue to suffer adverse and significant financial impacts.
5. The applicant argues that the cancellation will cause him significant financial hardship, as he will be unable to operate his helicopter business. Anderson v Civil Aviation Safety Authority is highly relevant here.[31]. Here, Jagot J held that while hardship is a relevant consideration, it is not determinative. Section 9A(1) of the the Actdirects that safety of air navigation is the most important consideration, and deviating from this principle for hardship reasons would be an error of law.[32]
6. Furthermore, in CASA v Central Aviation Pty Ltd, the Court held that hardship is not rationally connected to the question of whether a person is a 'fit and proper person' to hold a license.[33] This would likely place moderate weight when advocating for the stay order.[34]

1. In Birdseye and Tax Practitioners Board [2020], Senior Member Olding considered the seriousness of the applicants conduct, finding that the public interest in the integrity of the tax system would not be served by granting a stay.[35] It is likely when considering the public's interest here that these criteria would weigh heavily in favour of upholding the license cancellation.[36] Hughes Aircraft Systems International v Airservices Australia reinforces the importance of maintaining the public confidence in regulatory bodies like CASA.[37]
2. Granting a stay here may undermine CASA's ability to enforce aviation safety regulations and protect the public. Anderson confirms that CASA's primary function is to ensure the safety of air navigation, and any decision that compromises this function would be contrary to the public interest. Kambourakis also supports this reasoning. The Tribunal noted that granting a stay could prejudice the respondent's ability to enforce regulatory standards and maintain public trust.[38]

Whether the review be rendered nugatory if stay is refused

1. It would appear the Applicant's application for review would not be rendered nugatory if the stay is refused. Whilst clearly, he is likely to continue to suffer financial consequences prior to the review proceeding, and in the event of its success, the license could be reinstated. Kambourakis suggests that a refusal of stay does not prevent the substantive review from being effective.[39]

1. In considering whether to grant a stay, the Tribunal must carefully weigh the competing factors, including the Applicant's prospects of success, the consequences of refusal, the public interest, and the potential risks to aviation safety.
2. In Hanieh and Tax Practitioners Board[40], Senior Member Benk noted that the public interest extends to the broader community that relies on the reputation of the profession.[41] In a similar manner, the Tribunal in Snook and Civil Aviation Safety Authority held that the public interest in maintaining the Applicant's licenses outweighed the remote risk to public safe.[42] In contradistinction, the history of serious and systemic safety breaches together with the lack of appropriate conditions to mitigate ongoing risk weighs heavily against the stay being granted . Whilst the Applicant is likely to suffer financial hardship upon stay refusal, this factor is outweighed by the public interest in maintaining aviation safety, particularly given the serious and ongoing nature of the risks posed by his conduct.

I certify that the preceding sixty-two (62) paragraphs are a true copy of the reasons for the decision herein of Deputy President K McMillan KC.

Date final submissions received: 11 February 2025

Representatives for the Applicant: Peter Carter, Carter Capner Lawyers

Representatives for the Respondent: Tanya Canny, Civil Aviation Safety Authority, Litigation, Investigations and Enforcement

[1] Re Oaklands and Australian Securities and Investments Commission [2011] AATA 199, [11].

[2] Explanatory Memorandum to the Administrative Review Tribunal Bill, [339] cited.

[3] Administrative Review Tribunal Act 2024 (Cth) s 32.

[3] Hopfner and Tax Practitioners Board [2019] AATA 851, [7].

[4] Kambourakis v Tax Practitioners'' Board [2024] AATA 7025.

[5] Civil Aviation Act 1988 (Cth) s 9, 9A.

[13] Greenfield Education Pty Ltd and Australian Skills Quality Authority [2018] AATA 4210.

[14] Re Snook and Civil Aviation Safety Authority [2008] AATA 861; (2008) 109 ALD 122 at [21] cited with approval in Levi v Companies Auditors and Liquidators Disciplinary Board [2013] FCA 719.

[15] Australian Broadcasting Tribunal v Bond ("Bond" case") [1990] HCA 33 At [321].

[16] [1994) 34 ALD 554.

[17] Ekinci and Ors and Civil Aviation Safety Authority [2014] AATA 424.

[18] Quadrio and Civil Aviation Safety Authority [2011] AATA 709 at [69].

[20] Thomas v Tax Practitioners Board [2023] AATA 757.

[22]Kambourakis v Tax Practitioners Board [2024] AATA 7025.

[25] Austin J in Fitzwater and Fitzwater [2019] FamCAFC 251; [2019] 60 Fam LR 212.

[26] Glover and Civil Aviation Safety Authority [2024] AATA 3597,[34]-[37].

[29] Respondent's Submissions paras 9 and 10.

[30] Re Repacholi and Civil Aviation Safety Authority [2002] AATA 196 at [24].

[31] Anderson v Civil Aviation Safety Authority ("Anderson") [2013] FCA 1367.

[33] Civil Aviation Safety Authority v Central Aviation Pty Ltd [2009] FCA 49.

[35] Birdseye and Tax Practitioners Board [2020] AATA 1250; [2020] 82 AAR 241.

[37] Hughes Aircraft Systems International v Airservices Australia (No. 3) [1997] FCA 1537.

[40] Hanieh and Tax Practitioners Board [2024] AATA 3251.

[42] Snook and Civil Aviation Safety Authority [2008] AATA 861.