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FNQ – Max Davey

Dudding the Delegate

Posted by:  Posted date: March 18, 2012 | comment : 1

Some CASA staff had developed ways to distort published technical information and related law into selective disinformation, and to use it  to deceive a colleague into making decisions that do immense damage to individuals and organisations without exposure to competent and critical review.

Until now. Like other events that occurred during the outbreak of morality, competency and professional integrity under Bruce Byron’s leadership, a series of wrongs against an individual were largely reversed and justice was seen to be at least partly done, following the circulation by email of an earlier version of this case study, and further investigations by CASA including one by an external consultant.

On 8 Feb 2004, Cairns pilot Max Davy was conducting conversion training for the purpose of endorsing another pilot on a Cessna Caravan, VH-CYC. Max held a Grade 3 instructor rating and was a CASA approved person to conduct conversion training.

In the course of this training, near Green Island, Max simulated engine failure by retarding the power lever to flight idle. The three purposes of this exercise were to have the pilot under training conduct a simulated glide approach, to demonstrate the advantage of extending the glide by carrying out the forced landing approach with the propeller feathered, and to demonstrate the use of the emergency power lever. This action is in accordance with the purpose and intent of Civil Aviation Order 40.1.0.

Note:      For the unfamiliar, the propeller can be feathered and unfeathered in this aircraft type with the engine running, and is immediately unfeathered simply by operating the propeller condition lever. An appropriate comparison would be that of taking a car out of gear but leaving the engine running while coasting down a hill.

Practice glide approaches are conducted to train pilots flying in typical operations, to respond to a sudden engine failure by selecting a suitable forced landing site and making a simulated forced landing approach. Before applying normal climb power and discontinuing the approach, the training pilot normally allows the approach to be conducted down to a level from which the training pilot can assess whether the aircraft has been adequately aligned so that a successful forced landing would have resulted.

Mr. Davy’s account of the incident to ATSB, presumably conveyed also to CASA, was: Max Davy’s problems were yet to come.

“A flameout occurred approaching the cleared limit of the practice glide approach. At the time the aircraft was operating with the primary power lever set to “flight idle” and the propeller fully feathered. Power was to be restored using the EPL (Emergency power lever)”. When the EPL was advanced out of its detent there was no corresponding increase in torque, and both ITT and Ng were observed to be below normal during the approach. The primary power lever had been retarded to the flight idle position with the intention of restoring power using the EPL lever. However when the emergency power lever was moved out of its detent, no corresponding increase in torque occurred, and the inter-turbine temperature ITT) and Ng were below normal indications and decreasing. Ignition and Start were selected on and a strong fuel smell was noted. A relight did not occur, fuel purging was then initiated followed by a starter assisted air start. Ng indications were such that the second attempt was discontinued, the propeller was reselected to feather and best glide performance established, a Mayday was broadcast with intentions and the aircraft manoeuvred for a beach landing. This was revised to a ditching after observing people at the far end of the beach landing area. After a successful ditching a call was made to the approach controller advising no injuries and assistance in attendance.

Note: Only one change has been made to the above text from Max’s report, for the purpose of removing an ambiguity which is capable of two interpretations, one of them incorrect. The power lever hadalready been retarded in accordance with the manufacturer’s operating advices.

Because of the skill with which the forced landing was carried out, the aircraft was undamaged by the landing and came to rest on the coral without even blowing a tyre;  but was later damaged by salt water as the tide rose.

Nine months later (Sep 17 2004), Max received a “Show Cause Notice” inviting him to show cause why:

  1.  his appointment as a CASA approved person to conduct conversion training should not be revoked and
  2. his Grade 3 instructor rating should not be suspended, cancelled, or varied.

The subsequent decision letter (among other things):

  1. alleged that on December 28, 2003, Max violated restricted area R766, an environmental bird protection zone around Michaelmas Cay; and
  2. stated as the three factors in support of the cancellation decision that Max had demonstrated:

a)  a lack of due care in the planning and conduct of flying training;

b)  an unwillingness to comply with the requirements of Civil Aviation Regulations 1988, in particular CAR 100(2) and CAR 138(1);

c)   an unwillingness to communicate fully and effectively with CASA in the course of his functions and duties;

“And that hence you are not a fit and proper person to hold (the approvals.)”

Following the usual undisputed “facts and circumstances”  regarding aircraft ownership, pilot qualifications etc, the delegate made various allegations and assertions in support of these decisions, the more significant of which are summarised below. (Note that CASA refers to “controlled airspace” when in fact the area is a “bird sanctuary restricted area”, which is not a flight safety issue):

The [show cause] notice alleged as follows:

ESIR 2003 03931 – Violation of Controlled Airspace

On the 28th day of December 2003 at 11.55 (UTC) the company operated aircraft VH-CYX via Green Island and the reefs to the east of Cairns;

CASA received advice from Airservices Australia that VH-CYX was observed on radar inside restricted area R766

Flights below 3,000 feet in the area are prohibited without an ATC clearance. VH-CYX did not have a clearance and the company’s flight with Max Davy in command was in breach of CAR 1988 100(2).

You, Max Davy in a written response to this ESIR denied any penetration of the restricted area despite being cautioned by the air traffic controller at the time, and afterwards being observed as penetrating the area on radar.

The response asserts that you were familiar with restricted zone R766 (Michaelmas Cay) and that you visually maintained clearance in excess of 1 nautical mile from the perimeter of R766.
The response asserts that CASA has not proved by radar, tapes of ATC transmissions, witness statements or other evidence that you penetrated R766.
I am satisfied that the evidence obtained from Airservices Australia shows conclusively that VH-CYX flown by you penetrated R766.

The notice alleges conduct by you concerning an accident near Green Island as follows:

“ESIR 2004 00433 VH-CYC Accident near Green Island

(i)             (undisputed detail)

(ii)           VH-CYC was on a glide decent [sic] when you, Max Davy made a mayday call: “flameout” on your radio. You reported that there were 2 persons on board.

(iii)          VH-CYC was then tracked by radar until it was observed to have ditched in the sea at a point in the northern side of Green Island.

(iv)         At 16.10 VH-CYC was reported in the water floating towards shore with nil injuries to person on board.

(v)           In the company’s written response to this incident you, Max Davy as pilot in command made reference to the emergency power level [sic] (EPL) as the means to restore power following  a practice glide approach. You stated:

[See Max’s account above: “A flameout occurred…..“]

(vi)         Page 7-37 of the Cessna 208 Pilot Operating Handbook contains the following caution concerning the emergency power lever:

CAUTION

The emergency power lever and its associated manual override system is considered to be an emergency system, and should be used in the event of a fuel control unit malfunction. When attempting a normal start, the pilot must ensure that the emergency power lever is in the NORMAL (full aft) position; otherwise an over-temperature condition may result.

(vii)              The Cessna 208 Flight Manual pilot’s checklist in the event of an engine flameout in flight requires the emergency power lever to be in the NORMAL position during a starter assist airstart;

(viii)            Your use of the emergency power lever to restore engine power was contrary to the manufacturer’s instructions in the aircraft’s flight manual and in breach of CAR 1988 138(1)

(ix)               In the company’s written response concerning this incident you, Max Davy stated:

“Ignition and start were selected on and a strong fuel smell was noted. A relight did not occur, fuel purging was then initiated followed by a starter assisted air start.”

(x)                 As the emergency power lever had been operated contrary to the manufacturer’s instructions it is likely that an overfuel resulted with fuel surges to the fuel nozzles.

(xi)               When CASA Flying Operations Inspector Jason Clark wrote to the company’s Chief Executive Officer Arthur Williams on 24 February seeking advice from the company about how the “fuel purging sequence was undertaken he received advice in writing dated 27 February that you Max Davy declined to answer further questions about your actions and  that all further questions about your actions be referred to Mr Laurie Cox and his industrial organisation the Australian Federation of Air Pilots (AFAP)

(vi)               In its response to the ESIR and CASA’s enquiries concerning this accident the company advised that the pilot in command Max Davy was engaged in a “private” training flight.

(vii)              CAR 1988 258(1) states:

258 Flights over water

The pilot in command of the aircraft must not fly over water at a distance from land greater than the distance from which the aircraft could reach land if the engine, or, in the case of a multi-engined aircraft, the critical engine (being the engine the non-operation of which when the other engines are in operation gives the highest minimum speed at which the aircraft can be controlled) were inoperative.

(vi)               On the available evidence I am inclined to the view, that by conducting a training fight with a student pilot who had never flown a Cessna Caravan aircraft before, including a simulated engine failure with the single engine of VH-CYC shut down, with the propeller feathered, at an altitude of approximately 2,000 feet, and using the emergency power lever to restart the aircraft’s engine contrary to the manufacturer’s instructions, and carrying out a flight at a distance from land greater than that which enabled the aircraft to glide and reach land safely you, Max Davy breached CAR 1988 258(1) and conducted a reckless operation of an aircraft contrary to Section 20A of the Civil Aviation Act.

Later in the same document the following additional assertions relating to the engine handling issue were made:

(a)     Despite the disclosures made in [Mr Davy’s voluntary] statements, you have not in these statements, or in the response, addressed the issues that gave rise to CASA’s safety concerns, namely:

(i)       Why did you conduct an emergency simulated engine failure procedure in the particular circumstances of the student pilot Matthew Radzyner  who had not flown in that type of aircraft before, after only a few hours of ground training and

(ii)     In that process, using the emergency power level [sic] to restore power to the aircraft’s engine contrary to the manufacturer’s instructions contained in the aircraft’s flight manual, and in breach of CAR 1988 138(1); and

(iii)    Why was such a procedure undertaken over water and not within gliding distance of a suitable landing area?.

(b)     The response states that “The exercise was conducted entirely within the provisions of the Regulations”, and that “CAR 258(1) only requires that the aircraft be able to glide and ‘reach land.’ I met that requirement. The choice to ditch was made on the basis of that being the most suitable landing at that time.”

(c)     I find that errors were made by you, not in the handling of the ditching, but in the planning of the flight, and in how the simulated engine failure procedure was conducted. The emergency power lever and its associated manual override system is an emergency system under which the Cessna 208’s flight manual was required to be used only in the event of a fuel control unit malfunction. You also made an error of judgement in your choice of conducting this emergency procedure over sea, rather than land, and within gliding distance of an airfield.

GROUNDS FOR REVOCATION OF YOUR INSTRUMENT OF APPOINTMENT AND CANCELLATION OF YOUR INSTRUCTOR RATING GRADE 3

(d)      Pursuant to Section 33 (3) of the Acts Interpretation Act 1901 CASA may in its discretion revoke any instrument of approval to give aeroplane conversion training under CAR 1988 5.21.

(e)     Pursuant to 269(1)(d) of CAR 1988 CASA may cancel a license including a flight instructor (aeroplane) Grade 3 rating issued under CAR 1988 5.14 where the holder is not a fit and proper person to have the responsibilities and exercise and perform the functions and duties of that rating.

(f)     I am satisfied that your conduct as set out above has demonstrated:

  • a lack of due care in the planning and conduct of flying training;
  • an unwillingness to comply with the requirements of Civil Aviation Regulations 1988, in particular CAR 100(2) and CAR 138(1);
  • an unwillingness to communicate fully and effectively with CASA in the course of his functions and duties;

And hence you are not a fit and proper person to hold (the approvals.)

Discussion

  1. At all material times relating to the decision, the delegate was John Flannery, [then] Acting General manager, General Aviation Operations. In CASA’s current policy at that time, this appointment came with the position, regardless of the appointee’s background, specialist technical or legal qualifications, or training.
  2. The CASA component of the above material is drawn from the “decision letter” sent to Max, which was signed by Mr Flannery. It is not known whether Mr Flannery has any background in flight operations, nor is it immediately apparent from his correspondence, which gives the impression that he is making decisions based on advice from another party with some aviation background but with limited skills relevant to the competent assessment of these technical issues.
  3. Decisions made by delegates without an aviation background are necessarily based on direct technical input from field staff, directly or through their area managers. This raises the question of whether CASA has sufficient safeguards in place to ensure that its employment, training and ongoing performance monitoring of key field and management employees are adequate to ensure the integrity, competence, and motivation necessary to achieve CASA’s published goals while observing its commitments to compliance enforcement and to procedural fairness and natural justice.
  4. Facts surrounding the issue dealt with in this study, raise serious doubts in that regard and invite the conclusion that CASA has made grave errors in reaching the conclusions he has drawn on to cancel Max’s approvals. These are dealt with in the summary at the end of this document.
  5. Allegation that the operation was in breach of Regulation 138(1) of CAR 1988

138 Pilot to comply with requirements, etc of aircraft’s flight manual, etc

(1) If a flight manual has been issued for an Australian aircraft, the pilot in command of the aircraft must comply with a requirement, instruction, procedure or limitation concerning the operation of the aircraft that is set out in the manual.

Penalty: 50 penalty units.

(2) If a flight manual has not been issued for an Australian aircraft and, under the relevant airworthiness standards for the aircraft, the information and instructions that would otherwise be contained in an aircraft’s flight manual are to be displayed either wholly on a placard, or partly on a placard and partly in another document, the pilot in command of the aircraft must comply with a requirement, instruction, procedure or limitation concerning the operation of the aircraft that is set out:

(a) on the placard; or

(b) on the placard or in the other document.

(a)                 The decision letter negligently quotes a “Caution” from Page 7-37 of the Cessna 208 Pilot Operating Handbook regarding the use of the emergency power lever. The page references used by CASA are inaccurate and appear to be derived from a later model Cessna 208B Grand Caravan manual. The model has a different fuselage, different flaps, different engine, different weights, and a different type certificate.

(b)                 The correct reference for VH-CYC’s Aircraft Flight Manual is P/N D1307-13,. revision level 32, 7th Sept 2001.

(c)                 The delegate or his advisor/s selectively used only sections of a document to support an agenda, either deliberately or negligently misleading the delegate and deliberately creating a mind-set in the reader of a non-compliant and reckless person.

(d)                 Mr Flannery’s comment: “On the available evidence I am inclined to the view that Max Davy breached CAR 1988 258(1) and conducted a reckless operation of an aircraft contrary to Section 20A of the Civil Aviation Act.….” invites the reader to consider whether he actually reviewed all the available evidence or whether he reviewed only the “evidence” that would support his incorrect assessment of the allegations. Mr Flannery, it’s very hard to find good staff these days, but it may have been worth the extra effort.

(e)                 Are you sure you weren’t pontificating just a little bit, Mr Flannery? Even experienced judges rarely use the expression: “I am inclined to the view,” in part because it suggests a less than total confidence in the conclusion. The last time I heard it was from a senior judge who’d spent several days examining sworn documents, listening to sworn evidence, cross-examination and competent legal argument, and assessing the whole lot from the background of a highly qualified jurist. Even then however, he did not draw on it to support his decision.

(f)                  As any pilot knows, a CAUTION in a manual such as this is simply that – a caution, not a prohibition. CASA had refused to listen to this argument; and worse, CASA fiddled around with the meaning of the word. CASA deliberately made no reference to the next full paragraph at page 7-35 immediately following the CAUTION, which would have absolutely supported the argument that “Caution” does not mean “Prohibited”; and that Max Davy complied with the Pilot Operating Handbook (CAR 138 aircraft flight manual). The omitted paragraph explains how engine response may be more rapid than with the primary power lever, and that additional care is needed.

(g)                Mr Flannery states that the EPL is “considered” to be an emergency system. The purpose of the “caution” is designed to prevent pilots continuing flight operations relying on the EPL, rather than landing as soon as possible and rectifying the FCU

(h)                 The next full paragraph in the POH on the same page (7-35) states: Use of the emergency power lever with the primary power lever out of flight idle is prohibited. That is a very clear instruction – do not use the EPL while the primary power lever is out of the flight idle position and the engine is running. Cessna thus clearly distinguishes between “caution” and “prohibited.”

6      Max was never prosecuted in a court for breaching Regulation 138(1). At least CASA has the wit in this particular case not to waste public money fighting cases based on incompetent investigation.

7       Allegations of a lack of due care in the planning and conduct of flying training

Para 7 (xiv) of the decision letter contains several errors:

……… including a simulated engine failure with the single engine of VH-CYC shut down, with the propeller feathered, at an altitude of approximately 2,000 feet, and using the emergency power lever to restart the aircraft’s engine contrary to the manufacturer’s instructions, and carrying out a flight at a distance from land greater than that which enabled the aircraft to glide and reach land safely you, Max Davy breached CAR 1988 258(1) and conducted a reckless operation of an aircraft contrary to Section 20A of the Civil Aviation Act.”

(a)                 Go to the back of the class, Mr Flannery. It’s incorrect and incompetent to say that the engine was “shut down.” The power was reduced to flight idle and the propeller was feathered, which is a bit like putting your car out of gear and coasting down a hill with the engine still running. You can put it back in gear any time, just as Max Davy could (and did) unfeather the prop. In fact in some twin-engine types with similar engine/propeller combinations it’s reasonably common practice to feather one propeller while taxying even at idle, to reduce thrust and save brake wear, and in some types to avoid excessive heating of plexiglass windows by hot exhaust flow spiralling around the nacelle. The engine continues to operate normally during this process.

(b)                The reason for the engine “roll-back” hasn’t yet been explained by anybody – especially anyone from CASA, although ATSB says turbine blade erosion may have contributed. Seehttp://www.atsb.gov.au/aviation/occurs/occurs_detail.cfm?ID=605

(c)               To state that the emergency power lever was used to restart the engine contrary to the manufacturer’s instructions is incorrect. The EPL was not used to restart the engine, and the statement reflects that the person making the assertion is not technically competent to assess the available information.

(d)                It’s also incompetent and negligent to state that the flight was carried out at a distance from land greater than that which enabled the aircraft to glide and reach land safely. At no time during the flight was the aircraft in a position where it would have been unable to reach land in a glide. Even at 2,000 ft, a Cessna Caravan can glide for four nautical miles, and the distance between Cape Grafton and Green Island is only 7 miles. The option to ditch on the reef was considered preferable to running over a couple of busloads of tourists.

(e)                 But it gets worse Mr Flannery, if you examine only part of the relevant regulatory material. The way it works, is that first, the regulator comes up with a regulation that make something quite clearly illegal such as:

The pilot in command of the aircraft must not fly over water at a distance from land greater than the distance from which the aircraft could reach land if the engine ………… were inoperative.

(f)            Absolutely clear-cut, wouldn’t you think? Might as well read him his rights and throw away the key! But hang on, it might only have seemed so if your sources of technical information failed to make you aware of the other relevant regulatory material. CASA and its predecessors have been doing this sort of thing since World War Two. First, you make something absolutely illegal, then they “hey fellers, it’s OK, we really didn’t want you to stop flying altogether, so you can do it IF………”

CAR 258

(3) It is a defence to a prosecution under subregulation (1) if the flight was:

(a) in accordance with directions issued by CASA

Your advisors, who are licensed pilots, knew about the ENR section of the Aeronautical Information Publication (AIP) which provides exemptions from CAR 258(1) as follows (I’ve underlined the really relevant bits) :

ENR 1.1 -98 27 Nov 03

76. FLIGHTS OVER WATER

76.1 Aircraft engaged in PVT, AWK, or CHTR [private, aerial work or charter] operations, and which are normally prohibited by CAR 258 from over-water flights because of their inability to reach land in the event of engine failure, may fly over water subject  to compliance with the conditions in this section. These conditions are additional to the requirements for flight over land.

76.2  In the case of passenger-carrying CHTR operations, the distance from land areas suitable for an emergency landing must not exceed 25NM.  In the case of helicopters, a fixed platform or a vessel suitable for an emergency landing, or for seaplanes an area of water suitable for an emergency landing and located adjacent to land may be considered acceptable for this requirement.

76.3 There is no limitation for PVT, AWK or freight-only CHTR operations.

76.4 Each occupant of the aircraft must wear a lifejacket during the flight over water unless exempted from doing so under the terms of CAO 20.11

76.5 A meteorological forecast must be obtained.

76.6 VFR flights are required to submit a SARTIME flight notification to ATS or leave a Flight Note with a responsible person.

So where, in your apparently inadequately informed opinion, did Max bust CAR 258(1), Mr Flannery? Even though it wasn’t required, you’ll find the flight conducted by Max was in full compliance with all of the relevant conditions set by ENR 1.1-98, and seems it would negligent and defamatory for your advisors (or yourself) to suggest otherwise.

8.          Max hasn’t been prosecuted in a court for a breach of CAR 258(1). Under the circumstances, charging him would have been a pretty dumb thing to do. Accusing him of something he didn’t do, and using that allegation to support the cancellation of his approvals, appears to be culpable negligence. The only question that remains is whether it was deliberate and malicious, or just negligent and incompetent. No other possible explanation is apparently available.

9.          Irrelevant and incompetent allegations

(a)                 Mr Flannery’s letter made other unsupported and apparently irrelevant allegations which seemed to constitute an attempt to support his portrayal of Max as not being a “fit and proper person” and guilty of “reckless operation of an aircraft.”

(b)                The allegations include: The particular circumstances of the student pilot Matthew Radzyner who had not flown in that type of aircraft before, after only a few hours of ground training;

(c)                 Hey Mr F, are there two different Matthew Radzyners? Did your expert advisor/s perchance convey a wrong impression to you? The Radzyner we know had a commercial pilot license, and is a qualified flying instructor and a former Cape York Air pilot who had already undergone “co-pilot” familiarisation  in the same aircraft – VH-CYC –  when previously employed. His relevant qualifications at or about the time of the event were:

  • BA (Hons) Applied Mathematics, University of Sydney
  • Commercial Pilot’s Licences (Australian and OECS)
  • Command Multi-engine Instrument Rating
  • Class 1 medical
  • Frozen Australian Airline Transport Pilot License .
  • Instructor Rating Grade III (Australian).
  • Night VFR Rating
  • SAR Training completed.
  • Flight crew dangerous goods course valid.
  • Cockpit resource management course completed.
  • Endorsements on Aero Commander 500 (50hrs), Britten-Norman Islander (800hrs), Beech 55/58 Baron, Partenavia P68(85hrs), Piper PA34 Seneca, and Beech 76 Duchess (27hrs)

EXPERIENCE

  • 2100 hrs Total flight time
  • 900 hrs multi-engine command
  • 1900 hrs command (total).
  • 400 hrs planned IFR (multi-engine command)
  • 300 hrs instructing
  • 78 hrs instrument flight
  • 68 hrs night flying
  • Additionally, three years charter and RPT command experience including international, VIP and remote operations and four tropical wet seasons. Regions flown included Australia (remote and metropolitan), Papua New Guinea, and the Eastern Caribbean.

(d)                 Absolutely nothing in the training syllabus suggests that the procedure is inappropriate at that particular stage of a conversion training program. A simulated forced landing is an event that is often repeated at various stages of a pilot’s accrual of experience; and should come as no surprise; nor would it present any difficulty for any competent licensed pilot.

(e)                 It is understood that neither of the two CASA officials principally involved in these events, FOI Jason Clark and Townsville Team Leader Flying Operations Leon Kippin, is endorsed on the Cessna Caravan with its unique PWC PT6 engine. It is unique in that instead of the normal two exhaust ducts, it has a single duct with its attendant back pressure/gas flow characteristics, a design feature that may be a factor in the unexplained high incidence of compressor rollback. Research indicates that this undocumented feature, compressor rollback, is most likely to occur at low Ng settings, say 65% or less, as in a Honduras landing approach incident, as well as a Fedex event, both of which occurred soon after Max’s incident.)

(f)                  There’s also an undertone in the documents that inaccurately suggests it’s irresponsible to carry out practice glide approaches anywhere but over terrain where a landing could be made if necessary. That’s such utter rot, and so irrelevant to intelligent risk management in the GA training environment, (or to supporting regulation) that it really doesn’t deserve a response. However you should be aware that single-engine pilots in all walks of GA from crop spraying to power line patrols to tourism island-hopping to long distance charter, wisely spend quite a lot of their time contemplating what they’d do if their engine quit. So most of them explore the possibility in intelligent ways, by simulating engine failures and glide approaches when they can sensibly do so, usually without passengers.

Do we really want to make intelligent risk management practices an offence too?

(g)                The language of the letter which (apparently deliberately) portrayed this pilot as a student with low experience appears to have been reckless and irresponsible, and aimed at deceitfully promoting the view that Max was reckless and irresponsible because of the alleged inexperience of this pilot.

20A Reckless operation of aircraft

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

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

9.                   Max hadn’t been prosecuted in a court for reckless operation of an aircraft in breach of Section 20A of the Civil Aviation Act, and it’s not hard to see why. Somebody at CASA must have been bright enough to see that any such action would have been tossed out of any competent court. But why bother anyway, when you can belt out a few allegations, dish them up to someone who doesn’t  know anything about aviation, and achieve your goal of getting him to make an uninformed decision that damages someone’s career and reputation? And best of all, for some reason it isn’t a reviewable decision that can be taken to the AAT, so you save a bucketful on lawyers.

10.        Allegations of Max’s “unwillingness to comply with CAR 100(2)

100; Compliance with air traffic control clearances and air traffic control instructions

(2) The pilot in command of an aircraft must not allow the aircraft to:

(a) enter, operate in, or leave a control area;

(b) operate outside a control area as a result of a diversion out of that control area in accordance with air traffic control instructions; or

(c) enter, operate in, or leave a control zone or operate at a controlled aerodrome; if the movement or operation is not in accordance with an air traffic control clearance in respect of the aircraft.

(2A) Subregulation (2) does not apply if the movement or operation:

(a) is authorised by:

(i) air traffic control; or

(ii) a notification in Aeronautical Information Publications or

(iii) NOTAMS; or

(b) is made in an emergency in accordance with subregulation (3).

(3) If an emergency arises that, in the interests of safety, necessitates a deviation from the requirements of an air traffic control clearance or Air Traffic Control instructions, the pilot in command may make such deviation as is necessary but shall forthwith inform air traffic control of the deviation.

(a)                 Blimey, John F, your “decision letter” doesn’t even explain what Max’s supposed to have done that supports the allegation that he was “unwilling to ‘comply with CAR 100(2).” But it certainly looks like you’ve been dudded again.

First, the alleged penetration wrongly refers to “Controlled Airspace” and therefore appears to be a deceptive and deliberate embellishment. R766 is neither within a control area, nor is it within a control zone. You really must be having trouble getting competent advisors, if they claim that Max’s alleged violation of the restricted area (had it occurred,) would have constituted a breach of CAR 100(2). Any advice to the contrary must be incompetent advice.

(b)                But it gets worse Mr Flannery. Assuming you’re referring to the alleged infringement of the restricted area R766, you might want to note that:

(i)                   These allegations were never adequately or publicly investigated.

(ii)                 Max’s response to the allegations, which asserted that he was familiar with R766 and that he visually maintained clearance in excess if 1 nautical mile from the perimeter of R766, was rejected without any comment in support of the rejection.

(iii)                It is understood that Airservices Australia provided CASA with a printout of radar-derived data relating to the alleged incident. This was not made available to Max for examination, nor were the qualifications of the official who examined them defined or challenged. Max was therefore never presented with an opportunity to sight or respond to the “evidence” on which the allegation is based.

(iv)               The alleged “penetration” was a tangential approach towards the arc of a circle of one nautical mile radius, incorrectly depicted (Max states) on the graphical overlay on the ATC radar. That equipment wasn’t designed to protect seagulls doing circuits in the lowest 10 metres of the atmosphere, it isn’t calibrated to the degree that would be needed to provide the information which is the purported basis of the allegations, and the scale on the air traffic control radar screen isn’t anything like sufficiently accurate to provide acceptable evidence in a court of law. Max’s response to the ESIR appears to have satisfied investigators who ultimately reviewed the case.

(v)                 The monitoring of aircraft movements outside controlled airspace is not a function of air traffic controllers, and Airservices Australia provides no specific training for it in terms of standards, tolerances, and procedures.

(i)                   It’s also a matter of record that over-zealous CASA officials have in the past sought to launch immediate punitive action against pilots alleged by ESIRs to have violated controlled airspace, but have been restrained from doing so until ATC radar and voice tapes have been examined. These examinations confirmed that the ESIR was erroneous and no further action was taken.

(ii)                 The allegation is thus both technically and legally inaccurate, and therefore the result of an incompetent assessment of the available evidence.

10.    Max wasn’t prosecuted in a court for a breach of CAR 100(2). That lonely flash of realism shines out from a wilderness of blunders.

11.    Allegations of “an unwillingness to communicate fully and effectively with CASA in the course of your functions and duties.”

 (a)                 Absolutely no regulatory requirements exist in relation to communications between individuals and the Civil Aviation Safety Authority, especially when CASA has no other purpose than to gather evidence to support punitive regulatory action.

(b)                The Australian Transportation Safety Board is the body with responsibility for the investigation of air safety accidents or incidents, the reporting of which is the regulated responsibility of individuals and organisations who are aware of events and are in a position to do so. Notably the ATSB and other air safety investigation bodies conduct their affairs around the concept of “no-blame reporting” in order to protect the air safety reporting and investigation process in such a way that air safety can benefit from lessons learned.

(c)                 In stark contrast, the involvement of CASA in post-accident/incident enquiries has been shown to be one of searching assiduously for any breach of the Act or Regulations, with a view to possible criminal prosecution or punitive administrative action. In the events dealt with in this case study, and in other previous matters relating to Cape York Air, CASA has been particularly aggressive in seeking evidence to support various punitive actions. It has also demonstrated a high degree of determination to “manage” information in order to portray individuals and the organisation as non-compliant, irresponsible and reckless. Cape York Air and individuals associated with it would therefore have been extremely unwise to communicate unnecessarily with CASA employees whom they have come to distrust, and whose motivations and integrity they no longer have any reason to respect.

(d)                For a considerable time, lawyers have been advising pilots not to discuss air safety incidents or accidents with enforcement officials. There is absolutely no reason why pilots should not adopt that advice, there is no justification for penalising pilots who follow it, and CASA has no authority to attach a penalty of any kind to that policy. In fact, I understand it is the same advice given to pilots by the Australian Federation of Air Pilots, of which almost all FOIs including (I understand) Mr Kippin, are paid-up members

Summary:

  1. Numerous grave errors appeared to have been made by Mr Flannery as the delegate, and by CASA staff who have been his sources of technical aeronautical input. If Mr Flannery was duly qualified to make the decisions he has made, both he and his employer were responsible for the material errors which damaged the career, reputation, and financial circumstances of Max Davy.
  2. The “decision letter” contains several allegations of serious breaches of the Civil Aviation Act and Regulations. If the regulatory authority really believed such breaches have occurred it clearly had a duty to prosecute the alleged offender. The fact that no such prosecutions were launched, clearly indicates the lack of legal credibility that CASA ascribed to the allegations, and the poor quality of its sources of information.
  3. In the recent past, especially following Minister John Anderson’s initiatives to restore a measure of procedural fairness and natural justice to CASA enforcement processes, CASA had increasingly adopted a practice that is designed to circumvent those measures and remove individuals from the industry. A favourite tactic had become the practice of withdrawing “approvals,” which CASA claims isn’t subject to automatic stay, or to review by the Administrative Appeals Tribunal.
  4. Another tactic is simply not to renew certificates or approvals, and then to claim that there’s no reviewable decision because CASA didn’t actually do anything. This practice has resulted in the termination of air operator certificates, and of individual pilot approvals. Sorry Ministers, they’ve dudded you too!
  5. Any competent assessment of the allegations against Max Davy thus invites the interpretation that Mr Flannery’s decision represented a gross miscarriage of justice, unsupported by credible evidence, and attributable to incompetently negligent or maliciously selective input from officers at field and/or at district level.
  6. By its actions as we’ve discussed, CASA either deliberately and maliciously, or negligently and incompetently, made and implemented decisions based on:

(i)                   deliberately inaccurate statements; and/or

(ii)                 inaccurate and therefore incompetent analysis of technical material; and/or

(iii)                selective and incomplete applications of parts of the Act and Regulations; and/or

(iv)               the subjective opinions of the delegate or other employees based on one or all of the above.

CASA should therefore have been obliged to:

(v)                 immediately restore the approvals which it had illegally removed; and

(vi)               compensate Max for loss of income and reputation;

(vii)              review its processes for the appointment, training and tasking of delegates, ensuring that they have adequate technical and regulatory backgrounds and/or reliable and correctly motivated supporting staff, to help them make competent decisions in their areas of responsibility;

(viii)            establish a process of review under which any decision with far-reaching impact on the business or reputation of individuals or certificate holders will not be implemented without that review by responsible individuals;

(ix)               submit to an external investigation of the activities of officials involved, and the extent to which that involvement constituted negligence (including negligent misstatement), breach of confidence, injurious falsehood, or misfeasance in public office. The question of criminal intent or conduct should also be investigated by an appropriate authority – but for the sake of credibility and probity, certainly not by a consultant engaged by CASA’s Office of Legal Counsel. Among the officials whose activities in this context should be scrutinised are:

  • John Flannery, at that time Acting General Manager, General Aviation Operations;
  • Leon Kippin, Team Leader Flying Operations, Townsville;
  • Jason Clark, flying operations inspector.
  • Alan Cooke, Area Manager, North Qld Office.
  • Any other CASA employees, including officials of its Office of Legal Counsel, who have been involved in, or endorsed, the deficient conduct identified in this case study.

Sequel

Following publication of an only slightly different earlier version of the above updated analysis, the writer was contacted by a senior CASA official seeking assurance that it was factual. I was later told that “This is the third investigation we’ve conducted.” and assured that it in the light of the new information it raised it would be a very thorough investigation.

Subsequently an external investigator, Canberra-based James Venn and Associates, was commissioned to investigate the issue further. The findings and recommendations of the Venn investigation have never been disclosed.

However following the completion of the Venn invesstigation Max Davy received an undertaking from CASA’s [then] Deputy CEO, Bruce Gemmell, saying that he had initiated two independent reviews of the facts and circumstances surrounding the original decision to take administrative action against Max in respect of:

  • not renewing your CASA approved testing officer appointment; and
  • cancellation of your flight instructor rating.

“Both reviews have concluded that the CASA decision maker may not have had all the facts before him at the time of making the decision.

In the circumstances it would seem appropriate to restore your ATO delegation and instructor ratings upon successful completion of a flight test. It is CASA’s intention that this occur should you so wish to avail in yourself of the flight test.

CASA subsequently met all the costs of recency training, flight testing, and issuance of all the missing approvals and ratings. Loss of income was not compensated for.

This acknowledgement of errors made in decision-making, and the preparedness to admit mistakes and provide at least partial recompense at the cost of the authority, was widely hailed as a possible change of direction. However as far as we know, (and with the exclusion of any agreements under confidentiality clauses) it has yet to be repeated. Two CASA officials whose influence was partly responsible for the review, have since left the organisation of their own free will, believing they could not be effective in the current working environment. The honeymoon is over and we’re receiving daily complaints of unconscionable conduct on the part of individual officials and groups.

An apology? Well, maybe next time.

Acknowledgement:

Invaluable input from Mr Peter Rundle, former CASA District Flying Operations Manager in Townsville, especially in analysing the procedural, regulatory interpretation and legal aspects of the issues discussed here, is gratefully acknowledged. Peter’s deep understanding of general aviation and his objective analysis of complex compliance issues made him a well-respected regulatory employee of the kind who have been diminishing in number since the Australian government ceased appointing competent senior executives to the regulatory authority.

 

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About The Author

 Paul Phelan flew for over 50 years in private, charter, corporate and regional aviation, worked in senior management roles with a major regional airline, and retains his license. In parallel he has been writing for Australian and international aviation journals for well over 20 years on all aspects of aviation including aircraft evaluation, flying, industry affairs, infrastructure, manufacture, regulatory affairs, safety, technologies and training.
Number of Entries : 437

Related postsRichard Rudd

  • I’ll chuck in my 2 bobs worth… Folk might like to pay some serious attention to the CAC Act 1997. Commonwealth Authorities and Companies Act.
    Interesting reading.Check out Section 23 civil penalties, and Section 26 criminal provisions re the behaviour of employees of a Commonwealth Authority, CASA being one and certain employees fit the bill.

    And on another note very pertinent to the above article CASA’s own Enforcement Manual sec 8.3 says in effect, penaltites are not to be levied unless there is the same standard of evidence first, as in a criminal case,ie beyond reasonable doubt.
    No CDPP cases went forward here but “penalties” were applied regardless.
    Its the same MO as used on J Quadrio.
    CASA’s fundamentalist approach as punitive/reactive for reg punishment regime, just doesnt work and is probably illegal as well..!!

    Mr Phelan also makes mention regarding talking to CASA persons, noting it can be very detrimental to their/CASAs prospective “victim”. (Do so at yr peril.)
    Mr Phelan can expect a threat letter from the Australian Government Solicitor shortly about that.
    Its the CASA way.