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The noble Art - Embuggerance.
(04-08-2017, 08:04 PM)P7_TOM Wrote: Houseboat stable:19.30.

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

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

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

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

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

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

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

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

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

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

Toot toot.
Embuggerance comes cheap under strict liability - Dodgy

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

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

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

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

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

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

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

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

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

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

The imposition of strict liability can be both unfair and unjust. There are many problems with the way that strict liability is currently imposed. Problems with strict liability include:
  • It may not succeed in raising standards as people often do not realise that they are party to any wrongdoing.
  • Decisions are often unjust and unfair.
  • The courts often face difficulty identifying strict liability offences and are inconsistent with their attitude and decisions.
  • There is often a marked lack of clarity in judgements. Decisions with regard to strict liability can sometimes lead to outcomes that are the opposite of what was intended by the law.
  • A criminal conviction and the possibilities of massive penalties are imposed on the defendant for an offence that he/she may not have foreseen/intended or been able to prevent.
The Senate Committee Report states in Chapter 7, Application of absolute and strict liability offences in Commonwealth legislation:
  • the process of deciding whether to introduce strict liability for an offence should recognise that this may have adverse effects upon those affected. The legitimate rights of these people should be paramount and take precedence over administrative convenience and perceived cost savings in program administration;
  • agencies should acknowledge that there may be areas where existing strict liability offences, or the way they are administered, may be unfair. In these cases, agencies should review the offences under the general coordination of the Attorney-General’s Department; 
  • strict liability should not be implemented for legislative or administrative schemes that are so complex and detailed that breaches are virtually guaranteed regardless of the skill, care and diligence of those affected. Any such scheme would be deficient from the viewpoint of sound public administration; 
  • strict liability offences should be designed to avoid the likelihood that those affected, particularly by the issue of an infringement notice, will pay the lower penalty simply because it is easy and convenient to do so, rather than spend the money and time to pursue what might be a legitimate defence. Any agency that encouraged this tendency would be acting improperly; 
  • strict liability should depend as far as possible on the actions or lack of action of those who are actually liable for an offence, rather than be imposed on parties who must, by necessity, rely on information from third parties in Australia or overseas. Offences that do not apply this principle have the potential to operate unfairly; 
  • strict liability has the potential to adversely affect small and medium enterprises. Steps should be taken to ameliorate any such consequences arising from the different compliance and management resources of smaller entities; 
  • any potential adverse effects of strict liability on the costs of those affected should be minimised to the extent that this is possible. In particular, parties who are subject to strict liability should not have their costs increased as a consequence of an agency reducing its costs; 
  • external merit review by the Administrative Appeals Tribunal, or other independent tribunal, of relevant decisions made by agencies is a core safeguard of any legislative or administrative scheme. Every agency that administers strict liability offences should review those provisions to ensure that this right is provided; new and existing strict liability schemes should have adequate resources to ensure that they are implemented to maximise safeguards. A lack of proper resources may result in the inadequate operation of those safeguards; 
  • strict liability should not be accompanied by an excessive or unreasonable increase in agency powers of control, search, monitoring and questioning. Any such increase in powers may indicate that the legislative and administrative scheme has structural flaws; 
  • there should be a reasonable time limit within which strict liability proceedings can be initiated. It would be unfair to those affected if they were to be charged perhaps years after an alleged breach; 
  • as a general rule, strict liability should be provided by primary legislation, with regulations used only for genuine administrative detail. It would be a breach of parliamentary propriety and personal rights for regulations to change the basic framework or important aspects of a legislative scheme; and 
  • the use of strict liability in relation to the collection of personal information about members of the public from third parties has the potential to intrude into the legitimate rights of the people whose details are being collected. In such cases the entire process should be transparent, with all affected members of the public being notified of their rights and remedies under the Privacy Act.
Adherence to these principles would see many aviation strict liability provisions being removed as they certainly do not adhere to these principles.
Reference link for the SSC Scrutiny of Bills 2002 report: Chapter 7 - Application of absolute and strict liability offences in Commonwealth legislation

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

MTF...P2  Tongue
A case of embuggerance or professional negligence?

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

Quote:Wotherspoon and [Image: displeft.png] Civil Aviation Safety Authority [Image: dispright.png] [2017] AATA 793 (30 May 2017)Last Updated: 2 June 2017

Wotherspoon and [Image: displeft.png][b] Civil Aviation Safety Authority [Image: dispright.png] [2017] AATA 793 (30 May 2017)[/b]
File Number: 2016/2262
Re: John Wotherspoon
And [Image: displeft.png][b] Civil Aviation Safety Authority [Image: dispright.png][/b]

Tribunal: Egon Fice, Senior Member

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

[Image: displeft.png][b] CIVIL AVIATION SAFETY AUTHORITY [Image: dispright.png]

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

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

Secondary Materials
JamCo Aviation Operations Manual


Egon Fice, Senior Member

30 May 2017

1.Mr John Wotherspoon holds an Air Transport Pilot Licence (ATPL) issued on 14 May 2004 and has held a Commercial Pilot Licence (CPL) since 2 January 1986. Mr Wotherspoon also holds a Flight Instructor Rating with Grade 1 and Grade 2 helicopter training endorsements. He was the Chief pilot (CP) and Chief Flying Instructor (CFI) of JamCo Aviation Pty Ltd (JamCo) between 1 July 2013 and 13 March 2015.
2. On 13 April 2015 The Experiences Group Pty Ltd (The Experiences Group) applied to CASA seeking approval of its proposed appointment of Mr Wotherspoon to the position of Head of Operations (HOO) of The Experiences Group.
3.Part 141 of the Civil Aviation Safety Regulations 1998 (CASR) deals with recreational, private and commercial pilot flight training. If a person wishes to conduct flight training they are required to hold a Part 141 certificate authorising that training. Regulation 141.050 providesSad1) A person commits an offence if: (a) the person conducts Part 141 flight training; and
(b) the person does not meet the requirements mentioned in subregulation (2).

Penalty: 50 penalty units.

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

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


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

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

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

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

6.Subject to Reg 11.055, CASA must approve a significant change for a Part 141 operator if it is satisfied that the requirements in Reg 141.060(1) will continue to be met (Reg 141.090).
7.In a letter dated 7 September 2015 CASA informed The Experiences Group that it was considering refusing the approval of Mr Wotherspoon to the position of HOO. It invited The Experiences Group to show cause why CASA should not refuse its appointment of Mr Wotherspoon as HOO on the basis of its concerns expressed in that letter. On 17 September 2015 Mr Guy Maine, Chief Pilot for The Experiences Group, provided a response to the show cause letter. In an email dated 23 October 2015, Mr Wotherspoon attached a request for a show cause conference.
8.In a letter dated 4 November 2015 CASA informed Mr Maine that it considered certain contraventions by Mr Wotherspoon of a number of legislative requirements to be serious and significant to the extent that CASA could not have any confidence in Mr Wotherspoon’s ability to discharge the duties of the HOO. It refused to approve the significant change under Reg 141.090 of the CASR.
9.In addition to the above, in a letter dated 21 October 2015 CASA informed Mr Wotherspoon that it was considering recommending to a delegate of CASA that his ATPL (Helicopter) Licence; Commercial Pilot (Helicopter) Licence; Flight Instructor Rating – Grade 1 helicopter or Flight Instructor Rating – Grade 2 helicopter; be varied, suspended or cancelled on the basis of the facts and circumstances set out in that letter. CASA was concerned with Mr Wotherspoon’s conduct while holding the position of Chief Pilot and Chief Flying Instructor for JamCo. CASA alleged that Mr Wotherspoon had operated a R22 helicopter in excess of its Maximum Take-off Weight (MTOW) and outside the centre of gravity (C of G) limits; and that he failed to record the fuel remaining at the end of flights. The letter invited Mr Wotherspoon to show cause why those actions should not be taken.
10.Maitland Lawyers, acting for Mr Wotherspoon, responded to the show cause notice in a letter dated 16 December 2015. Mr Wotherspoon also attended a show cause conference on 8 February 2016 and was given the opportunity to expand upon his written response. After considering Mr Wotherspoon’s response to the show cause notice and the discussions held during the show cause conference, CASA determined that his conduct did not warrant any action being taken against his ATPL or CPL, however it was serious enough to warrant suspension of his Flight Instructor Rating.
11.On 28 April 2016 Mr Wotherspoon lodged an application with the Tribunal seeking review of the decision to suspend his Flight Instructor Rating and to reject the application of The Experiences Group for a change in its key personnel by permitting Mr Wotherspoon to take up the position of HOO.
12.CASA’s decision to refuse the appointment of Mr Wotherspoon as HOO of The Experiences Group and its decision to suspend his Flight Instructor Rating are based on the same circumstances. CASA claimed that on ten occasions Mr Wotherspoon operated the Robinson R22 helicopter outside of its forward C of G limits while providing flying lessons to students in January, February and March 2015. According to CASA, those contraventions breached Civil Aviation Regulations 1988 (CAR) 138(1) and 215(9). CAR 138 deals with the requirements of a pilot to comply with the aircraft’s flight manual. It providesSad1) If a flight manual has been issued for an Australian aircraft, the pilot in command of the aircraft must comply with a requirement, instruction, procedure or limitation concerning the operation of the aircraft that is set out in the manual.

Penalty: 50 penalty units.

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

(9) Each member of the operations personnel of an operator shall comply with all instructions contained in the operations manual in so far as they relate to his or her duties or activities.
Penalty: 25 penalty units.
14.Furthermore, CASA claimed that Mr Wotherspoon committed multiple breaches of
CAR 220(2) by failing to maintain a record of the fuel remaining in the tanks of the aircraft at the end of each scheduled flight. CAR 220 relevantly providesSad2) An operator shall maintain a record of the fuel remaining in the tanks at the end of each scheduled flight and shall review continuously the adequacy of the instructions in respect of the fuel to be carried in the light of that record, and shall make any such record available to CASA, upon request.

Penalty: 25 penalty units.

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

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


17.I had in evidence a copy of the JamCo Aviation Operations Manual. Sub-section A3.11 deals with fuel usage and flight records. It providesSad1) The Chief Pilot shall calculate the average fuel consumption rates for individual aircraft types as achieved in actual company operations. These consumption rates are to be used as a basis for the consumption rates to be used by company Pilots to comply with the company fuel policy. Refer to specific aircraft data in Part B.
(2) All Flight Record sheets are to be forwarded to the Chief Pilot on the completion of a flight or, if necessary, on a weekly or monthly basis as requested by the Chief Pilot. Each section of the Flight Record sheet is to be completed in full and filed under the particular aircraft type. The Chief Pilot is to maintain and publish the average consumption rates calculated on a monthly basis for individual aircraft. These records are to be maintained for the preceding 12 months.

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

A company Pilot is to ensure that they operate Company Aircraft in accordance with the provisions of all associated CAR’s, CASR’s, CAO’s, AIP, the Aircraft’s Flight Manual and this Operations Manual.
20.Before flight, the pilot in command must ensure a number of things including (A1.4.10.2)Sad2) The weight of the aircraft is within the performance and structural limits, the aircraft’s centre of gravity is within limits for take-off and zero fuel weight and the load carried by the aircraft is so distributed and secured as to be safe for flight;...

21.The pilot in command has a number of post flight responsibilities including (A1.4.10.4)Sad3) calculating and enter all fuel usage and noting any oil quantities for each flight and entered into Flight Book J-009;...

22.Prior to the commencement of any flight or route segment, the pilot in command must ensure, amongst other things (A1.9), thatSad1) adequate fuel and oil in accordance with the company fuel policy as described in subsection A1.22 of this Operations Manual, is carried;
(2) ...
(3) the gross weight does not exceed the limitations;
(4) the C of G is located within limits;

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

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

25.Finally, in this section, I should refer to aircraft refuelling procedures found in sub-section A6.3. Relevant paragraph providesSad3) The crew member supervising refuelling is to note the fuel meter readings before and after fuel delivery and confirm that the correct amount is entered on the fuel record.
26.The maximum all up weight of the R22 helicopter is 623 kg. The empty weight (that is without fuel, pilots or baggage) of the R22 is 399.2 kg. Rounding that figure off at 400 kg, the maximum weight of fuel, pilots or pilot plus one passenger and baggage cannot exceed 223 kg. It should be immediately apparent that this aircraft is critically weight limited. That is before one examines where the C of G will be at any particular weight. When the aircraft is used for training purposes, the pilot in command must establish an accurate weight for the instructor and trainee and the quantity of fuel on board. Each litre of fuel weighs 0.72 kg. Again, it is glaringly obvious that, depending upon the weight of the two persons on board, the amount of fuel which can be carried may be significantly limited. The accepted cruise fuel consumption of this aircraft is 35 L per hour, which appears to take into account the extra fuel used in take-off and climb to altitude. Therefore, the fixed reserve, which must be 20 minutes of ordinary flight time, will account for 11.6 kg which must be carried before any additional flight fuel is put on. Allowing for the fixed reserve limits, the maximum weight of the two persons and fuel is limited to
211.4 kg. Obviously, if the two persons on board weigh around 100 kg each, the aircraft is not going to go very far.
27. It is these serious limitations which caused CASA considerable concern when its officers carefully examined the flight operations conducted by Mr Wotherspoon at the time he was Chief Pilot for JamCo. Unsurprisingly, CASA raised serious concerns about the recording of fuel taken on board the R22 for each flight and the weight of the instructor and trainee.


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

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

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

3 February 2015 with Andrew Pitt

4 February 2015 with Andrew Pitt

5 February 2015 with Andrew Pitt

2 March 2015 with Andrew Pitt

33.Mr Wotherspoon said:

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


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

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

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

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


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


50.The HOO of a Part 141 operator is one of its key personnel. Without that person, the Part 141 operator commits an offence if it carries out pilot flight training (Reg 141.110). The responsibilities of the HOO are extensive and are set out in Reg 141.130 of the CASR. Amongst those numerous responsibilities are the followingSad1) The head of operations of a Part 141 operator must safely manage the operator’s authorised Part 141 flight training.
(2) Without limiting the subregulation (1), the responsibilities of the head of operations include the following:

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


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

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

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

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

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

MTF...P2 Tongue
Bizarre? Certainly – however.

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

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

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

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

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

Led to this:-

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

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

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

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

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

Toot – ever so slightly bemused – toot. + MTF.
“K”- [after] no corrective has been taken in the first event. Why wait for the tenth event?

Naughty; bad “K”. You know full well why not. If they went after him for one ‘breach’ it would have been tossed out. “Well M’lud, it had been a busy day and I mistook 48 litres for 43 litres; it was a simple clerical error; a 4 Kg error I will take care not to make again”. But with eight or ten such errors a trend can be shown and a conviction assured.– Bugger the safety risk (there ain’t one); bugger counselling and guidance; sod warnings given – allow the ‘safe’ risk to continue then go in hard. The only safety question then is that of ‘safe conviction’.

You are forgiven as I can see where this is heading. My bet is safe; can’t wait to see the tote board odds. A dollar on runner #3 for me please.

Two more here barkeep – I’ve just backed an ante post winner.
Embuggerance Noose v Safety loop.

There will be many who think the latest foray by CASA into the AAT arena was ‘something-nothing’; there will be others who think the rules were broken by an individual who was rightfully punished for doing so; then there is the BRB who simply ask the questions – what was the safety outcome? Who benefited from the cost of the exercise? Was the safety loop closed? I'll try to keep it short:-

It could be argued ‘black letter’ law was broken; and, indeed it was – several times, according to the evidence provided. CASA patiently gathered evidence to support a ‘safety case’ then rather than prosecute the case, decided not to take it any further but waited then knocked back an application for an appointment, based against untested ‘facts and circumstances’ at a later date.

Do you see any benefit, to industry safety, from this course of action? Any at all.

As far as we can tell, when the accused was CP he was ‘slack’ with the paperwork; to wit, the Fuel on Board (FoB) at start should be recorded; the flight time should be recorded and the FoB at shutdown should be recorded. This is not only a world wide practice, but an important operational necessity. Much depends on the accuracy of these figures, operationally and legally. Payload and performance data is based against ‘weight’, there have been several instances quite recently where heavy jet transport have had ‘incidents’ simply because the wrong data was used for calculation. So, is recording the FoB status critical to safety? Yes, is the short answer.

One of the allegations made centres on the ‘weight and balance’ calculations – ‘the trim’. Aircraft have what is known as a centre of gravity (CoG) envelope. It has been proven, many times, that recklessly operating outside of the envelope limitations is dangerous; often fatally so. It’s a pretty fair bet that most professionals have experienced operating with a CoG on the raggedy edges and vowed never to let it happen again. This is particularly important when the CoG is not returning to within the ‘envelope’ as fuel is burned off; in some situations, as the fuel weight diminishes, the CoG can move further away from a critical limit, which is seriously dangerous stuff.

If one forgets about ‘law’ for a moment and considers the operational risk; the case for beating the importance of these calculations into the wooden heads of junior pilots becomes clear; the reasons for refusing to operate outside of theses tolerance ever clearer. It is truly essential. When there has been an incident or accident, the first things determined are the fuel status and CoG location. This can be calculated from recorded figures. When the time comes for sheeting home ‘blame’ (read liability) the fact that the aircraft was legally loaded and trimmed becomes pivotal.

Right, banged on about that enough, lets get down to brass tacks. The big question the BRB want answered is what the hell was CASA playing at?

Here we have an almost classic case of ‘normalised deviance’. Easy to understand; and not, standing alone, terribly dangerous – operationally. The R 22 range of CoG movement with fuel burn off is limited to a very narrow band; so narrow as not to be worthy of serious consideration – as a 'safety' (not legal) matter. The adding and subtracting of 10 or 20 litres of fuel insignificant to operational safety range – for that aircraft. For an experienced man, operating in the bush on say mustering duties  the notion of doing a CoG calculation for every flight would never enter his head; quite right too. But in a flight training operation, where the foundations of future operating practice are laid, not to do so would be a serious matter. Yes, it’s bloody tedious; weighing stuff, calculating the fuel burn, working out the payload, take off weight, landing weight, checking the graphs etc. But it is, at flight school level an essential element. CASA happily testify that they sat back and allowed several counts of a clearly defined, normalised deviance to occur – and did nothing. How many students now have a cavalier attitude toward these matters, because it was allowed to run on? More to the point; if CASA became aware of the practice, then why was the accused not taken aside, spoken to then monitored to make sure the message had been 'properly' delivered?.

Why then, if the practices prosecuted are so lethal and dangerous were they allowed to be continued until a case could be built. The reasons are obvious; there was a case for a serious chat and blood curdling threats to be made; but without a ‘history’ to support the case, CASA had nothing to work with. Dangerous (CASA says) practice allowed to continue, rather than intervention and education. BRB rules that CASA were much more likely to be the root cause an accident than the accused; they knew and failed to act in a proactive manner. Guilty, so say we all. Wotherspoon certainly needed his arse kicked, that’s why CASA have the big boots. Had they done so and the practice continued, then I would say prosecute and well done. But to lay in wait, building a ‘case’ over a period of time, while ignoring the ‘real’ safety issues smacks not only  of vendetta, but dereliction of duty.

Do we have any benefit to industry from this very, very expensive exercise?

Would industry have been better served by quick, immediate action followed by a briefing in the CASA magazine, warning, yet again of the perils of overweight out of CG operations. Perhaps not, but it would have achieved more for ‘safety’ than this fatuous affair in the AAT.

Has the ‘safety loop’ been closed on this issue, through CASA actions?

No, it has not. CASA have failed, yet again, to get the message through to the general population. Until it is understood why these calculations are important; there is no real deterrent or benefit provided.

What, in seven hells is Carmody going to do about it all?

Ayup, you guessed it – SFA. He and bureaucrats like him don’t see the disparity between CASA actions over several cases, that alone is risible. But the continued, selective, subjective, vindictive, pointless edicts of the self appointed judge, jury and executioners is one of the real root cause of industry problems with the CASA. Consistency of action and safety values matter to all, except to those who rely on those elements to weave their little plots and gain brown-eye points. Disgusting.

Reform of the regulator is paramount - just can’t see Carmody tackling that beast. Brains, balls and good will are required; all in short supply at Sleepy Hollow.


Sorry P7 – I’ll keep the tote running, but SFA is the only entry so far; Negligence and Ineptitude are in training, Malice and Aforethought can’t decide on a rider and Vindictive is waiting on the Vet’s advice. Patience mate, patience.
Damned if you WIN and damned if you don't - Angry

Remember this post? Attempted embuggerance & a Leopard's spots 

In particular this bit:
Quote:Which brings me to another classic example of how the more CASA profess they have embraced the findings and recommendations of the ASRR, the more evidence there is that they and the Department are merely paying lip service and playing for time (obfuscating) any real proactive actions on the ASRR.. [Image: dodgy.gif]

 Keeping in mind that Dr A has been demoted to manager of LSD, the following is a clear example of the lengths CAsA will still go, with malice & aforethought, when it comes to attempted embuggerances of small inconsequential individuals or businesses.
 Reference from AAT: Bellamy and [Image: displeft.png] Civil Aviation Safety Authority [Image: dispright.png] [2016] AATA 956 (29 November 2016)


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

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

124.I certify that the preceding 123 (one- hundred and twenty-three) paragraphs are a true copy of the reasons for the written reasons herein of Egon Fice, Senior Member

Well apparently the head of the 'CASA Office of Enforcement Embuggerance', Dr A was "not happy Egon!!" and has subsequently decided to waste more ATP money on a second (double jeopardy) attempt at once again embuggering that poor bastard Mr Bellamy... Undecided

Quote:[Image: displeft.png][b] Civil Aviation Safety Authority [Image: dispright.png] v Bellamy [2017] FCA 829


30.CASA submitted that the Tribunal had made three errors of law. They were that:◦the Tribunal’s errant finding that reg 229 did not apply to the private operations that Mr Bellamy was undertaking at the time of the crash misled the Tribunal when it was considering whether or not the disqualification grounds had been made out;

◦the Tribunal had misapprehended the elements of the offence for which Mr Bellamy had been convicted, and had made findings of fact which were inconsistent with findings which had been made in the criminal proceedings; and
◦the Tribunal had assessed Mr Bellamy’s fitness and propriety to hold a private pilot’s licence in the aeroplane category on the mistaken basis that his fitness to hold such a licence was to be treated as being distinct from, and unaffected by, his conduct in relation to his operation of a gyroplane and his use of a false maintenance release with the specific intention of unlawfully misleading the CASA investigator and unlawfully influencing CASA’s investigation of the crash.



53. The appeal should be allowed and the Tribunal’s decision set aside. Mr Bellamy should pay CASA’s costs of the appeal.

54. CASA submitted that the matter should be remitted to a differently constituted Tribunal. Whilst acknowledging that the Tribunal had not made any adverse credit findings, it submitted that the case provided “a prime example of a case where a complicated process of fact finding has miscarried through a combination of factors”. Those factors included the assessment of Mr Bellamy’s fitness and propriety, the rejection of the evidence of CASA witnesses and of CASA’s submissions on matters which would fall for reconsideration upon remitter. Reliance was placed on the decisions of the New South Wales Court of Appeal in Seltsam Pty Limited v Ghaleb [2005] NSWCA 208; (2005) 3 DDCR 1 at 8–9; [2005] NSWCA 208 at [13]–[16] (Mason P) and [141] (Ipp JA) and the Western Australian Court of Appeal in Legal Profession Complaints Committee v Rayney [2017] WASCA 78 at [243] (Martin CJ, Murphy JA and Corboy J agreeing).

55. Mr Bellamy, on the other hand, contended that there was no need for any rehearing to be conducted by a different member. He submitted that there was nothing, in the Tribunal’s reasons or in its conduct of the appeal, to suggest to a fair-minded observer that the member might not approach any further hearing with an open mind: cf Seltsam at [142]. Furthermore, it was submitted, the additional time and expense which would be involved if the appeal were to proceed afresh before a different member was not warranted in all the circumstances...

...60. In the present matter there is a range of competing considerations which must inform the exercise of the Court’s discretion. There is no suggestion that the member made any adverse credit findings against any witness, indicated a preference for the evidence of one witness over another or failed to afford the parties procedural fairness. On the other hand, the question of Mr Bellamy’s fitness and propriety to hold a pilot’s licence involved a value judgment based on an assessment of his conduct. The misconstruction of reg 229 played some part in this process and resulted from an analysis of the legislation and a conclusion which had not been urged on the Tribunal by either party. There was also an apparent inclination to minimise the implications of a criminal conviction for dishonesty.

61. This, in my view, is a case in which it would be fairer to the parties were the matter to be heard by a differently constituted Tribunal: cf Northern NSW FM Pty Limited v Australian Broadcasting Tribunal (1990) 26 FCR 39 at 42–43; [1990] FCA 642 at p 6 (Davies and Foster JJ). Any rehearing should not take any longer than the first and may well be shorter if the parties are able to agree that the Tribunal can act on uncontroversial material which was considered by the Tribunal at the first hearing.

62. There will be an order that any rehearing proceed before a differently constituted Tribunal.

 Somehow I think this has less to do with the embuggerance of Mr Bellamy and more about the falling out of favour of the AAAT's Eggon Face - UDB! Dodgy

MTF...P2 Cool
Warning Will Robinson.

This is a ‘point of view’ case though, ain’t it. The Federal Court ‘blurb’ – HERE - makes for interesting reading.

You can see the prosecution argument, it’s the Maintenance Release (MR) which has done the damage. Both sides of the argument ’stack up’ until you wonder why the MR was needed; or thought to be needed. Interesting argument from both sides; but, the court ruled, the fine and costs were imposed along with a ‘criminal’ record. Crime, punishment and an impartial judgement all part of the system, which, cynicism aside, works for the most part in a not perfect world. Mind you, many will argue that without ‘strict liability’ it could have been a lot more difficult for CASA to prove the case; there is also enough evidence of the ‘inspectorate’ not playing by the rules to create reasonable doubt in anyone’s mind. It matters not, the die is cast.

The ‘Egon’ element is interesting; I reckon he is one of the ‘converted’,finally realising that the antics of CASA in the AAAT are risible and that the Mickey was being taken out of what should be a ‘fair’ system, in short, he is reluctant to be convinced by CASA ‘evidence’. Rightly so; and, he may well be out of favour for daring to slap CASA back into it’s box. But, I don’t think that is the reason for  - “62. There will be an order that any rehearing proceed before a differently constituted Tribunal.” It will be Egon's ruling which is being appealed, so it only  makes sense that someone else should ‘judge’ that.

The real worry, IMO, is that CASA were not satisfied with the conviction, but wanted his (Bellamy) licence as well. Is this to become the ultimate goal? CASA proved their case with the MR, the guy has copped a fine and a record for the crime he was charged with; so why persist with taking away his pilot licence?  One crime, one punishment – fair enough; but to persist and extract a second punishment, that seems unreasonable to me.

As said, point of view case this one. I can see where the Fyce ruling may be challenged at law, but it seems to have more to do with unchallenged authority than ‘justice’. Dunno – but read the case through before rushing to conclusion. It’s time well spent – if you want to see how CASA legal operates and where the changes to the regulations need to be made..

Right then, back to my knitting. T-T.

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