FEDERAL COURT OF AUSTRALIA

 

Civil Aviation Safety Authority v Boatman [2006] FCA 460

AVIATION – regulation of air navigation – licences – pilots – cancellation or suspension of licence – whether conduct constituted, contributed to, or resulted in, a serious and imminent risk to air safety.

Civil Aviation Act 1988 (Cth)

Civil Aviation Regulations 1988 (Cth)

Civil Aviation Safety Regulations 1988 (Cth)

Briginshaw v Briginshaw (1938) 60 CLR 336, discussed

Civil Aviation Safety Authority v Boatman (2004) 139 FCR 444, cited

Civil Aviation Safety Authority v Boatman [2004] FCAFC 165, followed

Fleming v Hutchinson (1991) 66 ALJR 211, cited

George v Rockett (1990) 170 CLR 140, applied

Kennelly v Incitec Ltd [1998] FCA 1470, discussed

R v Magdulski (1989) 40 A Crim R 154, cited

CIVIL AVIATION SAFETY AUTHORITY v GRAEME BOATMAN and VALERIE KENNEDY

ACD 13 of 2004

 

 

MADGWICK J

28 APRIL 2006

SYDNEY (HEARD IN CANBERRA AND SYDNEY)

IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY	ACD 13 OF 2004

 

BETWEEN:	CIVIL AVIATION SAFETY AUTHORITY APPLICANT
AND:	GRAEME BOATMAN FIRST RESPONDENT   VALERIE KENNEDY SECOND RESPONDENT

JUDGE:	MADGWICK J
DATE OF ORDER:	28 APRIL 2006
WHERE MADE:	SYDNEY (HEARD IN CANBERRA AND SYDNEY)

 

THE COURT ORDERS THAT:

 

1.                       The period in which any notice of appeal may be filed is extended until 19 May 2006, being 21 days from the date of publication of the reasons for judgment herein.

2.                       The applicant is to pay the respondents’ costs, including any costs incurred before 24 December 2004 which are not the subject of previous final orders of the Court, to be agreed or assessed.

IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY	ACD 13 OF 2004

 

BETWEEN:	CIVIL AVIATION SAFETY AUTHORITY APPLICANT
AND:	GRAEME BOATMAN FIRST RESPONDENT   VALERIE KENNEDY SECOND RESPONDENT

 

JUDGE:	MADGWICK J
DATE:	28 APRIL 2006
PLACE:	SYDNEY (HEARD IN CANBERRA AND SYDNEY)

REASONS FOR JUDGMENT

HIS HONOUR:

Introduction

1                     The Civil Aviation Safety Authority (‘CASA’) applied, pursuant to s 30DE of the Civil Aviation Act 1988 (Cth) (‘the Act’), for orders prohibiting the first and second respondents from doing anything that would otherwise be authorised under their respective pilot licences for a period of 25 days.

2                     I earlier refused the application, and now provide reasons for that decision.

Background and History of Proceedings

3                     The first respondent, Mr Boatman, is a director and shareholder of Boatman Nominees Pty Ltd trading as Stawell Aviation Services (‘Stawell Aviation’).  The second respondent Ms Kennedy is an employee of Boatman Nominees Pty Ltd.  That company held an air operator’s certificate authorizing it to conduct charter operations.

4                     Mr Boatman held a commercial pilot licence endorsed with a condition requiring him, for medical reasons, to have a qualified co-pilot.  He also held a private pilot and a student pilot licence, neither of which had that condition endorsed on it.  Ms Kennedy also held a commercial pilot licence, private licence, student pilot licence and radio telephone licence.  The various licences are species of ‘authorisations’ under the Act.

5                     On 29 April 2004, Mr Boatman was the pilot of a Cessna 172K aircraft, flying with a holder of a student pilot licence and two other passengers, one of whom was a fare-paying passenger who chose to fly in that plane.  Ms Kennedy was the pilot of a Cessna 172RG aircraft, carrying two fare paying passengers and one other passenger.

6                     Each aircraft took off along a public road, Browne Street, in Innamincka, South Australia, a very small and isolated settlement.  The matter came to CASA’s attention and CASA staff made preliminary enquiries.

7                     On 13 May 2004 and pursuant to s 30DC(1) of the Act, CASA suspended the civil aviation authorisations held by the respondents.

8                     As will be seen in more detail below, the legislation envisages a scheme which enables CASA to act in the perceived interests of safety, but allows quick and interim review by this Court.  A case like this would often involve a decision by CASA to suspend an authorisation in circumstances where time has not permitted a proper investigation to occur, an application by CASA to the Federal Court within five days for adjudication of that suspension, and an early hearing of that application by the Court, taking into account the possibility that CASA may need more time for a full investigation. 

9                     However, this matter has followed a much more protracted course.  Prior to the substantive issue being heard, the matter was twice before a Full Federal Court, first in relation to the validity of s 30DE of the Act, the validity of the section being upheld: Civil Aviation Safety Authority v Boatman [2004] FCAFC 165 (‘CASA No 1’); and secondly, in relation to confusion over consent orders that are not relevant to the present proceedings: Civil Aviation Safety Authority v Boatman (2004) 139 FCR 444 (‘CASA No 2’).

Statutory Framework

10                  The statutory framework was set out and considered, from the viewpoint of constitutional validity, in the first Full Court judgment in this matter (CASA No 1).  I reproduce Sundberg J’s summary (at [2]-[11]):

‘Sections 30DC and 30DE are in Division 3A of the Act, which is headed “Serious and imminent risks to air safety”. Division 3A was inserted by the Civil Aviation Amendment Act 2003 (the 2003 Act). Subdivision B, which consists of ss 30DB to 30DD, is headed “Suspension for contravening the serious and imminent risk prohibition”. Section 30DB provides:

 

“The holder of a civil aviation authorisation must not engage in conduct that constitutes, contributes to or results in a serious and imminent risk to air safety.”

 

The expression “civil aviation authorisation” is defined in s 3 of the Act as

 

“an authorisation under the Civil Aviation Regulations to undertake a particular activity (whether the authorisation is called an authority, licence, certificate, rating or endorsement or is known by some other name”.

 

Section 30DC(1) provides:

 

“Where CASA has reason to believe that the holder of a civil aviation authorisation has engaged in, is engaging in, or is likely to engage in, conduct that contravenes section 30DB, CASA may suspend the authorisation by giving written notice to the holder.”

 

The subsection is followed by a “Note” that CASA is not required to give the holder a show cause notice before making a decision under the subsection.  Subsection (3) provides:

 

“The suspension ends at the end of the fifth business day after the day on which the holder was notified of the suspension, unless before that time CASA makes an application to the Federal Court under section 30DE.”

 

A “Note” to the subsection informs the reader that if CASA makes an application in time, the suspension continues in force until it comes to an end under s 30DJ.

Subdivision C, which consists of ss 30DE and 30DF, is headed “Court order in relation to the serious and imminent risk prohibition”.  Section 30DE is as follows:

“(1)      If CASA suspends a civil aviation authorisation under section 30DC, CASA may, before the end of the fifth business day after the day on which the holder of the authorisation was

notified of the suspension, apply to the Federal Court for an order under this section.

(2)       If the Federal Court is satisfied that there are reasonable grounds to believe that the holder has engaged in, is engaging in, or is likely to engage in, conduct that contravenes section 30DB, the Court must make an order that prohibits the holder from doing anything that is authorised by the authorisation but that, without the authorisation, would be unlawful.

(3)       In deciding under subsection (2), the Federal Court must have regard to section 3A and subsection 9A(1).

(4)       Subject to section 30DF, an order continues in force for the period determined by the Federal Court when making the order, being the period (not more than 40 days) that the Court considers reasonable to allow CASA to complete an investigation into the circumstances that gave rise to CASA’s decision to suspend the authorisation.”

 

Section 30DF empowers the Court to extend (by not more than twenty eight days) or shorten the period determined under s 30DE(4).

Sections 3A and 9A(1), referred to in s 30DE(3), are as follows:

 

“3A      The main object of this Act is to establish a regulatory framework for maintaining, enhancing and promoting the safety of civil aviation, with particular emphasis on preventing aviation accidents and incidents.

…

9A(1)   In exercising its powers and performing its functions, CASA must regard the safety of air navigation as the most important consideration.”

 

CASA’s functions are listed in s 9. They include the function of conducting the safety regulation of civil air operations in Australian territory in accordance with the Act and the regulations.

Subdivision D, which consists of ss 30DG to 30DJ, is headed “Investigation and further action by CASA”. Section 30DG provides:

 

“If the Federal Court makes an order under section 30DE in relation to a civil aviation authorisation, CASA must, by the end of the period that the order is in force, complete an investigation into the circumstances that gave rise to CASA’s decision to suspend the authorisation under section 30DC.”

 

Section 30DH provides:

“(1)      This section applies if, after CASA’s investigation under section 30DG:

(a)        CASA has reason to believe that a serious and imminent risk to air safety would exist if the civil aviation

authorisation were not varied, suspended or cancelled; and

(b)       the grounds for CASA’s belief are related to the circumstances that gave rise to CASA’s decision to suspend the authorisation under section 30DC.

(2)       CASA may, within 5 business days after the last day on which the order is in force:

(a)        give the holder of the authorisation a show cause notice; and

(b)       allow the holder to show cause, within such reasonable time as CASA specifies in the notice (not more than 28 days), why the authorisation should not be varied, suspended or cancelled.”

 

Section 30DI provides:

“(1)      This section applies if, after the end of the period specified in a show cause notice given under section 30DH:

(a)        CASA is satisfied that a serious and imminent risk to air safety would exist if the civil aviation authorisation were not varied, suspended or cancelled; and

(b)       the grounds for CASA’s belief are related to the circumstances that gave rise to CASA’s decision to suspend the authorisation under section 30DC.

(2)       CASA may vary, suspend or cancel the authorisation, by written notice given to the holder of the authorisation within 5 business days after the end of the period specified in the show cause notice.”

 

Section 30DJ provides:

 

“If CASA suspends a civil aviation authorisation under section 30DC and applies to the Federal Court for an order under section 30DE, the suspension continues in force until the time worked out under the table (unless earlier revoked).”

The effect of the table is that:

·                   if CASA’s application for an order is withdrawn or refused, the suspension ends at the time of withdrawal or refusal

·                   if in the five business days after the last day on which the order was in force CASA does not give the holder a show cause notice under s 30DH, the suspension ends at the conclusion of the fifth business day after the order ceased to be in force

·                   if CASA varies, suspends or cancels the authorisation under s 30DI, the suspension ends at the time the holder is notified of the variation, suspension or cancellation

·                   if CASA has given the holder a show cause notice under s 30DH, but in the five business days after the last day of the period specified in the notice does not vary, suspend or cancel the authorisation, the suspension ends at the conclusion of the fifth business day after the last day of the period specified in the show cause notice.

The respondents attack the validity of s 30DE on two grounds.  The first is that it purports to confer on the Court a power that is not judicial power.  The second is that the provision does not assign jurisdiction to the Court in a “matter” for the purposes of s 39B(1A)(c) of the Judiciary Act or s 76 of the Constitution.

The regulatory regime preceding that introduced by the 2003 Act was contained in regs 268 and 269 of the Regulations. The effect of reg 268 can be summarised as follows:

·                   where CASA had reason to believe that there may be a serious risk to air safety if an authorisation were not suspended, it could suspend the authorisation

·                   where CASA suspended the authorisation it was required forthwith to investigate the matter, and the suspension would cease upon completion of the investigation or at the expiration of twenty eight days from the date on which the suspension took effect, whichever was the earlier

·                   where upon completion of the investigation CASA gave the holder a notice under reg 269, the authorisation remained suspended during the time specified by CASA in that notice as the time within which the holder may show cause why the authorisation should not be varied, suspended or cancelled under reg 269.

The effect of reg 269 can be summarised as follows:

·                   CASA was empowered to vary, suspend or cancel an authorisation when it was satisfied that one or more specified grounds existed (including contravention of the Regulations and breach of the duty to operate aircraft safely)

·                   before taking action to vary, suspend or cancel an authorisation, CASA was required to give notice to the holder of the facts that in its opinion warranted consideration being given to the variation, suspension or cancellation, and allow the holder to show cause why the authorisation should not be varied, suspended or cancelled.

As can be seen, the Court had no role in this scheme. CASA was the sole actor.

In the second reading speech introducing the bill that became the 2003 Act, the Minister said:

 

“The bill also introduces new enforcement measures, which will provide CASA with a wider range of enforcement tools to better match the regulatory action to the seriousness of the breach. These measures will help to ensure that justice is not only done but seen to be done by providing a range of options for CASA to vary, suspend or cancel aviation authorisations such as licences and air operators certificates. This is consistent with a risk based approach to safety management ...

 

Very importantly, included in these enforcement tools will be a scheme to allow an automatic ‘stay’ of CASA’s final decision to vary, suspend or cancel an authorisation in cases other than a serious and imminent risk to air safety. The automatic stay will enhance fairness by reducing the time an authorisation holder is grounded while awaiting a review of CASA’s decision by the Administrative Appeals Tribunal.

 

The bill introduces the concept of a Federal Court exclusion order, where there is a serious and imminent risk to air safety. Under the new enforcement regime, CASA will retain the power to immediately suspend an authorisation where there is a serious and imminent risk to safety, but it will be required to apply to the Federal Court within five days of its decision for the court to adjudicate the suspension.

 

These new reforms address the perception in aviation circles that CASA is somehow judge, jury and executioner.”

 

The automatic stay provisions are found in s 31A, nothing in which prevents CASA from suspending an authorisation under s 30DC: s 31D.

The two tiered regime introduced by the 2003 Act (serious and imminent risk to air safety and less serious cases) left CASA’s role substantially unchanged as to the latter, but introduced the Court as a player at one stage in relation to the former. In serious and imminent risk cases, CASA is empowered to impose a suspension that concludes at the end of the fifth business day after the holder is notified of the suspension: s 30DC. CASA is not required to give the holder notice before imposing the suspension. This short term suspension was not inappropriately described by the Solicitor‑General as an interim disqualification, similar to that imposed by courts on applications for interim injunctions. If there is to be any extension of the interim suspension, it can only be done by the Court. Any such extension is analogous to the grant of an interlocutory injunction prior to the expiration of an interim injunction. …’  (the added emphasis is mine, not Sundberg J’s)

11                  Regulation 269 ‘Variation, suspension or cancellation of licence, certificate or authority’ of the Civil Aviation Regulations 1988 (Cth) (‘CAR’) provides, so far as is relevant:

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

(a)     that the holder of the licence, certificate or authority has contravened, a provision of the Act or these Regulations, including these Regulations as in force by virtue of a law of a State;

(b)     that the holder of the licence, certificate or authority fails to satisfy, or to continue to satisfy, any requirement prescribed by, or specified under, these Regulations in relation to the obtaining or holding of such a licence or certificate or an authority;

(c)     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

(e)     that the holder of the licence, certificate or authority has contravened, a direction or instruction with respect to a matter affecting the safe navigation and operation of an aircraft, being a direction or instruction that is contained in Civil Aviation Orders.

(1A)     CASA must not cancel a licence, certificate or authority under subregulation (1) because of a contravention mentioned in paragraph (1)(a) unless:

(a)     the holder of the licence, certificate or authority has been convicted by a court of an offence against a provision of the Act or these Regulations (including these Regulations as in force by virtue of a law of a State) in respect of the contravention; or

(b)     the person was charged before a court with an offence against a provision of the Act or these Regulations (including these Regulations as in force by virtue of a law of a State) in respect of the contravention and was found by the court to have committed the offence, but the court did not proceed to convict the person of the offence.’

12                  Given the nature of the road used for the take-offs, the provisions of reg 92 of the CAR (‘Use of Aerodromes’) are relevant here:

‘(1)      A person must not land an aircraft on, or engage in conduct that causes an aircraft to take off from, a place that does not satisfy one or more of the following requirements:

            (a)       the place is an aerodrome established under the Air Navigation Regulations;

            (b)       the use of the place as an aerodrome is authorised by a certificate granted, or registration, …

            (c)        the place is an aerodrome for which an arrangement under section 20 of the Act is in force and the use of the aerodrome by aircraft engaged in civil air navigation is authorised by CASA under that section;

            (d)       the place (not being a place referred to in paragraph (a), (b) or (c) is suitable for use as an aerodrome for the purposes of the landing and taking-off of aircraft;

and, having regard to all the circumstances of the proposed landing or take-off (including the prevailing weather conditions), the aircraft can land at, or take-off from, the place in safety. …’  (Emphasis added)

 

13                  Regulation 139.015 of the Civil Aviation Safety Regulations 1988 (Cth) (‘CASR’) states ‘[t]he standards for aerodromes are those set out in the Manual of Standards’.  Section 1.2 of the Manual of Standards defines a ‘runway strip’ as:

‘A defined area including the runway and stopway, if provided, intended:

1.                  to reduce the risk of damage to aircraft running off a runway; and

2.                  to protect aircraft flying over it during take-off or landing operations.’

The terms ‘runway’ and ‘runway strip’ have technical meanings in aviation circles – see the Appendix to these reasons.

14                  Regulations 215(2) and (9) of the CAR provide:

‘(2)      The operator must ensure that the operations manual contains such information, procedures and instructions with respect to the flight operations of all types of aircraft operated by the operator as are necessary to ensure the safe conduct of the flight operations (other than information, procedures or instructions that are set out in other documents required to be carried in the aircraft in pursuance of these regulations). …

…

(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. …’

 

CASA has published advisory, non-mandatory material in relation to landing areas.  This is known as the Civil Aviation Advisory Publication or CAAP 92-1(1).  So far as relevant, it appears in the Appendix to these reasons.

The current application

15                  The key issues for determination were whether the Court was satisfied that there were reasonable grounds to believe that either respondent had engaged in conduct that contravened s 30DB – that is, conduct that constituted, contributed to or resulted in a ‘serious and imminent risk to air safety’.

16                  It may be noted that, if the Court is satisfied that the grounds referred to in s 30DE(2) exist, then it must make a prohibition order under s 30DE(2): there is no discretion to decline to make such an order once the test is satisfied.  Importantly, the provision does not require that the Court be satisfied that the respondents engaged in, or are likely to engage in, conduct that contravenes s 30DB; only that there be reasonable grounds to believe that the respondents engaged, or are likely to engage, in such conduct.

17                  Determination of that issue involves three steps.  First, consideration must be given to the meaning of ‘reasonable grounds to believe’.  Secondly, it is necessary to understand what is meant by ‘serious and imminent risk to air safety’.  Finally, those tests must be applied to the conduct of the respondents.

‘Reasonable grounds to believe’

(i)         Applicant’s Submissions

18                  CASA submitted that the requirement to establish ‘reasonable grounds to believe’ falls well short of a requirement to satisfy the Court that the respondents did in fact engage in conduct of the requisite character.  It requires only that the Court be persuaded that, upon the evidence before it, there are grounds upon which a belief may be based that the respondent had engaged in such conduct (or is likely to engage in it).  The presence of grounds to believe the contrary is not inconsistent with the presence of grounds that satisfy the test: R v Magdulski (1989) 40 A Crim R 154.

19                  The applicant further relied on George v Rockett (1990) 170 CLR 104 (‘Rockett­’) at 116:

 ‘The objective circumstances sufficient to show a reason to believe something need to point more clearly to the subject matter of the belief, but that is not to say that the objective circumstances must establish on the balance of probabilities that the subject matter in fact occurred or exists: the assent of belief is given on more slender evidence than proof.  Belief is an inclination of the mind towards assenting to, rather than rejecting, a proposition and the grounds which can reasonably induce that inclination of the mind may, depending on the circumstances, leave something to surmise or conjecture.’

 

20                  CASA submitted that, in deciding whether grounds are ‘reasonable’, emphasis is to be given to the primacy of the maintenance, enhancement and promotion of air safety, with particular emphasis on prevention of accidents and incidents.  The applicant further contended that the establishment of those grounds, though objective, contemplates a reasonable person in the position of CASA, as is apparent from the reference in s 30DE(3) to ss 3A and 9A(1).

(ii)        Respondents’ Submissions

21                  The principal proposition advanced by the respondents is that it cannot be the case that all that is required is ‘reasonable grounds to believe’ without taking account of any rebuttal evidence, as such a test would result in CASA’s application being successful every time. 

22                  As to what is involved in ‘reasonable grounds for a belief’, the passage cited from Rockett is obiter as to belief because that case concerned suspicion.  In any case, the respondents said that the High Court really decided in Rockett that ‘reasonable grounds for believing’ ‘[r]equires the existence of facts sufficient to induce’ an actual belief (at 112-3), so that, to discharge its legal onus, while the applicant does not need to prove on the balance of probabilities that the take-offs at Innamincka constituted a serious and imminent risk to air safety, it must nevertheless prove facts sufficient to induce a belief in that proposition. 

23                  The respondents nevertheless submitted that the facts necessary to induce the state of mind (reasonable grounds) must be established on the balance of probabilities.  However, as soon as evidence is adduced that shows that on the balance of probabilities there was not a serious and imminent risk to air safety, then the evidentiary burden shifts back to the applicant.  The respondents also submitted that the well-known principles in Briginshaw v Briginshaw (1938) 60 CLR 336 (‘Briginshaw’)at 361-3 are applicable.

(iii)       Consideration

24                  Although in the present case there was time for a full investigation to take place, ordinarily the legislature’s evident contemplation was that the Court will have the task of forming its judgment on incomplete materials.  Thus a reasonably sanguine view must be taken of the way in which reasonable people might differ in their approach to matters.  So, even if the Court took the view that a serious and imminent risk to air safety were not affirmatively proven on the balance of probabilities, in my opinion the Court nevertheless should be cautious, if there be some evidence of relevant matters for concern, before concluding that there is no reasonable ground for belief. 

25                  I do not accept that the establishment of the reasonable grounds for the necessary belief necessarily contemplates a reasonable person in the position of CASA.  The point of the requisite approach to the Court is clearly to enable the Court to decide on all the materials before it, whether, objectively, there are reasonable grounds for the requisite belief.  The Court is to adjudicate that matter, not CASA.  It is not a mere question of considering whether CASA’s view was such that no reasonable person could hold it.  The Court is to form its own view of what are reasonable grounds for belief.  So, the question is:  regardless of whether or not there was in fact a serious and imminent risk to air safety, are reasonable grounds shown to the Court’s satisfaction to induce an actual belief that there was such a risk?  As the High Court said in Rockett (at [116]): 

‘Belief is an inclination of the mind towards assenting to, rather than rejecting, a proposition and the grounds which can reasonably induce that inclination of the mind may, depending on the circumstances, leave something to surmise or conjecture.’

26                  Whereas the fact of such a risk need not be established, it will not, on the other hand, be sufficient to show reasonable grounds for a mere suspicion, even a serious suspicion, that there was a risk of the relevant kind. 

27                  If the judge is moved by all the evidence to conclude that there was in fact such a risk, it will follow that there were reasonable grounds for that belief.  If not, the judge must consider whether, nevertheless, there are, in the judge’s opinion, reasonable grounds for so believing.

‘Serious and Imminent Risk to Air Safety’

28                  There was no fundamental disagreement between the parties as to the individual meanings to be accorded to the words comprising the phrase: ‘serious’ means significant in degree or amount, giving cause for concern or apprehension; ‘imminent’ means impending, coming on shortly, or close at hand; ‘risk’ is the possibility of suffering harm or loss; and ‘air safety’ refers to the freedom from unacceptable risks to personal harm or danger, or damage to property in or in connection with a flying or ‘air’ operation.

29                  However, the phrase being composite in nature and having a particular context, the parties differed in their emphases, so that the overall meaning of ‘serious and imminent risk to air safety’ remains to be determined.

(i)         Applicant’s submissions

30                  The applicant submitted that a ‘serious and imminent risk’ is a considerable or significant exposure, close at hand, to the chance of injury to person or damage to property.  The words are intended as a compound expression identifying qualitatively the nature of the risk – serious and imminent.  The elements which make up that compound expression cannot be separated and considered in isolation from one another.

31                  The applicant correctly points out that the fact that a risk does not materialize into an incident does not deny the existence of the risk, nor its seriousness.  The applicant says that it is the risk of exposure to the potential for harm that must be serious and imminent, not its materialisation.  So it is the exposure that has to be serious and imminent, not the materialisation of the risk. 

32                  The level of a risk is a function of three factors, the combination of which produces an overall risk level:

(i)                 The probability/likelihood of the risk.  This can be measured on a continuous scale, from ‘conceivable’ through ‘possible’ and ‘likely’ to ‘certain’.

(ii)                The extent of exposure.  Exposure refers to how often there is an exposure to the source of the risk, ranging from ‘infrequent’ through ‘occasional’ and ‘frequent’ to ‘continuous’.

(iii)              The potential consequences.  This refers to the magnitude of the potential consequences of the risk, which might range from ‘insignificant’ with little or no impact, through ‘minor’ requiring first aid treatment or minor loss or damage of property, through ‘serious’ involving serious injury, permanent disability, major property damage; ‘disastrous’ including fatalities and significant injuries and loss of assets; to ‘catastrophic’ involving numerous fatalities, significant loss of assets and major disruption to activities or capabilities.

33                  In relation to the third factor of potential consequences, the applicant contended that the ‘word “serious” imports a test which is relative to the range of possible risks’.  It is a question of degree:  see Fleming v Hutchinson (1991) 66 ALJR 211 at 211 per Mason CJ, Brennan and Dawson JJ, albeit in a different context, where it was said by McGarvie J that ‘elements of fact, degree and judgement are involved’.

34                  Further, the applicant drew an analogy with Kennelly v Incitec Ltd [1998] FCA 1470 (‘Kennelly’).  In that case, Mr Kennelly was an experienced ‘versatile operator’ of an elevator used to transport fertilizer to the top of a tower approximately five storeys high.  He was dismissed for conduct said to be such as to cause ‘imminent and serious risk’ to the ‘safety, of a person’ within the meaning of reg 30CA of the Workplace Relations Regulations 1989(Cth).  The central feature of the impugned conduct of Mr Kennelly was the removal of a ‘danger tag’ on the head roller of the elevator without ensuring by inspection that it was safe to commence the operation of the elevator.  Spender J said (at 15-16):

‘…in my opinion, it remains plain that his failure to ensure that the machinery, which the danger tag indicated had been the subject of fitter repairs, was in a position properly to be started, is an act that involved the risk of very serious injury to any person working on or in the vicinity of the machine at the time of it start up.  The failure to inspect the machine was a serious breach of Mr Kennelly’s obligations in the operation of the systems dealing with safety in the workplace.  Such visual inspection as he performed was wholly insufficient to discharge his responsibilities in the circumstances, and the fact that fortunately no person was injured or killed as a result of the operation of the elevator on that morning cannot affect the conclusion that the start up in the circumstances involved a serious risk of injury.

“Risk” is defined in the Macquarie Dictionary to include “exposure to the chance of injury or loss; a hazard or dangerous chance; to expose to the chance of injury or loss, or hazard”.  It is clear on the evidence that Mr Kennelly   exposed employees and maintenance workers to the chance of injury or loss in removing the danger tag and operating the elevator without performing the physical inspection of the head roller on the morning of 8 September 1997, and satisfying himself that it was safe to remove the danger tag and operate the elevator.  There was the possibility that such persons might be working on, or in the vicinity of, the head roller, when Mr Kennelly  removed the danger tag and commenced the operation of the head roller.’  (emphasis added)

35                  The applicant said the following can be taken from this case:

(i)                 it is the risk that must be imminent, not the actuality of the occurrence; and

(ii)                the occasioning of the means by which the risk may be manifested (that is, the operation of an aircraft) affects the imminence of the risk.

(ii)        Respondents’ submissions

36                  The respondents submitted that both ‘serious’ and ‘imminent’ import the notion, in their context, of a high probability of a risk being realised, whether or not it is in fact realized.  Where that high probability is missing (as in the present case, on the respondents’ submission), no matter how catastrophic the potential consequences, a risk cannot be characterized as a serious and imminent risk to air safety.

37                  The respondents submitted that the meaning of the phrase ‘serious and imminent risk to air safety’ should be determined by reference to its context in Division 3A of the Act.  Given the scope of reg 269 of the CAR (see para [11] above), Division 3A should be confined to the hopefully exceptional circumstance of serious and imminent risk to air safety. 

38                  The respondents submit that the notion of ‘serious risk’ has two limbs to it.

(i)                  The seriousness of the risk is principally, but not solely, related to the probability of the risk being realised; and

(ii)                In the context of s 30DB, it must also relate to the significance of the consequence:  a high chance of quite minor harm occurring is not what the section is aimed at.

39                  As to ‘imminent’, this necessarily entails not only that there is a high probability of the risk being realised, but that that risk is one that may be realised in a short time frame, that is, very soon.

40                  The respondents submitted that the case of the applicant focused on the magnitude of the potential consequences, and not on the probabilities of such consequences being realised.  In the present case, the respondents cast no doubt upon the potential seriousness of the consequences, but said that there was only an ‘outside’ (to use a word discussed in argument) or remote chance that such consequences would materialize.  Therefore there was not a ‘serious risk’.

41                  The respondents say that if there were a strong chance of some quite minor harm, that is not what the section is concerned with.  Neither, if there were a miniscule chance of major harm, is such the concern of the section.  All flying involves a degree of risk.  A really significant chance of significant harm occurring is what the section contemplates.

(iii)       Consideration

42                  In CASA No 1, Sundberg J observed at [15]: ‘The power conferred by s 30DE is no different in its nature from that routinely exercised by a court of determining whether a motor vehicle is being driven dangerously, recklessly or negligently’.

43                  It was not in dispute that all flying involves risks to life and limb and that no flying avoids all outside chances.  This is a significant aspect of the context.  The section cannot be concerned simply with the seriousness of the consequences if the risk of an accident should become an actuality.

44                  The phrase ‘a serious and imminent risk to air safety’ is a difficult one to comprehend fully in relation to all possible circumstances in which it might fall for consideration.  It is, to a degree, a composite phrase:  it is not appropriate to see ‘serious’ as only referring to the risk of harm occurring.  In the context, ‘serious’ means something like ‘really significant’.  However, if a licence holder had done something indicative of very poor regard for safety but the potential consequences were only very slight then it might be unfair to call that a serious and imminent risk to air safety.

45                  I agree with the applicant that the level of a risk is a product of a number of factors which include the probability or likelihood of its occurring, the degree of exposure and the potential consequences.  Nevertheless, in most cases attention will focus on the degree of likelihood that a risk to air safety would eventuate.  At least that is, to my mind, true of the present case.

46                  As counsel for the respondents Mr Langmead SC (no doubt drawing on his experience as a pilot) submitted:

‘To fly into a thunderstorm with little flying experience, to fly at wire height in the vicinity of wires without inspecting the area first, or to perform low level aerobatic manoeuvres without proper training … would be to engage in conduct that constitutes a serious and imminent risk to air safety, because great harm is very likely to happen very shortly.

To engage in a takeoff where risks are present, but rather than being serious and imminent they are merely outside chances, is to engage in conduct which does not constitute a serious and imminent risk to air safety.  There is no flying which avoids risks that are outside chances.’

That is, all flying entails risks which, it is hoped, are remote.

47                  The underlying concern of the legislation seems to be: in the interests of air safety, is the conduct of the authorisation holder such as to warrant immediate, temporary withdrawal of the rights of the authorised person, even though that might, in some (but, of course, not all) cases, mean the destruction or significant impairment of the holder’s livelihood?  At least the statutory test has, in my opinion, to be viewed with that notion as part of the context.

48                  However, the injunction in s 30DE(3) that the Court must have regard to s 3A and subs 9A(1) also modifies the Court’s role: the question is less one of possible hardship to the authorisation holder, than of considering the seriousness of the risk, as justifying interim suspension.  The justification and the question of seriousness are to be approached with the two criteria of placing particular emphasis on preventing situations threatening safety, and viewing safety as the most important consideration, primarily in mind.  That said, the question, at least in a case such as the present, still comes down to the likelihood of the risk materialising.

49                  The prospect that a risk will materialise does not, other things being equal, alter according to the classification of a flight as private or commercial, nor depending on the reasons or necessity for undertaking the manoeuvres which give rise to the risk.

50                  It is also useful to note that the degree of likelihood of the risks eventuating is a different question from others not uncommonly asked in situations of risk.  In themselves, breaches of lawful regulatory requirements, or of civil duties of care to third parties, are by no means decisive and may deflect attention from the proper inquiry.  As counsel for the respondents submitted, such breaches, as well as matters such as ceasing to be a fit and proper person to hold the relevant authorisation/licence, conduct falling short of ‘best practice’, and some elevation of the level of risk, can exist without there being reason to believe that there has been a serious and imminent risk to air safety.  It is, conversely, unnecessary that a serious and imminent risk should be attended by breach of express regulatory requirements, though such would be an unusual case.  Further, the existence of regulatory requirements may provide evidence of the existence of a risk or its elevation if they are breached.

51                  Reliance was placed by CASA on Stone J’s observations in the Full Court decision of CASA No 1.  Her Honour said (at [49] and [53]):

‘In making its determination under s 30DE the Court must consider the conduct that is said to have occurred and assess that conduct against the criterion of “a serious and imminent risk to air safety”.  In assessing the conduct the Court is not in the position of having to formulate its own standards but may be guided by the detailed standards regulating air safety set out in the relevant regulations, Civil Aviation Publications and Civil Aviation Orders as well as other evidence before the Court. 

…

The authorisation holder has an obligation not to contravene s 30DB and the Court must decide if he or she has done so or is likely to do so.  It determines this question with reference to the standards laid down by the Act and the regulations.  CASA’s right to interfere with the authorisation holder doing that which is permitted by the authorisation is conditioned by the Court’s determination under s 30DE(2).’

52                  It seems to me that her Honour’s reference to the ‘other evidence before the Court’ is significant.  No doubt mandatory standards laid down by delegated legislation may be evidence of the existence of risks.  But the judgment as to grounds for belief in a ‘serious and imminent risk’ remains squarely with the Court on all the material before it.  I do not understand her Honour to have been saying more than this in the context of her concern to demonstrate the correctness of her conclusion that the legislation does not require the Court to perform a non-judicial function.  It would, in my view, be wrong necessarily to equate what might be termed a ‘serious breach’ of a regulation with the existence of a serious and imminent safety risk.

53                  There is something of a panoply of powers, quite apart from those given to CASA by Div 3A of the Act, designed to deal with risks in relation to aircraft and air safety.  It is clear enough, I think, that Div 3A was intended only for cases where a responsible attitude to air safety demands immediate action protective of the public (including, in some cases, the holder of the relevant authorisation).

54                  Since it is air safety Div 3A of the Act is concerned with, this implies that inevitable risks and risks commonly accepted by competent pilots in Australian flying conditions are not within the purview of the statutory notion of a ‘serious and imminent risk’; if that were not so, much accepted light civil aviation might be required to cease.

55                  So far as the present case goes, the test is, in my opinion, given appropriate meaning by asking:  was there a really significant prospect that such risks of serious considerable harm as actually existed, in relation to the conduct complained of, would materialise?  It seems to me that there were such risks and that choices and actions of the pilots contributed to such risks.  If there were, on all the evidence, reasonable grounds for believing that there was actually a significant chance that those risks would eventuate, then CASA would have made out its case. 

56                  In Kennelly a danger tag was attached to grain-elevating machinery having the capacity, if it malfunctioned, to threaten safety.  The purpose of the tag was to indicate that a danger existed if the machinery were started before a competent person had indicated that it was safe to do so.  A supervising employee removed the tag without ensuring by inspection that it was safe to put the equipment into operation.  Thus, in the face of a clear indication that a dangerous situation might exist, a person responsible for making an inspection to see whether that dangerous situation did exist, failed to do so.  His Honour’s finding that this was conduct that caused ‘imminent, and serious, risk’ to safety commands respect.

57                  That case is different from the present.  In Kennelly there was no doubt that a dangerous situation existed.  The worker did not take a readily available step to confirm or dispel the warning offered by the danger tag.  Here, the question is whether there are reasonable grounds to believe that such elevation of the risks in taking-off as occurred was in the actual circumstances prevailing, ‘serious’ and whether, the steps taken to recognise and avert any such risks were sufficient to render the risks, in their context, less than ‘serious’.  As will appear, in my view, reasonable grounds do not exist to believe that the elevation of the risks given the steps taken by the experienced pilots in the interests of their own and their passengers’ safety constituted a serious risk to air safety. 

58                  The respondents submitted:

‘Realisation of a risk which was no more than an “outside chance” would not necessarily be caught by section 30DB.  For example:

a)        consider a landing aircraft which collided with an aircraft which was positioned adjacent to the runway at a holding point but which unexpectedly moved forward on to the runway into the path of the landing aircraft.  Notwithstanding the seriousness (in the sense of significance) of the consequences, this circumstance would not necessarily be conduct that constitutes, contributes to or results in a serious and imminent risk to air safety, in respect of the landing aircraft.  The relevant conduct is proceeding with the landing with an aircraft adjacent to the runway (a common occurrence).  There is plainly a possibility that the parked aircraft will infringe the runway.  But despite that remote possibility occurring, landing an aircraft in that circumstances does not constitute, contribute to or result in encountering a serious and imminent risk to air safety.  It entails encountering a remote possibility, which against the odds, materialised.

b)        consider a single engine aircraft flying over the sea, beyond gliding distance of land.  Despite the reliability of aircraft engines, they can and do fail.  To undertake such a flight with a normally functioning well maintained engine, is acceptable and lawful conduct not caught by section 30DB, because to undertake such a flight is to encounter merely a remote risk to air safety, not a serious and imminent risk to air safety.  This is so whether or not the engine actually fails over the water and the aircraft is forced to ditch with serious consequences.’ (original emphasis)

59                  While there may be less stark examples than those given of flying which constitutes a serious and imminent risk to air safety, I agree with the general thrust of the distinctions drawn.

Other legal issues

60                  Some matters arguably not best conducive to air safety investigation flow from the review of CASA’s investigation having been committed to a court.  The proceedings are between parties in an adversarial context.  Many procedural rules long worked out for inter‑parties litigation are thereby attracted.  For example, the Court is not free to inform itself in any manner it thinks fit but is, with quite narrow exceptions, confined to the material addressed by the parties.

61                  Another instance is that, absent applications for adjournments and questions of costs (and other potential hardship for non-corporate parties), the Court is bound to see the proceedings conducted on the issues presented by the parties to each other in the pre-trial processes adopted for the purpose of defining the issues.  Thus, there was some, apparently credible, initial material before CASA officers to suggest that Mr Boatman’s student was actually controlling the plane in which they were.  Later, Mr Boatman and the student denied this.  The matter was then presented to the respondents in the preparatory phases of the litigation in a way that did not press the more alarming scenario.  An attempt was made on CASA’s behalf to revive that version at the hearing but, on familiar grounds of the kind indicated as appropriate for adversarial litigation, I upheld the respondent’s objection to that course.

62                  As to the ease with which the Court should be satisfied of matters adverse to them, the respondents submitted that, given the seriousness of the consequences for their reputation and livelihood of adverse findings, the evidentiary principles in Briginshaw at 361-3 are applicable.  I disagree.  The proceedings are primarily protective of the public, notwithstanding that fairness to impugned authorisation holders is an important part of the process.  Further, any adverse finding that the Court might make is provisional only:  it would merely assert that there are reasonable grounds for believing that some conduct had been in contravention of the statutory requirement.  It would be inconsistent with the statutory commands to the Court to consider ‘reasonable grounds to believe’ and to give safety the primary emphasis to require that the Court only act on proofs which are not ‘inexact’, testimony which is not ‘indefinite’ and inferences which are not ‘indirect’ (see Briginshaw at 362).

Whether the respondents contributed to a serious and imminent risk to air safety

(i)         The two pilots

63                  Mr Boatman was in his sixties, and an extremely well-qualified and experienced pilot in relation to bush flying, including in relation to the use of narrow and curved runways.  He had over 12 000 hours of flying experience, mostly in light single-engine aircraft such as Cessnas, accumulated over a period of 40-odd years.  He had been to Innamincka and other like remote places before.  He had many years, and thousands of hours of experience in instructing trainee pilots and licensed pilots in advanced safe handling techniques.  For 14 years he had conducted an advanced safe handling course, training pilots in relation to using airstrips with difficult approaches, upslopes, downslopes and undulations, including landings and take-offs on curved strips, and using strips narrower than the road at Innamincka.  He had, among other things, at the request of a Papua New Guinea commercial airline operator, trained some 50 pilots for operations in the notoriously difficult airstrips and conditions there.

64                  Mr Boatman had also trained Ms Kennedy in such specialised techniques including take-offs and landings into strips much more difficult, in Mr Boatman’s opinion, than would be the road at Innamincka.  Ms Kennedy had some four years’ flying experience, including ‘reasonable experience flying in the outback and in respect of operations from unmade surfaces and marginal areas’. 

(ii)        Events at Innamincka prior to take-off

65                  Stawell Aviation, through Mr Boatman, had arranged to fly passengers, some for reward, from Stawell in Victoria to see Lake Eyre with water in it.  The trip was intended to be a three-day charter flight from Tuesday 27 to Thursday 29 April 2004 inclusive.  The intention was to have the paying passengers fly in the plane piloted by Ms Kennedy and to have some other private passengers in the aircraft piloted by Mr Boatman.  One of those was a student pilot, Mr Barber, whom Mr Boatman had been training.  So far as Mr Barber was concerned, the trip was in part aimed at extending his skills in outback map-reading.

66                  The two aircraft arrived without incident in Innamincka, as planned, in the afternoon of 27 April 2004.  The party stayed overnight at the hotel there, anticipating a departure the following morning.  However, the next morning it rained sufficiently to prevent the use of the small purpose-built airstrip on the settlement’s outskirts.

67                  The respondents examined that airstrip and computer weather forecasts available.  They decided that the strip (and another nearby, privately-owned, made strip) would be unserviceable for that day, 28 April 2004, on account of the weather.  Further heavy rain fell throughout that day and into the evening.  Later that day, Mr Boatman and Ms Kennedy then considered using the gravel roadway known as Browne Street, as a place from which to take-off. 

68                  Browne Street runs approximately east-west.  Its eastern end terminates at, or near, the town airstrip.  Its western end terminates to the west of the hotel complex which appears to be the most significant built structure in the settlement.  Browne Street was a formed, unsealed road with a significant degree of camber.  It was flanked at various distances from its centreline and made surface, by posts, including steel posts.  The roadway was formed with gravel and was not wide.  The formed surface was between 10 and 15 metres wide, probably closer, mostly, to 10 metres.  There were rough verges – pitted, likely soft, furrowed with small ditches, and with some rocks on the surface.  A light plane would likely have been in trouble if it hit one of those steel posts, or if any of its wheels had run off the made roadway.  Travelling westwards along Browne Street it, it has a long curve to the right, over which it changes its course by about 47 degrees.  It also contains a slope which leads down to the west from a blind crest.  The slope has a 6 degree gradient.  A downward slope shortens the distance required for take-off.

69                  The wingspan of each plane was about 11 metres.  The under-wing height was about 1.8 metres. 

70                  Surprisingly but convincingly, all the evidence was that it is very rare for a pilot to be blown significantly off-course during the ground run of a take-off.  (The weather conditions at the times of the take-offs the next day were of no real concern.)

71                  The two pilots inspected the road thoroughly.  They measured its width with the odometer of a borrowed vehicle.  They actively considered possible obstacles, intersecting roads, and appropriate points to commence taxi-ing, ‘ground runs’ (at speed for take-off), and take-off.  They considered how to cope with an engine failure while taking-off.

72                  They considered that, subject to wind direction, with the temporary removal of some obstacles, the road could safely be used for take-off in a westerly direction but, as there was no head-wind (westerly) component to the wind prevailing on 28April 2004, it would not be appropriate to take-off on that day.

73                  The following morning was fine with a south-westerly breeze which would provide a good headwind component for a westwards take-off.  (A headwind assists an aircraft to become airborne.)  The two pilots inspected the town airstrip and considered it was still unusable.  Mr Boatman’s view, which Ms Kennedy accepted, was that it would remain unserviceable for some considerable time. 

74                  The pilots again inspected the Browne Street roadway.  They again considered it safe to take-off from the road. 

75                  Mr Boatman seemed to have been under the impression that he would need permission to do so from the resident officer of the South Australian government department which administers ‘national parks’ – Innamincka being in the vicinity of one.  Mr Agnew was such an officer.  Mr Boatman approached Mr Agnew and acquainted him with his intention to use the road for the take-offs of two aircraft.  Mr Agnew indicated he had no power to permit or forbid the proposed use of the road.  He conveyed to Mr Boatman the fact that he too was a qualified commercial pilot.  Mr Boatman gave Mr Agnew the impression that he was intending the road take-off as a ‘mercy flight’ necessary for the well-being of an elderly female passenger.  There is no suggestion that Mr Agnew expressed surprise at the proposed use of the road, far less counselled against it.  Mr Agnew referred Mr Boatman to another Innamincka resident, Mr Osborne, to obtain permission so that Mr Boatman could take down the fence at the airstrip to enable the two planes, which were parked at the airstrip, to be moved out onto the road.  Mr Osborne is a retired man who helps to look after the Innamincka airstrip as a community service.  He is known locally as the ‘controller’ of that aerodrome.  He had no flying qualifications.  Mr Agnew later watched the take-offs from just outside Mr Osborne’s house.

76                  Mr Boatman then spoke to Mr Osborne at the latter’s home on the south side of Browne Street, west of the airstrip and not far east of the crest in the road.  Neither man formed a favourable impression of the other.  Each has a forceful and self-confident manner.  Mr Osborne indicated that he wished to seek advice, by telephone, from a qualified ‘consultant’ who apparently had some responsibility for the airstrip.  Mr Boatman again suggested that he had an emergency situation with an elderly female passenger and he raised the concept of a mercy flight.  Mr Osborne suggested that the lady concerned could be evacuated by a resource company’s helicopter which was coming to take a rig worker to the nearby Moomba gas and oil field.  Mr Boatman left without comment and returned a short time later.  Mr Osborne then told him that it was illegal to take the fence down unless it was an emergency.  Mr Osborne had the impression that Mr Boatman told him he had ‘declared’ a mercy flight.  Mr Osborne did not ultimately either expressly give or refuse permission to take down and replace the fence.

77                  Mr Boatman decided to take the fence down and put in hand the requisite arrangements for this.

78                  It is clear that Mr Osborne thereafter considered Mr Boatman to have been rude and overbearing, and to have engaged in a subterfuge about the welfare of the elderly passenger.  Mr Osborne’s recollection of what transpired between the two men was more reliable than that of Mr Boatman, but it was not perfect.  Mr Osborne was offended and irritated.  Mr Boatman regarded him as officious.  Mr Osborne’s subsequent perceptions of the actual take-offs were, in my opinion, coloured by what had become his marked disapproval of Mr Boatman.

79                  It is clear that there was no emergency impelling the respondents to take-off when they did.  The need to leave Innamincka at that time did not rise higher than the convenience of their passengers and themselves and, perhaps, commercial considerations.  CASA submitted that Mr Boatman’s spurious introduction of the ‘mercy flight’ issue indicated an arrogant attitude on his part, and it was said that ‘[s]uch an attitude relevantly informs the seriousness of the risk that Mr Boatman was prepared to accept’.  In my view, unless an attitude produces conduct of the proscribed type it is simply irrelevant to the present question.  It is conceivable that a pilot’s attitude to relevant matters might touch on his/her fitness to hold a licence.  But that is a different enquiry entirely.  Mr Boatman’s ‘attitude’ may have conditioned his decision to use the road as an airstrip.  The question is whether thereby a serious and imminent risk to air safety was occasioned.

80                  More fundamentally, the reason – even an altruistic and life-saving one – for a flight does not affect whether it is attended by a serious and imminent risk to air safety.  If a brave pilot takes serious and imminent risks for his/her own life and substitutes such risks in place even of a certainty of death for passengers, say from a bushfire, there will still have been proscribed conduct under the Act, although CASA might well, of course, opt to take no action in such a case.  The converse is also true.  Even though there was nothing approaching a necessity for the respondents to take-off when they did, the question still remains:  given that there was some degree of elevation of the risks, how considerable was the overall risk?  In other words, how likely was it, as a matter of reasonable grounds for belief, that any of the elevated risks might have materialised?

81                  Mr Boatman had arranged on the previous evening, and again arranged on the morning in question, for people staying at the hotel to keep vehicles and people off the roadway.  Mr Osborne’s assessment was that, in any case, Innamincka was at that time isolated, the rain having made the roads into the village impassable.

(iii)       Ms Kennedy’s take-off

82                  Once the preparatory arrangements were made, both aircraft took-off.  Ms Kennedy took-off first.  As her aircraft approached Mr Osborne’s house from the east, he decided to cross the road.  He thought the aircraft was merely taxi-ing, but Ms Kennedy then had the aircraft under full power.  Mr Osborne said he ‘had to run to get out of the way’ but I think that is an exaggeration of the matter.  He may well have had a fright, but, provided he kept moving, there was no chance in reality of a collision between him and the aircraft.  Ms Kennedy was surprised and shocked to see him, but judged that there was no real chance of a collision with him, since she was sufficiently far away that, by the time her plane would reach the point of Mr Osborne’s crossing, he would be well out of the way.  Her assessment of the matter was, as

I have indicated, the correct one, in my opinion.  Mr Agnew who was nearby did not see fit to volunteer to CASA any concern about Mr Osborne’s position. 

83                  Mr Osborne said that he was told by a ‘National Parks representative’ that the aircraft would taxi down the road for warm-up before starting their take-off runs:  he was not expecting the plane he heard to make its take-off run at that point.

84                  The incident shows that there was some risk, despite the efforts made by Mr Boatman to have people kept off the road at crucial times, that the arrangements made would not prove adequate.  People do sometimes misunderstand things.  However, the intended take-offs were a singular event in a tiny and isolated settlement.  The people there, outback dwellers and travellers, were likely to have at least ordinary levels of commonsense, self-protective skills and faculties.  The chance that the arrangements would fail, though real, remained an outside chance.  It is not reasonable, in my view, to regard it as amounting to a serious and imminent risk to air safety.  The likelihood that the arrangements would fail cannot be regarded as increased because, so far as Mr Osborne was concerned, they did fail.  Before Mr Osborne crossed the road, the only reasonable assessment would have been that he would be one of the least likely people to do that, given his general sense of civic responsibility.  Ms Kennedy had embarked on her take-off run before Mr Osborne moved onto the road.  The position would be different if he had been on the road, say with his back to her, and she had decided nevertheless to accelerate, knowing that he was there.

85                  Mr Boatman had told Ms Kennedy that he had informed Mr Osborne of their intention to use the road for the take-offs and that they had organised people to block access to the roadway.  It is likely that the lack of harmony between Mr Boatman and Mr Osborne had also been communicated to her.  She thought Mr Osborne had gratuitously and deliberately sought to be on the roadway as she approached.

86                  There was, in my view, nothing more than an outside chance that, in fact, anyone would move onto the roadway or, once on it, would stay there, in a position of any danger from either aircraft.  The take-offs were unusual and it is likely that everyone in Innamincka well knew that they were about to occur.  Ms Kennedy and Mr Boatman would, in my opinion, have believed that any such chance was a remote one, even though in fact it eventuated.  In my view, that belief was the only reasonable one.

87                  Ms Kennedy’s take-off proceeded without further incident.  She became airborne some distance into the curved section of the road.  CASA raised concerns about a curving take-off run.  There is no evidence that there was any significant centrifugal force on the aircraft as she rounded the curve, and no evidence that such force was sufficient, or even close to sufficient, to cause the plane’s wheels to slip sideways during the run towards the point of lift-off.  The uncontradicted expert evidence of Mr MacGillivray (who, I foreshadow, was in general an impressive witness) was that such a slip would considerably precede the manifestation of any lack of structural capacity of the aircraft to withstand such centrifugal force.  In other words, the concern from the viewpoint of possible serious risk, was unfounded. 

88                  The respondents’ evidence comfortably established that take-offs around a curve are not uncommonly made in bush flying.  Mr Boatman had, as indicated, trained Ms Kennedy and many other pilots in appropriate techniques for this.  While it is true that Ms Kennedy had not executed such a manoeuvre with a planeload of passengers before, in the circumstances there was, in my opinion, no appreciable risk of mishap from the fact that Ms Kennedy traversed the curve in this road on that day. 

89                  The chance of a mishap was not significantly enlarged by the fact that there were passengers in the plane.  There was little chance of any competent pilot, let alone one of Ms Kennedy’s training and experience, which included frequent use of much narrower, informal bush strips, in paddocks for instance, being blown sideways so as to create any real risk of a collision with the posts.

90                  Originally, the other CASA criticism of her take-off was that Ms Kennedy had taken-off along the road although there was a blind crest at a point in the curved section of the road.  On examination of the objective evidence (photographs and video footage), it appears that Ms Kennedy was off the road before that crest.  In any case, the only real risk would have been of a vehicle or person approaching from the opposite direction.  On that day, at that location, having regard to the roads being impassable in the wet conditions and the steps taken by the respondents to keep people and vehicles off the roadways, there was scant chance that any such vehicle or person would approach.

91                  Mr Agnew, the only trained pilot known to have observed the take-offs, saw nothing amiss about the ‘profile’ (that is, the apparent path described by the aircraft as viewed at right angles to it) of Ms Kennedy’s take-off.  As indicated, the statement and other material he produced at CASA’s request does not suggest any concern about a possible collision with Mr Osborne.  He observed matters from the front of the Osborne residence close to where Mr Osborne must have crossed the road.

92                  Even taken together, in my view, the features of Ms Kennedy’s take-off which attracted CASA’s attention could not, in the light of all the evidence before me, reasonably be regarded as giving rise to any significant risk to air safety.

(iv)       Mr Boatman’s take-off

93                  Mr Boatman, in his aircraft, was made aware by Ms Kennedy by radio that a man had ‘intentionally’ walked across the road about 100 metres in front of her aircraft as it was moving on the ground.  His plan had been to take-off where Ms Kennedy had but, when he heard about the apparent obstructor, he decided to taxi past Mr Osborne’s house, to the top of the downslope before applying full power for his ground run.  He became airborne about 100 metres past the house.

94                  It is to be noted that Mr Boatman changed his take-off plan in the intended interests of safety – he did not want to be at-speed near where the pedestrian had crossed the road.  He evidently judged that any risks inherent in so doing – arising from a shorter distance to the trees, the narrow distance between the posts at one point, being on or low to the ground in an area where some relative aggregation of roadside onlookers might have been expected – were less significant than being near a pedestrian who, he had been told, had actually exhibited irresponsibility.  There is no reasonable basis for believing that his judgment in changing the plan was so awry that, of itself, the change contributed to a serious and imminent risk.  The risks consequent upon the new plan are elsewhere evaluated.

95                  Mr Agnew observed that the second aircraft approached more slowly and deemed it not to be at full power as it reached the crest.  That accords with Mr Boatman’s account.  Mr Agnew then lost sight of the aircraft for a short time.  He moved out onto the road and saw the aircraft again just before it reached the intersection with Mitchell Street.  As to what he then observed, he said:

‘At this point it sounded as if the engine power was reduced, the aircraft then deviated to the left, it sounded as though full power was then re-applied and the aircraft moved back to the centre and kept travelling along Browne Street before it became airborne and then went into a steep climb.  From where I was standing, I feared that the angle of climb and the speed of the aircraft at the time may lead to a stall.  I made a comment to people standing nearby about my concerns.’

Earlier, he had said:

‘… when it approached the intersection at the bottom of the hill it appeared to be out of control somewhat and I thought I heard the engine noise decrease as if to abort take off then increase to continue take off.  Once airborne the aircraft climbed steeply at relatively slow speed to clear the trees and then banked and levelled off’.

96                  As Mr Boatman pointed out, Mr Agnew was not in an advantageous position to judge such matters as the angle of climb or the aircraft’s speed.  Mr Boatman says he adopted the steepest of a number of orthodox and safe angles of climb.  He denies that his speed was low.

97                  In the light of CASA’s case, I interpolate that it is significant that Mr Agnew did not mention any concern over proximity of the wingtips of Mr Boatman’s plane to any of the posts at or near the Mitchell Street intersection.

(a)        Did Mr Boatman lose control of the plane?

98                  A striking feature of this case, as noted, was the unanimous evidence that there is little difficulty in controlling the path of a light aircraft during its ground run at speed preceding take-off, at least, I assume, in the absence of a really heavy cross-wind.  The respondents and their experts do not appear to have perceived that CASA might even have had any concern on this score until Mr South spelled it out.  That does not betoken any disregard for matters that might affect safety, but a perception based on experience that, whatever other risk may have been involved, involuntary movement off-course was not one.  There is no suggestion that such puffs of wind, including a cross-wind component, as might in reality have occurred during the ground run at the time of the take-offs, were in that category.  It would therefore have been an easy matter for a pilot of Mr Boatman’s experience to avoid involuntarily moving sideways off-course.  That consideration is relevant to an issue that was the subject of some dispute.  Mr Boatman gave evidence that he deliberately ‘cut the corner’ around the bend and moved from the centre of the roadway some moderate distance to his right, without any loss of control.  It is true that he did not give that account in his pre-trial affidavits.  Nevertheless, it is very unlikely that he would have lost control of the plane at that point, and in my view, it is not a reasonable surmise that he did so.  I accept his evidence on that matter.

99                  Mr Boatman’s account is that he applied full power as the aircraft came onto the downslope of the road and the plane became airborne well before Mitchell Street.  There was at that point a slight crosswind gust.  The lift off, he said:

‘… was a little slow, and the aircraft drifted slightly to the right with the crosswind, and this was quickly corrected and the nose of the aircraft was yawed to the left to maintain the centreline of the road.  The nose was lowered to gain speed and the aircraft settled briefly to touch down lightly in the middle of the road, then commenced to climb away.  I held the nose down to gain takeoff safety speed of 70 kts before climbing away.  The 13 steel [posts] posed no problem as they were well away from the centreline of this strip.

… The road signs at the intersection posed no problem as we were well above those and flying under perfect control in perfect weather conditions at this stage.  The aircraft was not held in close proximity to the road …

… I always teach all of my students to lower the aircraft nose after takeoff and accelerate to take off safety speed before entering the climb.  This is far safer as the aircraft has plenty of inertia to handle a severe windshear or downdraft.  I regularly find pilots whilst conducting my advanced safe handling course dragging the aircraft off ground at 50 kts and straight into a climb.  This is a very unsafe manoeuvre, especially in a loaded aircraft and I am surprised at Mr South [the CASA officer who proffered expert evidence] claiming to be an expert pilot even suggesting this as he has done ….’

100               The photographs and video film footage in evidence confirm that the aircraft was airborne before Mitchell Street.

101               I accept that Mr Boatman’s account is the more accurate if, on a proper understanding, Mr Agnew’s and his version differ:  the wind was from the southwest; the lateral component of a puff would therefore have tended to push the plane to the pilot’s (and Mr Agnew’s) right.  Mr Osborne saw the plane move to its right and then ‘back to the middle of the road’.  Mr Agnew, it seems, saw the movement of the plane to the left as part of its response to Mr Boatman’s deliberate corrective yaw of the plane.  Such a corrective yaw is itself apparently an orthodox manoeuvre.

(b)        Mr Boatman’s low clearance over posts

102               It appears from photographs that two posts at the intersection of Browne and Mitchell Streets measured as 12.5 metres apart protruded from the ground not more than about 1.2 metres in height, giving a margin of at least 0.6 metres under the wings, if the plane’s wheels were at the same ground level and the plane was on the ground between the posts.  It flew over them in fact.  However, there was likely additional clearance: the made surface of the road was likely higher than the shoulder.  Although the road sloped up to the centre by some imprecisely measured degree from ground level at the respective base of each post, that camber may have reduced such clearance, but equally, depending on the actual heights of the points of the roadway in contact with the wheels, may not have done so.  It seems from measurements made by Mr Pilchiewicz, a CASA aerodrome inspector, that for most of its relevant length the road was cambered with slopes measuring 7.5 to 10 percent.

103               Doing my best with the evidence, I think that the aircraft probably cleared the post in question by about 1.5 metres (5 feet).  Given the light winds prevailing, there is no evidence to suggest that there was a real risk either that Mr Boatman could not clear it as he intended to do, or of a wind gust sufficient to tilt the plane by the considerable degree necessary to force the wing tip into contact with the post.  It seems clear from the objective material that Mr Boatman flew over one of the posts at the narrow point emphasised by counsel for CASA, not through the gap between them.

(c)        Mr Boatman holding the plane down

104               It appears that Mr Boatman, though he later denied it, had first explained to CASA that the low flying along the road was undertaken to wave goodbye to the party’s hosts at the hotel and/or to allow photographs of the unusual occurrence to be taken by people at, or in the vicinity of, the hotel.  He told Mr Barber, as they were flying low along the road that: ‘our helpers [presumably with traffic control] want to get some photos’.  I do not accept Mr Boatman’s denial.

105               Counsel for CASA made the point that, had the angle of the wing of Mr Boatman’s aircraft ‘deflected (with a rolling moment about the longitudinal axis) the wing would not have cleared’ a low post it passed over.  Mr Boatman was a pilot of very great and highly relevant experience, old and experienced enough not to believe in his own immortality even if, as CASA would have it, he had a degree of arrogance, was not above embroidering the truth to get his own way, and was in a hurry to get moving.  He had a plane load of passengers, one of whom had paid a commercial fare.  If the plane were at any serious risk of striking objects such as steel posts with a diameter of, say, 60 mm firmly embedded in the ground, it was obvious that serious injury would likely befall himself and his passengers.  Objectively, he had special motivation to be taking great care in the interests of safety as he perceived it.  It is shown beyond doubt that Mr Boatman inspected the area, gauged its measurements and decided which, if any, posts presented a serious risk.  In the result, he had one post removed.  It is clear that, after close inspection, he must have judged that the chance that there would be an uncontrolled and uncontrollable dip of the wing forced upon him sufficient to strike one of the remaining posts at the narrowest point along the road, was remote.  It seems to me too that that chance was, as I have explained, remote. There is, in my view, no reasonable ground for thinking that, in this respect, Mr Boatman’s judgment was at fault.  He had the requisite experience, knowledge of the actually prevailing circumstances as to weather, wing height, the capacities and limitations of the aircraft and his own capacities and limitations, and the utmost motivation to make that judgment correctly. 

106               It must be accepted that there was some elevation of the risk of an accident in the course he chose.  But I am unpersuaded that there is reasonable ground, despite resort to surmise, to believe that there was any really significant risk of an accident actually occurring.

107               There was a degree of unorthodoxy in Mr Boatman’s holding the plane down but, for reasons explained by Mr MacGillivray and Mr Boatman, any added degree of risk was not actually significant.  The plane’s momentum contained energy that was convertible by the pilot into a number of evasive manoeuvres that might have been taken if any emergency presented itself.  In short, the horizontal speed of the aircraft could be converted into gaining height. 

108               The reasons for the manoeuvre do not inform the level of risk it entailed.

(v)        Evidence of lay witnesses

109               Mr Osborne’s reactions to, and qualitative assessments of, what occurred in relation to the second take-off are, in my view, as I have foreshadowed, unreliable though honestly made.  He had been treated rudely by Mr Boatman; he regarded Mr Boatman as having been duplicitous and reckless in the matter of a ‘mercy flight’.  In my opinion, he formed a consequent view that Mr Boatman was a rule-breaker and a menace.  He was predisposed to see and to find dangers in what occurred in relation to the take-offs.  He was no expert and no expert observer.  His good faith is, however, beyond doubt.  Mr Boatman dealt with Mr Osborne in such a way as not to induce respect or confidence.

110               While it is not a matter of great weight, no occupant of either aircraft has expressed any concern for his or her safety.  Ms Sheldon, a passenger in Ms Kennedy’s aircraft, aged 69, saw Mr Osborne ‘on the right hand side of the aircraft walking (not, I interpolate, running) away from us’ very soon after Ms Kennedy marked his presence by swearing.  Despite saying that she felt that ‘the actions of this man were extremely dangerous’, Ms Sheldon said she ‘did not feel at risk at all’ in relation to the take-off or flight.  She apparently had no prior connection with Mr Boatman or Ms Kennedy.

111               Mr Giblin, a passenger, in the aircraft piloted by Mr Boatman who was a friend of his, was apparently undisturbed by the take-off.  He merely noticed that the climb was ‘a little steeper’ – presumably meaning a little steeper than normal.  He did not think that anything was wrong.

112               Mr Atkinson, another witness present at Innamincka, confirmed that his vehicular access into the ‘town’ had been blocked on account of the then impending take-offs.  He was on the south side of Browne Street.  He said, in a statement obtained by CASA, that the second aircraft:

‘… travelled across the road to the left and appeared to be coming straight towards us so I turned and started running in a southerly direction as I thought the pilot had lost control … [o]ther people … also ran.’

The aircraft then travelled across to the other side of the road after crossing Mitchell Street.  The left hand wing narrowly missed a sign post on the southern side of Browne Street on the intersection.  There are a number of sign posts around this intersection.

When the aircraft had gone past, I stopped running and watched it as it travelled down Browne Street.  I saw it become airborne and then seemed to settle down before I lost sight of it behind the dongas.  The next thing, I saw the aircraft as it climbed steeply above the Cooper Creek area beyond the T intersection at West Terrace.  It banked to the north and continued the turn to head in an easterly direction.’

113               It is difficult to know what to make of this.  Mr Atkinson did not give evidence and Mr Boatman was not cross-examined about it.  It may be that Mr Atkinson saw the aircraft as it concluded rounding the curve, still in the centre of the road but facing in a generally south-western direction.  It may also be that Mr Atkinson’s recollection confuses the order of events and that he saw the aircraft in its yawed position, apparently, but not actually, flying towards him.  Mr Atkinson was not tested and CASA placed no real reliance on his statement before me.  So far as I can tell from all the material, there is no reasonable ground for belief that Mr Atkinson’s fears were at all well-founded.

114               Ms Nicholls, an Innamincka resident, who was some distance to the north from Browne Street, saw the second aircraft ‘veer from the crown of the road.  I further saw the wheel closest to myself travel off the shoulder of the road for a short distance’.  With the exception of the suggestion that the wheel travelled past the shoulder of the road to its right – which would have involved a very considerable deviation – her statement largely supports Mr Boatman’s account of matters.  She did not give evidence before me but I think it very unlikely that the wheel did travel ‘off the shoulder’ of the road, if by ‘shoulder’ Ms Nicholls meant what is usually meant by that term. 

115               Mr Boatman’s account is supported by that of Mr Walden in his statement:

‘Part way down the hill and before the intersection, the aircraft moved from the centre of the road over to the right as it was heading down and I was worried it might run off the road.  The aircraft then moved back towards the middle.’

116               Another witness, Mr Anderson, expressed concern in his statement but, on analysis, his statement is quite consistent with a lay person’s impression of what Mr Boatman describes using the language of a pilot.  Again, the statement was untested in evidence before me.

(vi)       The expert evidence

(a)        Mr South

117               CASA’s case was founded on the evidence of Mr South, a CASA officer.  Mr South holds a number of pilot licences and has impressive experience, including approximately 4 000 hours flying time in various aircraft, and qualifications in safety auditing and investigation.

118               Mr South made the following points:

·                    the two aircraft were involved in a passenger-carrying commercial operation;

·                    the legislation puts responsibilities on Mr Boatman as the holder of the relevant Air Operation Certificate (AOC) and, as the Chief Pilot, and on Ms Kennedy as the ‘line pilot’;

·                    public roads have been used for take-off and landing of aircraft in medical emergencies and for humanitarian relief, but not by an operator engaged in passenger carrying operations;

·                    in his opinion, the circumstances at Innamincka made it difficult to understand ‘why a pilot would consider taking off from this area, with or without passengers on board’;

·                    CAAP 92-1(1) advises that ‘[a] pilot should not use a landing area or have an aeroplane engine running unless the aeroplane is clear of all persons, animals, vehicles or other obstructions’, and ‘[a] pilot should not use a landing area without taking all reasonable steps to ensure the physical characteristics and dimensions are satisfactory’;

·                    Stawell Aviation’s own Operations Manual required:

‘Before flying into and out of an Aircraft Landing Area, the Pilot in Command will:

…

(b)       Ensure that the dimensions, gradients and surface are appropriate to the flight ie. ensure that the width and the dimensions of the approach and take-off areas at both ends shall not be less, and the approach and take-off climb gradients at both ends shall not be steeper, than depicted in the current issue of CAAP 92-1.’;

·                    he concluded, as to this, that ‘in essence the operator’s instructions, as stated above, are that the landing area should comply with CAAP 92-1’;

·                    if there were to be a departure from this, ‘the AOC holder should formulate a substantive safety case’ outlining ‘how risk is mitigated and safety is assured’ ;

·                    the roadway itself was at or close to the recommended width for a ‘runway’ but there was no viable ‘runway strip’ beside it – this reduced room for pilot error or recovery from any emergency such as tyre deflation;

·                    there were obstructions in what CAAP 92-1(1) envisaged as the ‘runway strip’ area, including rocks, stones, ruts and in particular, 60mm wide steel pipe posts or ‘bollards’ (as CASA representatives called them.  These, I interpolate, were measured as 1.8 metres high from ground level, but their heights relative to the central part of the made roadway appear to have varied and were not measured);

·                    the various obstructions and in particular the steel posts could do significant damage to an aircraft taxi-ing, on a take-off run, or in flight (including during recovery from a post-take-off emergency);

·                    Mr South’s information was that, at some points, ‘Mr Boatman had to manoeuvre his aircraft at high speed through the gap between these obstructions, a gap of 12.5 metres for an aircraft with a wingspan of 10.97 metres.  This would leave a gap of only 1.53 metres or 0.76 metres each side of the aircraft’;

·                    the purpose of the CAAP-recommended runway strip is that it be in a condition to minimise any damage to an aeroplane ‘which may run off a runway during take-off or landing’;

·                    risks during take-off would include: incorrect pilot technique, pilot incapacity, sudden tyre deflation, undercarriage failure, collision with animals, sudden runway obstruction, cross-wind gusts, and partial and complete engine failure’;

·                    in general, to take-off from a roadway with ‘significant obstacles and hazards located in very close proximity to the take off path’ would not be ‘consistent with’ a pilot or chief pilot’s responsibilities for safety.  (I interpolate that in no sense is any legal duty to insure safety cast on a pilot, nor could it sensibly be so cast);

·                    the available take-off distances fixed by photo records and by measurements carried out by Mr Pilichiewicz, an aerodrome inspector employed by CASA, were less than those Mr Boatman or Ms Kennedy had suggested were necessary;

·                    to take-off or plan a take-off around a curved runway was risky;

·                    there was no justification for Mr Boatman distinguishing between some of the posts or obstacles and others.  (Mr Boatman had removed a tall road sign he considered hazardous.);

·                    the non-frangible obstacles in the area beside the road were an unusual hazard;

·                    unexpected entry onto a public road by a member of the public should have been considered possible;

·                    in a take-off abort  scenario, the landing distance on a down slope, as on the western end of Browne Street, would be longer than usual; this had apparently been overlooked by both pilots;

·                    Ms Kennedy’s take-off around the curve ‘would subject the aircraft’s undercarriage…to significant side loads’.  Such a take-off is ‘an untested, unapproved manoeuvre for which she would not have been trained’;

·                    Mr Boatman was ‘having to either fly at low level and high speed altitude or ground run at high speed’ at a point at the Mitchell Street intersection and through the gap between posts on opposite sides of the road which was only 12.5 metres wide.  His plane’s wingspan was 10.97 metres.  Thus, he had a ‘safety margin of only 1.52 metres or 0.76 metres from each obstacle’;

·                    Mr Boatman held his aircraft down at very low height for a considerable distance over the available road. This was not the ‘normal take off’ profile for the relevant kind of aeroplane;

·                    that manoeuvre enhanced the risk of collision with various ‘obstacles’, including buildings and spectators not far from the line followed by the plane;

·                    it would also have given him fewer options to select a place to land off-field in the event of a post-take-off emergency such as engine failure;

·                    Mr Boatman’s decision to use the roadway at all, and his take-off profile, showed a failure of his responsibilities to both act for the safety of his passengers and was ‘a very poor demonstration of airmanship’;

·                    neither pilot:

o                    measured up to the proper responsibilities of a Pilot in Command;

o                    had as his/her ‘primary focus’ their ‘duty of care to their passengers’; and

o                    took all reasonable precautions for take-offs.

Both ‘exposed [themselves] and their passengers to an unacceptable level of safety reduction’; and

·                    the level of safety reduction ‘should not be underestimated because they were lucky enough to get away with it on this occasion’.

119               It appeared from the cross-examination that the following matters were the case or represented Mr South’s opinions:

·                    Mr South had had no specialised bush flying training;

·                    roads have been used as runways in emergency situations;

·                    some ‘runway strips’ (the areas beside the runway) are themselves soft (e.g. sandy or soft when wet) and hazardous for aircraft travelling at significant ground speed;

·                    the purpose of the ‘runway strip’ area is not to cause no harm but to ensure that any damage is minimised;

·                    he knew of no instance where a qualified pilot had involuntarily run off a runway and onto the runway strip area;

·                    the risk of that is ‘very controllable’;

·                    tyre blow-outs while taking-off (as distinct from landing) are practically unknown;

·                    single engine planes (as these were) are less inclined to veer on engine failure than twin engine planes;

·                    the mere fact that an airstrip does not comply with CAAP 92-1(1) would not mean that it is unsafe;

·                    runways with blind crests are not unknown;

·                    the planes took off in circumstances that satisfied CAR 92(1)(d) (see [12] above);

·                    flying at airports close to roads and buildings is not uncommon;

·                    in usual operations there are often objects immediately adjacent to runways that it would be disastrous for a plane to hit;

·                    taking off at different airports involves different levels of risks, and the key question is not whether the risk is elevated per se but whether it is elevated to a level that makes it unsafe to take-off;

·                    the safety level does not alter according to the purpose for which the pilot executes the take-off but with the features of the take-off;

·                    the technique employed by Mr Boatman of increasing speed low to the ground and then taking-off at the (steep) best angle of climb can be safe;

·                    lay people are typically used for crowd control at air shows;

·                    specialised training in taking-off from bush strips would enhance a pilot’s ability to cope with taking-off from the road at Innamincka;

·                    as a practical matter, there was more than the necessary length of road available for each take-off; and

·                    some accidents are the result of near certainties, some of serious and imminent risks and some of outside chances eventuating.

Overall, Mr South remained of the view that there had been a ‘very much increased risk of a crash’ with the take-offs in question.

120               Mr South was in the unenviable position of trying to assess the take-offs against the then new criteria of a ‘serious and imminent risk to air safety’, without the benefit of any full judicial exegesis of that term.  It seems fair to say, from the whole of Mr South’s evidence, that, in his view, whereas both respondents took risks elevated beyond ‘normal’ and recommended levels, he was unable confidently to assert a view that the conduct of either of them constituted a serious and imminent risk to air safety.  Mr South was an honest and fair witness but, to the extent that there was conflict between them, the evidence of Mr MacGillivray was, in my opinion, decisively more cogent.  He had more relevant experience and, in some important respects, knowledge. 

121               Some matters which were of relevant concern to CASA in the light of Mr South’s evidence seem to have rather evaporated, it is fair to say, in the light of Mr MacGillivray’s unanswered evidence.  ‘Stop-start distances’ are an instance:  it appears that there are many licensed aerodromes where there is enough distance available to take-off but not enough to stop again should there be some emergency.  The key question, it appears, is whether, one way or another, including by take-off and landing elsewhere, the danger might be averted.  Mr Boatman, who knew the Innamincka area, made the point without contradiction that there was ample room to land to the north and south of the roadway and the adjacent miniscule ‘township’ areas.

(b)        Mr MacGillivray

122               Mr MacGillivray was an aeronautical engineer and pilot with a broad and deep experience of aviation in Australia extending over 38 years.   He had had over 10 000 hours of flying experience including considerable experience in outback operations and operations out of bush airstrips.

123               In his view, CAAP 92-1(1) being merely advisory, CAR reg 92(1)(d) left the determination of what is an acceptable aeroplane landing area to the judgment of the pilot in command, after due consideration of all prevailing circumstances.  He took the view that a pilot should consider:

·                    whether the available take-off distance is adequate;

·                    whether the place being considered will allow a safe take-off generally;

·                    aircraft weight and balance in relation to specified limits;

·                    serviceability of the aircraft; and

·                    the pilot’s experience and competence to take-off from a place that does not meet the requirements for a normal aerodrome.

124               Viewing the matter as one of actual safety rather than the ‘very conservative’ take-off requirements specified for the planes in question, and considering that both pilots had used the rolling start technique (i.e. taxi-ing and then, with the plane in motion, powering up for the ‘ground run’), both pilots had enough take-off distance.

125               Furthermore, light single-engine aircraft, the (air) stall speed, well exceeded by both pilots, justified the view that planning to rely on an ‘off airport’ emergency landing, if necessary, was an acceptable risk.  There was no need for the planes to be able to come to a stop in the runway distance available.

126               At Innamincka there was clear ground to the west of the trees at the very end of Browne Street that could enable a forced landing straight ahead.  Such a situation is common at Australian airports.

127               Experience shows that ordinary, responsible people can be relied on, if briefed, to keep a runway area clear of crowds.

128               As to the flight manuals, there was at the time, for reasons of transition in legislative requirements, no legislatively required Flight Manual for the plane flown by Mr Boatman.  Likewise, the legislatively required Flight Manual for Ms Kennedy’s plane had to do with design elements rather than such matters as landing areas.

129               Mr MacGillivray considered that, given their aircraft, the weights they were carrying and the conditions of the day, each respondent ‘demonstrated a level of skill and judgement as would be expected of commercial pilots exercising the privilege of their licences’.  He considered that their conduct had not contributed or resulted in a serious and imminent risk to air safety.

130               As a CASA delegate authorised to redesign certain aspects of aeroplanes, he had no concern about the side load on the aircraft in relation to rounding the curve in Browne Street.  Taking-off around a curve is commonly done.

131               Mr Boatman’s take-off, using the ‘best angle of climb’, a recognised concept, allowed a safe margin above stall speed.

132               In his view any pilot experienced in operating from bush strips could safely take-off from the Innamincka road in question.

133               In cross-examination, he said that:

·                    the CAAP 92(1) recommendation for a ‘runway strip’ is a prudent one in the interests of safety;

·                    it was very unlikely that Mr Boatman had been blown to the right side of the road as the aircraft concerned are very directionally controllable.  He believed Mr Boatman had veered to the right as a matter of deliberate choice;

·                    to start a take-off run without full visibility over the rest of the runway involves an added element of risk;

·                    likewise where there are obstructions in what would be the ‘runway strip’ area;

·                    there would have been a serious and imminent risk to air safety if Mr Osborne had stayed on the road;

·                    to fly an 11 metre wing-span aircraft ‘through’ a 12.5 metre gap would be inherently dangerous, and it would still be dangerous but less so, to fly through a 15 metre gap;

·                    it would be unnecessary, though not hazardous, to fly low with passengers so that photos could be taken if the plane accelerating, gaining kinetic energy and had an adequate margin to climb, even though that cut the margin for error;

·                    by Mr Boatman’s staying low, there was a risk of collision with the trees if there was pilot error in misjudging their distance.  (I interpolate that there was, however, no evidence that as such misjudgment was at all likely);

·                    many landing areas in Australia have no ‘runway strip’ at all and there are obstacles right beside them;

·                    he had never had to use a ‘runway strip’; and

·                    the presence of the posts did not increase the level of risk to an unsafe level.

(c)        Mr Foster

134               Mr Foster is also a highly qualified pilot, air operator and flying instructor, including as a CASA-approved testing officer for student pilots.

135               His evidence was also helpful to the respondents, and largely confirmatory of that of Mr MacGillivray.  However, I thought he was less objective than Mr MacGillivray and somewhat over inclined to adopt suggestions helpful to the respondents.  In my view it is sounder to rely on Mr MacGillivray’s evidence.

(vii)      Other aspects of the respondent’s evidence

136               Some of the respondents’ evidence proceeded from an initial misunderstanding of CASA’s case, but some did not.  The misunderstanding was that CASA was more concerned with the trees at the Western end of Browne Street and with the proximity of buildings to the sides of it, and with the curve in the street, than with other things.  The respondents showed that, not infrequently, Australian airstrips have landscape and other features that might present comparable degrees of difficulty if an emergency landing should be necessary.  Take-offs from curved strips are, it seems, not uncommon in bush flying of light aircraft.

137               But CASA was concerned also with other matters – the steel posts; the narrowness of the road between them (especially at one point); the prospect that people might move onto the road; the blind crest, and so on.  CASA was also concerned with the accumulation of the risks inherent in such allegedly hazardous circumstances or the risks that might be comparable with other, well-accepted airstrips.  Such other matters and such accumulation did, as I have indicated, elevate the overall levels of risks in the take-offs.  However, in the actual circumstances and given the training and experience of the two pilots concerned and the precautions they took and arranged, there are not reasonable grounds for considering that the resultant level of risk to air safety was ‘serious and imminent’.

(viii)     The documentary evidence

(a)        Stawell Manual

138               Regulation 215 of the CAR provides: 

‘(2)      … The operator must ensure that the operations manual contains such information, procedures and instructions with respect to the flight operations of all types of aircraft operated by the operator as are necessary to ensure the safe conduct of the flight operations (other than information, procedures or instructions that are set out in other documents required to be carried in the aircraft in pursuance of these Regulations). 

            Penalty: 25 penalty units.

…

(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.’

 

139               Paragraph 2(b) of s A15.2 of Stawell Aviation Services’ Operations Manual is in the following terms:

‘Before flying into and out of, an Aircraft Landing Area, the Pilot in Command will:

…

(b)Ensure that the dimensions, gradients and surface are appropriate for the flight i.e. ensure that the width and dimensions of the approach and takeoff areas at both ends shall not be less, and the approach and takeoff climb gradients at both ends shall not be steeper, than depicted in the current issue of CAAP 92-1.’

140               CASA submitted:

‘While not entirely clear, the width and dimensions of the approach and takeoff areas directly correlate to the width of the runway and the runway strip, see figure 2A of the CAAP, as follows:

Figure 2A - Single engined and Centre-Line

Thrust Aeroplanes not exceeding 2000 kg MTOW (day operations)

On this basis, whilst the CAAP is usually an advisory publication having no legislative force or effect, the fact that it is called up by Stawell Aviation’s Manual means that it does have mandatory force.’

141               There is no need to determine this matter to finality but whether there was any breach of reg 215(9) may be a matter of some doubt.  Mr MacGillivray did not understand that to be the case.

142               Stawell Aviation’s Operations Manual seems to be concerned with the width and dimensions of the ‘approach and take-off area[s]’.  I understand these to be the areas before and beyond the ends of the runway strip.  The requirement is that in the rhomboidal area shown in Figure 2A, the parallel sides of which are 900 metres apart and which have lengths respectively of 30 metres and 150 metres, there shall be no objects above the ground with which an aircraft, taking off on a gradient rising 5 metres in 100 metres, could collide.  It is likely that the area at the western end of roadway did not comply with this standard.  However that must be seen in light of aviation practice in Australia.  There was undisputed evidence that a number of formally established, and often used, aerodromes do not have the clear areas and ground surfaces envisaged by CAAP 92. 

143               An earlier version of the Manual was written by Mr MacGillivray for Stawell Aviation.  Whether, in the context of such aviation practice, it was even subjectively intended to be read as, absent that context, its objective terms might suggest, is a matter of some doubt.

144               In any event, at worst, non-compliance with the Manual might indicate a regulatory breach of some relevance to the question at issue in this case, but which needs assessment in the light of all of the material.  In my view, taken alone or in concert with other matters, it provides no reasonable ground for belief that there was a ‘serious and imminent’ risk to air safety.

(b)        Photos/Videos

145               Some limited objective assistance was available from photographs and a video film footage taken at the time.  Much, however, remains in the eye of the beholder.  The response by Mr Osborne caught on the videotape was, objectively, exaggerated.

(ix)       Ballarat issue

146               On 20 March 2004at Ballarat, Mr Boatman flew an ultra light plane with a passenger, an official of the local Aero Club, with a door off, so that the passenger could take photographs.  He also executed some low level passes and flew ‘in ground effect’ (that is, very low) for some distance.

147               CASA ultimately submitted:

‘Whilst the flying at Ballarat may not, of itself, be sufficient to constitute a breach of s 30DB, the incident is significant in the present context as providing some basis for concluding that Mr Boatman (a) is a risk taker especially involving flying at low levels, (b) will fly an aircraft in an unconventional manner and for inappropriate reasons (because he is in a hurry to catch a bus), and (c) will put his commercial and personal interests ahead of safety considerations (eg by acceding to the wishes of a passenger seeking that “extra photo” or some other benefit) when the circumstances demand that he [should not do] that.’

148               If there is any truth in any of this it might, possibly, go to Mr Boatman’s fitness to hold a licence, an issue not before me.  I did not find the events at Ballarat helpful as background to the events at Innamincka.  They did not show that Mr Boatman had knowingly taken a serious risk on another occasion.

(x)        Previous powerlines accident

149               In November 2000, Mr Boatman had an accident.  While flying with a student pilot during a low flying exercise, in a rural area, the aircraft hit overhead power lines and crashed.  Both Mr Boatman and the other pilot were seriously injured.  Power lines present problems of visibility for pilots of light aircraft.  Mr Boatman knew the area and mistakenly believed that there were no power lines where he was flying.  CASA submitted:

‘This evidence shows that Mr Boatman will not concede and cannot appreciate that he made an egregious mistake as to the location of the power lines on the above occasion.  He has not accepted any responsibility for that incident, but instead holds a self-perception not only of the unassailability of his own flying skills and abilities but also as to the rectitude of his own beliefs (in never having a lapse).  Though not conduct which is specified in the suspension notice, it is illustrative of Mr Boatman’s attitude and approach to matters of safety.  It is an attitude and approach that is inimical to air safety, influencing, as it undoubtedly did, Mr Boatman’s belief that his take off at Innamincka was completely without risk.’

150               As indicated elsewhere, Mr Boatman’s ‘attitude and approach’ to questions of safety are not, in themselves, ‘conduct’ within the meaning of s 30DB.  Moreover, there is no satisfactory basis for attributing to Mr Boatman any belief that his take-off at Innamincka was ‘completely without risk’.  Mr Boatman put effort and thought into an assessment of what the risks were and how they might be managed.  He had the view that his take-off was without readily manageable risk given his capacities.  No basis has been shown, despite possible regulatory breaches and some elevation of the risks, and the unorthodoxy of taking-off along a roadway, for viewing that assessment as wrong.

(xi)       Mercy Flights

151               In certain strictly defined emergency circumstances, regulatory breaches will apparently, at least de facto, be excused in the case of a ‘mercy flight’.  Such flights are not however, under the instructions governing them, to be undertaken when, among other things, ‘the crew and other occupants of the aircraft involved will be exposed to undue hazard’.  This seems to underline that, in the Australian flying context, the seriousness of a risk ought not be regarded as affected by the reason the risk is undertaken or encountered.  Whether Mr Boatman committed any regulatory breach by asserting the possibility of a mercy flight when none existed is not a matter before me.

CONCLUSION

152               Accordingly, in my opinion there is not reason to believe that either respondent engaged in conduct that constituted, contributed to resulted in a serious and imminent risk to air safety.

Costs

153               The applicant seeks to be relieved of any liability as to costs before the Full Court’s second judgment of 24 December 2004.

154               The respondents seek such costs.  They also submit that all costs should be ordered to be paid on a solicitor-client basis.

155               It is by no means clear to me that there is any substantial amount of costs unaccounted for by the costs orders made by the Full Court.  If there is, I see no adequate reason why the usual rule should not also apply to such costs.  That view is reinforced by the consideration that a short and minor issue, the first respondent’s medical condition, was to no ultimate point raised by the applicant.

156               On the other hand, no adequate basis is shown for awarding costs on other than the usual party and party basis.  CASA’s case was fairly arguable, notwithstanding the choice (probably a considered one) by its expert Mr South not to express his own view on the ultimate issue for the Court.  There was material from which a respectable argument could be and was put by CASA, notwithstanding that I have rejected it.

157               Further, CASA and Mr South put forward their positions in good faith in intended pursuit of the public interest.  In a protective context, the Court should not be too quick to discourage public authorities from acting, even though the outcome might be uncertain.

Orders

1.                  The period in which any notice of appeal may be filed is extended until 19 May 2006, being 21 days from the date of publication for the reasons for judgment herein.

2.                  The applicant is to pay the respondents’ costs including any costs incurred before 24 December 2004 which are not the subject of previous final orders of the Court, to be agreed or assessed.

I certify that the preceding one hundred and fifty seven (157) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Madgwick.

Associate:

Dated:              28 April 2006

Counsel for the Applicant:	Mr P Brereton SC/Mr I Harvey
Solicitor for the Applicant:	Office of Legal Counsel, Civil Aviation and Safety Authority
Counsel for the Respondents:	Mr H J Langmead SC/Mr P W Lithgow
Solicitor for the Respondents:	Grundy Maitland & Co
Date of Hearing:	28 February, 1, 2, 10 and 17 March 2005
Date of Judgment:	28 April 2006

APPENDIX

 

 

CIVIL AVIATION AUTHORITY

CIVIL AVIATION

ADVISORY PUBLICATION

Date: July 1992 No: 92-1(1)

SUBJECT: GUIDELINES FOR AEROPLANE LANDING AREAS

IMPORTANT

The information in this publication is advisory only. There is no legal requirement to observe the details set out in this publication. The Civil Aviation Regulations set out the legal requirements that must be complied with in relation to the subject matter of this publication. There may be a number of ways of ensuring that the requirements of the Civil Aviation Regulations are met. This publication sets out methods that may be used and which experience has shown should, in the majority of cases, ensure compliance with the Regulations.

…

PURPOSE

Civil Aviation Regulation 92 (1) states that: “An aircraft shall not land at, or take-off from, any place unless: ...(d) the place....is suitable for use as an aerodrome for the purposes of the landing and taking-off of aircraft; and, having regard to all the circumstances of the proposed landing or take-off (including the prevailing weather conditions), the aircraft can land at, or take-off from, the place in safety.” 

 

Regulation 92 (1) does not specify the method of determining which “circumstances”, other than the prevailing weather conditions, should be considered in any particular case. These matters are the responsibility of the pilot in command and, in some circumstances, are shared with the aircraft operator.

 

These guidelines set out factors that may be used to determine the suitability of a place for the landing and taking-off of aeroplanes. Experience has shown that, in most cases, application of these guidelines will enable a take-off or landing to be completed safely, provided that the pilot in command:

(a)   has sound piloting skills; and

(b)   displays sound airmanship.

…

1 - DEFINITIONS

1.    In these guidelines, unless the contrary is stated:

“clearway” means an area in which there are no obstacles penetrating a slope of 2.5% rising from the end of the runway over a width of 45m;

…

“fly-over area” means a portion of ground adjacent to the runway strip which is free of tree stumps, large rocks or stones, fencing, wire and any other obstacles above ground but may include ditches or drains below ground level;

“landing area” (LA) means an area of ground suitable for the conduct of takeoff and landing and associated aeroplane operations under specific conditions;

“lateral transitional slope” means a desirable area around all LA's which provides greater lateral clearance in the take-off and landing area and may reduce wind-shear when the runway is situated near tall objects such as trees and buildings. The dimensions of a suitable lateral transitional slope are shown in the following diagram;

 

Figure 1 - Transitional Slope

 

“obstacle free area” means there should be no wires or any other form of obstacles above the approach and takeoff areas, runways, runway strips, flyover areas or water channels;

“runway” means that portion of the landing area which is intended to be used for the landing or take-off of aeroplanes;

“runway strip” means a portion of ground between the runway and fly-over area which is in a condition that ensures minimal damage to an aeroplane which may run off a runway during take-off or landing;

…

2 - CONVERSION TABLE

2. Landing area gradients and splays expressed as a percentage, in accordance with ICAO practice, may be converted into ratios or angles using the following table:

 

…

4 - WHICH TYPES OF OPERATIONS MAY BE CONDUCTED FROM A LANDING AREA?

4. Aeroplanes engaged in the following operations may use a landing area:

(a)   private;

(b)   aerial work—excluding student solo flying and student dual flying prior to successful completion of the General Flying Progress Test; and

(c)   charter.

5 - RECOMMENDED MINIMUM PHYSICAL CHARACTERISTICS OF LANDING AREAS AND WATER ALIGHTING AREAS

5.1  Runway Width. For other than agricultural operations, a minimum width of 15 metres is recommended although aeroplanes with a MTOW below 2000kg can be operated safely on runways as narrow as 10 metres provided there is no or only light cross-wind. For agricultural operations, a 10 metre wide runway is the recommended minimum.

 

5.2  Runway Length. For other than agricultural operations by day, a runway length equal to or greater than that specified in the aeroplane's flight manual or approved performance charts or certificate of airworthiness, for the prevailing conditions is required (increasing the length by an additional 15% is recommended when unfactored data is used). For agricultural day operations, the minimum runway length is the greater of 75% of the take-off distance specified in the aeroplane's flight manual or approved performance chart for the prevailing conditions with the balance as clearway or the landing distance so specified.

5.3  Longitudinal Slope. The longitudinal slope between the runway ends should not exceed 2%, except that 2.86% is acceptable on part of the runway so long as the change of slope is gradual. For agricultural operations, the slope should not exceed 12.5% for day and 2% for night operations: where the overall slope exceeds 2% the runway should only be used for one-way operations — downhill for take-off and uphill for landing.

5.4  Transverse Slope. The transverse slope between the extreme edges of the runway strip should not exceed 2.5% or 12.5% upward slope over the fly-over area. For agricultural day operations, the transverse slope should not be more than 3% over the runway and 5% over the runway strip.

5.5  Other Physical Characteristics.

Both ends of a runway, not intended solely for agricultural operations, should have approach and take-off areas clear of objects above a 5% slope for day and a 3.3% slope for night operations. Other recommended landing area physical characteristics are shown on the following diagrams:

Figure 2A - Single engined and Centre-Line

Thrust Aeroplanes not exceeding 2000 kg

MTOW (day operations)

Figure 2B - Other Aeroplanes (day

operations)

 

Figure 3 - Dimensions (night operations)

 

 

Figure 4 - Dimensions - agricultural day

operations

…

8 - OTHER FACTORS THAT SHOULD BE CONSIDERED PRIOR TO USING A LANDING AREA

8.1  A pilot should not use a landing area or have an aeroplane engine running unless the aeroplane is clear of all persons, animals, vehicles or other obstructions.

8.2  A pilot should not use a landing area without taking all reasonable steps to ensure the physical characteristics and dimensions are satisfactory. For aerial work and charter operations the operator should provide evidence to the pilot on the suitability of a landing area prior to its use.

…

 

8.4  Geographic Location. A landing area should not be located:

…

 

(c)   where take-off or landing involving flight over a populated area creates an unnecessary hazard.

…

8.8  The surface of a landing area should be assessed to determine its effect on aeroplane control and performance. For example, soft surfaces or the presence of long grass (over 150mm) will increase take-off distances while moisture, loose gravel or any material that reduces braking effectiveness will increase landing distance.

…’