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Local Court 15 December 2022

Civil Aviation Safety Authority v Pudniks

[2022] NSWLC 26

Public order & justice offences
AVIATION AIRCRAFT PARAGLIDER FLIGHT TIME

Citation: Civil Aviation Safety Authority v Pudniks [2022] NSWLC 26
Court: Local Court of NSW
Date: 15 December 2022
Judge: Farnan LCM

Background

The defendant was an experienced recreational paraglider pilot who held a PG4 pilot certificate issued through his membership of the Sports Aviation Federation of Australia (SAFA), the governing body for paragliding in Australia. When his SAFA membership expired on 31 August 2020, his pilot certificate was automatically cancelled. He was aware of the cancellation.

Despite no longer holding a certificate and without CASA approval, the defendant continued to operate his paraglider on sixteen occasions between September 2020 and May 2021, at sites including Mount Blackheath, Otford, and Stanwell Tops. He flew as pilot-in-command on each occasion, without supervision from an instructor.

The Civil Aviation Safety Authority prosecuted him for sixteen offences under section 20AB of the Civil Aviation Act 1988 (Cth), which prohibits a person from performing duties essential to the operation of an Australian aircraft during flight time without the required civil aviation authorisation.

Legal Issues

  • Whether a paraglider is an "aircraft" within the definition in section 3 of the Civil Aviation Act 1988 (Cth), that is, whether it derives support in the atmosphere from the reactions of the air.
  • If a paraglider is an aircraft, whether the defendant's conduct on each occasion constituted performing duties essential to the operation of an Australian aircraft "during flight time" as defined in the regulations, for the purposes of section 20AB.

Decision

Issue 1: Is a paraglider an aircraft?

The court heard expert evidence from Dr Sonya Brown, an aeronautical engineer whose expertise was not in dispute. Dr Brown gave an unequivocal opinion that a paraglider, once inflated by ram air, functions as a wing that generates lift through pressure differentials created by the reactions of the air as the wing moves through it (at [31]-[34]). The court accepted her opinion and found she was unshaken in cross-examination.

The defendant argued that "support" in the definition requires an aircraft to be stopped from falling entirely, and that a paraglider, which always descends, is therefore not supported by the air. The court rejected that argument. It found that the purpose of a glider is precisely to slow the effect of gravity so that a person glides rather than falls, and that the defendant's own longest flight of six hours covering 110 km could not have been achieved without the support provided by the reactions of the air (at [41]-[42]). The court also rejected the argument that lift constitutes an "action" of the air rather than a "reaction": once the pilot attains the required velocity, it is the reactions of the air to the moving wing that provide support (at [47]). The court was satisfied beyond reasonable doubt that a paraglider is an aircraft for the purposes of the Act (at [50]).

Issue 2: Does "flight time" apply to paragliders under section 20AB?

This was the more complex regulatory question. Paragliders are exempt from most of the Civil Aviation Safety Regulations 1998 (CASR), including Part 61, which sets out the licensing scheme for pilots of registered aircraft. However, the Dictionary to the CASR (which does apply to paragliders) defines "flight time" by reference to regulation 61.010, and regulation 61.090 defines when flight time begins and ends for a pilot in command of a glider (at [60]-[63]).

The court acknowledged that the path to applying the Part 61 flight time definition to paragliders was not straightforward, but found that it was the correct interpretation when the Act and regulations were read as a whole (at [78]). An alternative interpretation, under which paraglider operations would fall outside section 20AB altogether, was inconsistent with the legislative scheme, which clearly contemplates paragliders as aircraft and imposes a certification and training regime on their pilots (at [77]-[78]). The court found the flight time definition in regulation 61.010 applies to paragliders for the purposes of section 20AB (at [69]).

Conclusion

The defendant was operating the paraglider as pilot-in-command on each of the sixteen occasions alleged, without a required civil aviation authorisation, during flight time as defined in the regulations. The court found him guilty of all sixteen offences (at [80]).

Orders Made

  • Offences proved (all sixteen counts under section 20AB of the Civil Aviation Act 1988 (Cth))

Key Takeaways

  • A paraglider is an "aircraft" within the definition in section 3 of the Civil Aviation Act 1988 (Cth): it derives support in the atmosphere from the reactions of the air through the lift generated by pressure differentials across its wing (at [50]). The fact that it descends rather than maintains altitude does not exclude it from the definition.

  • The definition of "support" in the aircraft definition does not require that a craft be prevented from descending altogether. The Local Court found the distinction between an aircraft and a non-aircraft is one of degree, not kind, and that slowing the rate of descent through aerodynamic lift satisfies the statutory requirement (at [41]-[43]).

  • Under the legislative scheme, the definition of "flight time" in regulation 61.010 of the CASR, incorporated via the CASR Dictionary, applies to paraglider operations for the purposes of section 20AB, notwithstanding that Part 61 generally does not apply to paragliders (at [69], [78]).

  • Automatic cancellation of a SAFA pilot certificate upon expiry of membership removes the civil aviation authorisation that would otherwise permit a person to operate a paraglider lawfully, exposing them to prosecution under section 20AB (at [9]-[10]).

  • Regulation 200.030 of the CASR provides a separate regulatory offence covering unlicensed paraglider operation, carrying a lesser maximum penalty than section 20AB. The existence of that regulatory alternative does not preclude a prosecution under section 20AB for the same conduct (at [57]-[58]).

Legislation and Cases Referenced

Legislation
- Civil Aviation Act 1988 (Cth) s 20AB
- Civil Aviation Order 95.8 Instrument 2011
- Civil Aviation Regulations 1988 (“CAR”)
- Civil Aviation Safety Regulations 1998 (“CASR”).

Cases
- Project Blue Sky Inc v Australian Broadcasting Authority (1998) 153 ALR 490