Brazier and Civil Aviation Authority
[2004] AATA 313
•26 March 2004
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 313
ADMINISTRATIVE APPEALS TRIBUNAL Nº N2003/878
Nº N2003/893
GENERAL ADMINISTRATIVE DIVISION
Re: ANDREW BRAZIER
Applicant
And:CIVIL AVIATION SAFETY AUTHORITY
Respondent
DECISION
Tribunal: Mr E. Fice, Member
Date: 26 March 2004
Place: Sydney
Decision:The Tribunal affirms the decision under review.
(sgd) E. Fice
Member
CIVIL AVIATION - aircraft maintenance - aircraft maintenance engineer licence - Certificate of Approval - Breach of regulations - cancellation of licence - series of breaches -facts and circumstances
ADMINISTRATIVE APPEALS TRIBUNAL - jurisdiction - Civil Aviation Safety Authority - ultra vires - law to be applied by Tribunal
Civil Aviation Act 1988 s 20AB(2)
Civil Aviation Regulations 1988
Civil Aviation Orders
Re Callaghanand Defence Force Retirement and Death Benefits Authority (1978) 1 ALD 227
Re Taylor and Department of Transport (1978) 1 ALD 312
Re Upton and Department of Transport (1977) 1 ALD 150
Re Costello and Secretary, Department of Transport (1979) 2 ALD 934
Commonwealth of Australia and Another v Esber (1991) 29 FCR 324
Re Murfet and Secretary of Department of Aviation (1984) 5 ALN N494
Re Flynn and Department of Aviation (1987) 13 ALD 279
Re Von Nida and Secretary, Department of Aviation (1985) 8 ALN N265
Re Griffith and Civil Aviation Authority (1994) 34 ALD 554
Maxwell v Dixon [1965] WAR 167
Re Taylor and Department of Transport (1978) 1 ALD 312
Re Repacholi and Civil Aviation Safety Authority (2003) 75 ALD 312
REASONS FOR DECISION
26 March 2004 Mr E. Fice, Member
These applications were heard concurrently. The parties are identical in both applications.
By a notice dated 5 May 2003, the Civil Aviation Safety Authority ("CASA") advised Andrew Brazier ("Mr Brazier") that it had cancelled his aircraft maintenance engineer licence N° L428855, pursuant to powers granted to CASA under reg 269 of the Civil Aviation Regulations 1988 ("the Regulations"). By a further notice dated 5 May 2003, CASA, pursuant to powers granted to it under reg 269, varied the Certificate of Approval N° C428855 ("Certificate of Approval") granted to Mr Brazier, pursuant to reg 30 of the Regulations, by adding the following conditions to the Certificate:
(a)that Mr Brazier not be appointed, or act as, chief engineer for Andrews Aircraft Maintenance; and
(b)that Mr Brazier not seek to influence Andrews Aircraft Maintenance chief engineer in technical matters relating to his performance of that function.
Mr Brazier's application is for a review of both decisions made by CASA.
At the hearing Mr Brazier was represented by Mr J. Anderson of counsel, instructed by Carneys Lawyers. CASA was represented by Mr I. Harvey of counsel, instructed by Mr A. Anastasi of CASA.
BACKGROUND
Mr Brazier obtained a Higher School Certificate in 1991. He holds a private pilot licence with a number of multi‑engine endorsements.
In January 1994, Mr Brazier commenced employment as an apprentice aircraft maintenance engineer. At about that time, he also enrolled at Padstow TAFE College to study for an aircraft maintenance and engineering trade certificate. He completed his studies and was granted an aircraft maintenance engineer licence on 12 January 1998. Avondale Aircraft Maintenance then employed him as a licenced aircraft maintenance engineer. In late 1998, he left Avondale Aircraft Maintenance and joined Furness Aviation at Camden Haven Airfield. In about July 1998 Furness Aviation commenced maintenance operations at Cessnock. At that time Mr Brazier was the Chief Engineer.
On 2 July 1999, Mr Brazier was granted a Certificate of Approval under reg 30 and commenced an aircraft maintenance engineering business, trading under the name Andrews Aircraft Maintenance ("AAM"). AAM's maintenance facility was also based at Cessnock. Later in 1999 Mr Brazier employed a licenced aircraft maintenance engineer, on a full‑time basis, to assist him in the conduct of the business of AAM.
In about June 2001, Mr Brazier was approached by a Mr Dalton, the proprietor of Cirrus Airlines, a company that operated five Piper twin engine aircraft. Mr Dalton explained to Mr Brazier that he was experiencing some problems having servicing on his aircraft completed within a reasonable time. Mr Dalton acknowledged that Mr Brazier did not have sufficient qualified people to maintain all five aircraft and therefore he asked if Mr Brazier would be able to service one or two of the aircraft. In the meantime, Mr Dalton offered to make enquiries to see if he could engage the services of some more maintenance engineers to assist Mr Brazier. Mr Brazier accepted Mr Dalton's proposal.
Mr Dalton then requested AAM to conduct maintenance on two Cirrus Airlines' aircraft, BH‑IGW - a Piper Mojove and VH‑XLB - a Piper Chieftain. Mr Dalton was clearly pleased with Mr Brazier's maintenance work and in about September 2001 he asked Mr Brazier if he would like to service the remaining three aircraft operated by Cirrus Airlines. Mr Brazier agreed, and in order to service the Cirrus Airlines aircraft, he retained the services of Mr Milton Duffy, who became the Chief Engineer, and of three additional engineers, to work with him. The additional work carried out for Cirrus Airlines required substantial planning and Mr Dalton suggested that a Mr Glen Somerville be appointed maintenance controller for the Cirrus Airlines aircraft. Mr Brazier agreed that it was Mr Somerville's role to carry out the following tasks:
(a)record flight hours for the respective aircraft for the purpose of scheduling maintenance;
(b)provide details of components approaching their scheduled time for overhaul or replacement;
(c)source and purchase parts required for the Cirrus Airlines aircraft; and
(d)fly Mr Brazier to locations where Cirrus Airlines aircraft had become unserviceable and required maintenance.
In about May or June 2002, Cirrus Airlines acquired two more aircraft, VH‑MYX, a Piper Chieftain, and VH‑FFJ, a Cessna 402.
By about May or June 2002, Cirrus Airlines owed AAM approximately $80,000 for maintenance work. Mr Brazier was extremely concerned about that situation and spoke to at least two persons from the finance company providing support to Cirrus Airlines. Those persons assured him that the accounts of Cirrus Airlines would be paid. This did not happen.
On 22 August 2002, the finance company appointed receivers to Cirrus Airlines. Cirrus Airlines changed its name to Cirrus Airways, and continued to operate. Mr Dalton assured Mr Brazier that the airline would continue to operate and that he wanted AAM to continue to do the maintenance work for Cirrus Airways. Mr Dalton told Mr Brazier that if he ceased to perform maintenance on Cirrus Airways aircraft he would not be paid any moneys owed to him. Mr Dalton offered to provide AAM with maintenance staff employed by Cirrus Airways. Mr Brazier agreed to that proposal and AAM employed three further full‑time personnel from Cirrus Airways, and utilised up to four additional engineers on a casual basis. Mr Brazier's role with AAM was to supervise the work being conducted by all aircraft maintenance engineers.
On 21 and 23 January 2002, two senior airworthiness inspectors from CASA, Mr Graham Gough and Mr Peter Anderson, conducted an un‑announced audit of the maintenance facility operated by AAM. The CASA representatives issued 13 requests for corrective action as a consequence of that audit. In general, however, Mr Gough and Mr Anderson reported that although the audit was un‑announced and a number of requests for corrective action were issued, it did not indicate an excessive level of non‑compliance (with relevant Regulations). Mr Brazier took remedial action by about March 2002, which was noted as being acceptable by CASA.
On 8 October 2002, Mr Robert Bradley Noble, an air safety auditor employed by CASA, as part of an assessment team considering the renewal of a chief pilot's approval for Mr Dalton of Cirrus Airways, attended AAM's maintenance facility at Cessnock to assess how a maintenance defect in the right‑hand engine of aircraft VH‑BYG was being addressed by Mr Dalton. Although the purpose of the audit was to assess how the maintenance defect was being addressed by Mr Dalton, and had nothing to do with AAM, when Mr Noble arrived at Cessnock Airport, he observed AAM maintenance engineers conducting an "engine run" on the said aircraft and making adjustments to the right‑hand turbocharger density controller. According to Mr Noble, the manner in which the turbocharger density controller adjustment was made caused him grave concern. After inspecting the maintenance release for that aircraft, which had been issued on the day before his audit, he identified a number of defects which he believed should have been detected and rectified when conducting the 100‑hourly periodic inspection which had resulted in the issue of the aircraft's current maintenance release.
On Friday, 1 November 2002, Mr Gary Arnold, an air safety auditor employed by CASA, carried out an inspection of aircraft VH‑XMA. The maintenance release for that aircraft had been issued on the previous day. Mr Arnold noticed a number of defects on that aircraft, although it had only flown 0.4 hours since the issue of the maintenance release. After speaking with his team leader, Mr Herb McFarlane, and expressing his concern about the standard of maintenance that had been conducted on that aircraft, Mr Arnold was instructed to conduct a risk-based audit of AAM.
On Monday, 4 November 2002, Mr Arnold, in Mr Brazier's presence, inspected the aircraft logbooks and work sheets relevant to maintenance conducted by AAM on VH‑XMA. Mr Arnold noted a number of discrepancies in the certification of completion of various aspects of maintenance. He then removed the logbooks and work sheets in respect of VH‑XMA, as well as the logbooks and work sheets relevant to aircraft VH‑HJK, VH‑OZM and VH‑BYG. Inspection of those records also revealed a number of discrepancies. In fact, Mr Arnold was so concerned with the perceived multiple breaches of regulations in respect of the five aircraft records inspected that he was instrumental in causing CASA to issue notices pursuant to reg 269(3) ("show cause notice"). Notices under this sub‑regulation are required to be given to permit the holder of a licence or Certificate of Approval to show cause in the time specified by CASA in the notice, why the licence or Certificate of Approval should not be varied, suspended or cancelled under reg 269.
Mr Brazier was given until 31 January 2003 to show cause, in writing, why his aircraft maintenance engineer licence and Certificate of Approval should not be varied, suspended or cancelled. He was offered the option of attending a show cause conference to explain, clarify or elaborate on any written response to the allegations made against him, before a final decision was made.
Mr Brazier provided a written response to the show cause letters, and he attended the conference, which was conducted on 6 March 2003.
After considering all of the evidence, including the information provided at the show cause conference, a delegate of CASA, by notice dated 5 May 2003, cancelled Mr Brazier's aircraft maintenance engineer licence N° L428855. The grounds for cancellation were that Mr Brazier contravened Civil Aviation Order (CAO) 100.5, numerous regulations and sub‑regulations and s 20AB(2) of the Civil Aviation Act 1988 (the Act). Furthermore, CASA decided that Mr Brazier had so consistently breached the Regulations as to indicate a culture of non‑compliance; and as a consequence, he was not a fit and proper person to exercise the privileges of an aircraft maintenance engineer licence. The CASA delegate found there was a serious risk to aviation safety if Mr Brazier's aircraft maintenance engineer licence was not cancelled. He found that CASA could not be satisfied that aircraft maintenance purportedly carried out and certified by Mr Brazier did meet the minimum standards provided under the Regulations which ensured that maintenance conducted on aircraft was of a standard which minimised risks to the safety of air navigation.
By a further notice dated 5 May 2003, CASA advised Mr Brazier that his Certificate of Approval N° C428855 would be varied. The basis for the decision was that, in the absence of significant modifications to the structure of the business being conducted under cover of the Certificate of Approval, and the manner in which the business was being conducted, there was likely to be a continuing serious risk to aviation if the Certificate of Approval was not cancelled. However, given the steps taken by Mr Brazier to ensure that future maintenance activities would be conducted in a manner that would comply with the Regulations, coupled with the cancellation of Mr Brazier's aircraft maintenance engineer licence, CASA determined to vary the terms of the Certificate of Approval rather than cancel it. The breaches of the Regulations relied upon in this notice were, save for two allegations, identical to those relied upon for the cancellation of Mr Brazier's aircraft maintenance engineer licence.
System of Certification of Completion of Maintenance
The system of certification of completion of maintenance is an essential component of the regulatory framework dealing with maintenance conducted on Australian aircraft in Australian territory. It enables a pilot or operator of an aircraft to know, with some certainty, the airworthiness status of an aircraft. To certify completion of maintenance in accordance with the Regulations is, therefore, a very serious matter.
A valid maintenance release must be in force if the aircraft is to be regarded as airworthy. A fresh maintenance release is issued after completion of each periodic inspection. The CASA Maintenance Schedule, which is set out in Schedule 5 to the Regulations, provides that for a Class B aircraft that is not a private aircraft, a periodic inspection must take place on an annual basis, or after the aircraft has been in service for 100 hours following the most recent general maintenance inspection on the aircraft (paragraph 2.4). It is common ground that all of the aircraft maintained by AAM were Class B aircraft.
Sub-regulation 43(7) provides that a maintenance release shall not be issued in respect of an aircraft unless all maintenance required to be carried out to comply with any requirement or condition imposed under the Regulations, has been certified in accordance with reg 42ZE or reg 42ZN to have been completed.
As reg 42ZN refers only to maintenance of aircraft outside of Australia, it is not relevant to this matter.
Regulation 42ZE provides that a person who carries out maintenance on an Australian aircraft in Australian territory must ensure that completion of maintenance is certified either in accordance with an approved system of certification of completion of maintenance or, alternatively, the CASA system of certification of completion of maintenance. Maintenance performed by employees of an employer who holds a Certificate of Approval or an aircraft maintenance engineer licence is taken to be carried out by the employer and not by the employees.
As AAM did not have an approved system of certification of completion of maintenance, it was required to use the CASA system of certification of completion of maintenance, which is set out in Schedule 6 to the Regulations.
Schedule 6 to the Regulations provides, so far as it is relevant to this matter, that certification must be made for:
(a)the completion of each stage of maintenance, and the completion of an inspection under reg 42G(2);
(b)coordination of maintenance; where more than one person performs stages of maintenance within a category of maintenance, or where maintenance within more than one category of maintenance is carried out and more than one person performs that maintenance; and
(c)completion of maintenance when all of the maintenance required to be carried out on an aircraft at a particular time, and if maintenance is required to be coordinated, coordination of the maintenance, has been completed and certified.
Paragraph 2.3 of Schedule 6, so far as it is relevant, provides that certification for completion of a stage of maintenance or an inspection under reg 42G(2) must be made:
(a)in the documents kept by the person carrying out the maintenance as a record of carrying out of the maintenance; or
(b)in the aircraft logbook or approved alternative maintenance record for the aircraft.
At the relevant time, there was no approved alternative maintenance record for any of the aircraft that were the subject of the CASA investigation.
A certification for completion of a stage of maintenance must, amongst numerous other things:
(a)be signed by the person making the certification;
(b)include the licence number and Certificate of Approval number of the person making the certification;
(c)include the date on which the certification was made;
(d)if a special inspection was carried out, set out what was found as a result of that inspection; and
(e)include a list of Airworthiness Directives complied with in the course of carrying out the maintenance and set out any defects found in complying with those directives.
Alleged BreAches of Regulations
It is convenient to deal with the alleged breaches of the Regulations by category rather than by addressing each individual breach in a chronological fashion or in relation to any particular aircraft. Only those breaches which were finally pressed by CASA are described.
Uncertified Entries in Work Sheets – Maintenance Release Nevertheless
Issued
In each of the matters set out under this category of breach, although there was no evidence of certification of completion of maintenance on the work sheets, Mr Brazier issued and signed a fresh maintenance release.
On 7 January 2002, Mr Brazier issued and signed a maintenance release N° 334874, following performance of a periodic inspection (100‑hourly) on aircraft VH‑XLB. AAM raised a job number, 02/004A, in respect of that periodic inspection. Among the work sheets raised for that inspection was an AAM document entitled “Airworthiness Directive and Special Inspection Compliance Sheet”. Entered on that sheet were a number of Airworthiness Directives, including AD/PROP/2 AMDT2 and AD/AIRCON/9 AMDT5 PT1. No details were entered in the section for compliance with those two Airworthiness Directives. That is, maintenance in accordance with those two Airworthiness Directives had not been certified as having been completed.
On 25 January 2002, Mr Brazier issued and signed maintenance release N° 334882 after a periodic inspection on aircraft VH‑XLB. AAM raised a job number, 02/017A, for that maintenance work. The Airworthiness Directive and Special Inspection Compliance Sheet raised by AAM contained the following Airworthiness Directives: AD/LYC/78 (300 hours), AD/LYC/105 (55 hours) and 500‑hourly inspection/Piper - periodic inspection. None of those Airworthiness Directives has been certified as having been completed.
On 16 February 2002, Mr Brazier issued and signed a maintenance release, N° 334888, after completion of a periodic inspection on aircraft VH‑HJK. AAM raised a job number, 02/032A, in respect of that maintenance work. The work sheet in this case does not indicate that it is an AAM work sheet, but is nevertheless headed Airworthiness Directive and Special Inspection Compliance Sheet and contains the annotation regarding certification at the bottom of that document. Item 4 on the work sheet, an Airworthiness Directive AD/AIRCON/9#5 heater inspection, has no entry against it in respect of compliance or certification of completion of maintenance.
On 28 February 2002, Mr Brazier issued and signed a maintenance release, N° 334889, following completion of a periodic inspection on aircraft VH‑XLB. AAM raised a job number, 02/036A, in respect of that maintenance work. The work sheets in respect of this maintenance include an AAM document entitled “Airworthiness Directive and Special Inspection Compliance Sheet”. Item N° 3 on that work sheet is Airworthiness Directive AD/LYC/78 300 hr. Maintenance in accordance with the Airworthiness Directive was not certified as having been completed.
On 14 March 2002, Mr Brazier issued and signed a maintenance release, N° 334892, following the completion of periodic inspection on aircraft VH‑HJK. AAM raised a job number, 02/045A, in respect of that maintenance work. Included in the work sheet package is an AAM document entitled “Airworthiness Directive and Special Inspection Compliance Sheet”. Listed on that work sheet are two Airworthiness Directives, AD/PA31/96 and AD/AIRCON/13. Neither of those entries contains a certification indicating that maintenance in accordance with those Airworthiness Directives was completed.
On 25 March 2002, Mr Brazier signed and issued a maintenance release, N° 334898, following the periodic inspection on aircraft VH‑BYG. AAM raised a job number, 02/054A, against that maintenance. Included in the work sheet package is a document entitled “Additional Work Sheet”. It does not appear to be an AAM work sheet. Item N° 2 on that work sheet lists “check under carriage strut inflation” as a defect or work required. There is no certification entered on that work sheet indicating completion of that particular maintenance work.
On 26 March 2002, Mr Brazier signed and issued a maintenance release, N° 334899, after a periodic inspection on aircraft VH‑XLB. AAM raised a job number, 02/056A, in respect of that maintenance. Included in the work sheet package is a document, apparently not an AAM document, entitled “Airworthiness Directive and Special Inspection Compliance Sheet”. Entered on that sheet is Airworthiness Directive AD/LYC/78. Maintenance in accordance with that Airworthiness Directive is not certified as having been completed.
On 27 March 2002, Mr Brazier signed and issued a maintenance release, N° 334900, after completion of a periodic inspection on aircraft VH‑OZM. AAM raised a job number, 02/057A, in respect of that maintenance work. Included in the work sheet package is a document entitled “Additional Work Sheet". This does not appear to be an AAM document. It has a number of typed entries as well as some handwritten entries. Maintenance on the following entries has not been certified as having been completed:
(a)gyro compass – radio nav functions serviceable;
(b)cabin door striker missing;
(c)check cabin door operation;
(d)nose locker screw missing;
(e)check Com 2 operation ‑ Tx u/s; and
(f)horizontal situation indicator not slaving.
On 11 April 2002, Mr Brazier issued and signed a maintenance release, Nº A04154, after completing a periodic inspection on aircraft VH‑HJK. AAM raised a job number, 02/065A, in respect of that maintenance. The work sheet package in respect of this maintenance contained a work sheet entitled “Additional Work Sheet", which is not an AAM document. Maintenance on the following entries in the additional work sheet has not been certified as having been completed:
(a)RH governor leaking at shaft;
(b)check flap rigging;
(c)H/F u/s; and
(d)RH magneto running rough.
On 7 June 2002, Mr Brazier signed and issued a maintenance release, Nº A04172, after completion of a periodic inspection on aircraft VH‑XLB. AAM raised a job number, 02/111B, in respect of that maintenance. Included in the work sheet package is a document entitled “Additional Work Sheet”. That document is not an AAM document. Maintenance on the following entries in the additional work sheet has not been certified as having been completed:
(a)pilot’s side AH slow to erect;
(b)check Com 2 operation; and
(c)RH exhaust leak at flange.
On 24 June 2002, Mr Brazier signed and issued a maintenance release, N° A04178, after completion of a periodic inspection on aircraft VH‑BYG. AAM raised job number, 02/124A, in respect of that maintenance. Included in the work sheet package is a document entitled “Additional Work Sheet”, which does not appear to be an AAM document. Maintenance on the following entries in the additional work sheet has not been certified as having been completed:
(a)dome light u/s;
(b)intercom u/s;
(c)LH strobe u/s;
(d)RH map light u/s;
(e)check LH cowl flap operation; and
(f)note S/N L/H pneumatic pump.
On 29 July 2002, Mr Brazier signed and issued a maintenance release, N° A04190, after a periodic inspection on aircraft VH‑XLB. AAM raised a job number, 02/148A, in respect of that maintenance. Included in the work sheet package is a document entitled “Airworthiness Directive and Special Inspection Compliance Sheet”, which does not appear to be an AAM document. Among the Airworthiness Directives is listed an item Piper SB 779 U/C retaining pin inspection. Maintenance in accordance with that Airworthiness Directive has not been certified as having been completed.
Maintenance certified by ineligible person
On 7 January 2002, following the completion of a periodic inspection on aircraft VH‑XLB, Mr Brazier signed a form, AAM1, on which he certified that the periodic inspection had been performed and properly certified in accordance with reg 42ZE. In so affixing his signature, Mr Brazier was purporting to comply with paragraph 3.5 of Schedule 6 to the Regulations. Paragraph 3.5 of Schedule 6 provides as follows:
3.5 If the carrying out of maintenance within a category of maintenance is required to be co-ordinated because of paragraph 3.1, the maintenance must be co‑ordinated by one of the persons who performed a stage of maintenance within that category.
Paragraph 3.1 of Schedule 6 provides as follows:
3.1 If more than one person performs stages of maintenance within a category of maintenance, the person carrying out the maintenance must ensure that one of the persons specified in paragraph 3.5 co-ordinates the carrying out of that category of maintenance.
On the same form AAM1, Mr Brazier signed under the heading "LAME airframes". That signature signifies that Mr Brazier was the person who coordinated the airframe maintenance for that periodic inspection. However, Mr Brazier did not certify the completion of any maintenance whatsoever in the airframe category for that periodic inspection. Accordingly, he was not a person eligible to certify the coordination of maintenance in the airframe category.
On 14 March 2002, following the completion of a periodic inspection of aircraft VH‑HJK, Mr Brazier certified for the completion of maintenance in accordance with Airworthiness Directive AD/AIRCON/9A5 Pt 2. Mr Brazier's aircraft maintenance engineer licence was endorsed with the following licence groups:
(a)airframe category, groups 1, 5 and 6; and
(b)engine category, groups 1 and 3.
His licence was not endorsed with the electrical category and, accordingly, he was ineligible to conduct, and certify as having completed, maintenance in accordance with Airworthiness Directive AD/AIRCON/9A5 Pt 2.
On 31 October 2002, following the completion of a periodic inspection on aircraft VH‑XMA, Mr Brazier certified for the completion of maintenance in accordance with Airworthiness Directive AD/AIRCON/9A5 Part number 2. Maintenance in accordance with that Airworthiness Directive was required to be completed by an aircraft maintenance engineer holding a licence with an electrical endorsement. Mr Brazier did not hold such an endorsement and, accordingly, was not a person authorised to conduct that maintenance or to certify for the completion of that maintenance.
Known defects not recorded on Maintenance Release or Additional Work
Sheets and no evidence of maintenance having been completed
Included in the work sheet package for AAM job number 02/004A was a handwritten list of defects setting out the following apparent defects for aircraft VH‑XLB:
(a)LH aileron rod ends;
(b)aileron cable tension low;
(c)missing LH flap static wick;
(d)RH flap attach for actuator bolt loose;
(e)aileron trim OTBD bearing;
(f)no tail strobe power pack;
(g)corrosion on tail radio antennas;
(h)both ALT air cables seized;
(i)cabin exhaust cables seized;
(j)LH oil Px gauge (or line to it) leaking oil;
(k)main entrance door lower hinge FWD worn; and
(l)fuel tank RHS.
These defects were not transferred to the Additional Work Sheets, nor were they endorsed on the maintenance release. It is alleged that Mr Brazier must have been aware of these defects, but failed to enter the defects on the additional maintenance work sheets or to endorse the maintenance release. As a consequence, there is no evidence that these defects were rectified and the maintenance certified as having been completed prior to the issue of maintenance release N° 334874 on 7 January 2002.
Improper maintenance not certified as having been completed/not in
accordance with approved data
In respect of AAM job number 02/004A, which was a periodic inspection on aircraft VH‑XLB, the parts/components usage sheet, raised by AAM for that particular job, indicates the use of three brake pads and one quantity of PR1422 sealant. In the absence of a satisfactory explanation, CASA alleged that the sealant was used to carry out repairs to the right‑hand fuel tank which was noted as defective on the handwritten list of defects found in the work sheet package relevant to that particular job number, and that there were no work sheet entries in respect of that work or certifications of completion of maintenance having been made in respect of that work. CASA also alleged that the brake pads were installed on aircraft VH‑XLB without any work sheet entries or certifications of completion of maintenance.
CASA alleged that the Piper Chieftain Maintenance Manual specifically states that damaged or leaking fuel cells are to be removed and returned to the manufacturer for repair. Accordingly, no approval could have been given for the repair of the fuel cell with the PR1422 sealant.
On 29 July 2002, Mr Brazier signed a maintenance release N° A04190 following a periodic inspection of aircraft VH‑XLB. AAM raised a job number, 02/148A, in respect of that maintenance. The aircraft total time in service at the time of issue of the maintenance release was 20,605.2 hours. The maintenance schedule for that aircraft required inspection of the flight control cables at each periodic inspection.
On 30 July 2002, maintenance release N° A04190 was endorsed with the following defect — "elevator trim wheel is jammed, unable to move from full fwd position". The aircraft's total time in service at the time the endorsement was made was 20,606.4 hours. In other words, the aircraft had been operated for 1.2 hours since its last periodic inspection. Inspection of the aircraft disclosed that the elevator trim cable had broken in the vicinity of the elevator trim servo. CASA alleged that a proper inspection of the flight control cables during the periodic inspection would have revealed that the elevator trim cable had deteriorated to the point where it posed an unacceptable risk to air safety, and required replacement prior to further flight. Accordingly, CASA further alleged that Mr Brazier failed to properly conduct an inspection of the flight control cables in the course of completing the periodic maintenance on that aircraft.
On 8 October 2002, Mr Noble and Mr Nolan observed a Mr Robbin Metcalfe, an aircraft maintenance engineer employed by Mr Brazier, performing adjustments to the right‑hand engine of aircraft VH‑BYG. Those adjustments were being made to the engine turbocharger density controller. Mr Noble and Mr Nolan observed that the adjustments were made without utilising the specialist equipment required by the manufacturer, as is set out in Textron Lycoming Service Instruction 1187G. Mr Brazier was not present during the conduct of this maintenance task, although he was the licenced aircraft maintenance engineer responsible for supervising Mr Metcalfe. Mr Metcalfe, at that time, was not a licenced aircraft maintenance engineer. Mr Brazier, nevertheless, certified for completion of that maintenance. CASA also alleged that the turbocharger density controller adjustments were not made in accordance with the manufacturer's specialised procedures.
On 1 November 2002, CASA officers (Mr Arnold and Mr Simpson) inspected aircraft VH‑XMA. They observed that the wear in the aileron and rudder trim control systems were outside the limitation specified by the aircraft manufacturer for continued operation and that the copilot's seat belt was found to have no legible identification tags evident. These defects were noted despite the fact that a maintenance release, N° 6319, for that particular aircraft was issued on 31 October 2002 following completion of a periodic inspection.
Maintenance apparently performed but not certified as completed
On or about 7 January 2002, it is alleged that AAM conducted the following repairs and maintenance on aircraft VH‑XLB, against job number 02/004A, but failed to certify the maintenance and repairs as having been completed:
(a)repairs to the right‑hand fuel tank; and
(b)replacement of three brake pads.
Maintenance overlooked or performed out of time
The right‑hand engine on aircraft VH‑OZM was noted as being due for an overhaul after the aircraft had completed 15,345 hours total time in service. That entry is noted on maintenance release N° 16210 dated 29 October 2001. On that maintenance release, Mr Brazier certified that an overhauled engine with starter fitted to the right‑hand side had been completed on 11 March 2002. Certification by Mr Brazier on the additional work sheet raised in respect of that job is dated 12 March 2002. However, the entry in the aircraft logbook is dated 4 March 2002. CASA alleged that this indicates that either the entry on the maintenance release or the logbook was false, or, alternatively, it demonstrates poor record keeping by Mr Brazier.
On 26 March 2002, Mr Brazier signed a maintenance release N° 334899 following the completion of a periodic inspection on aircraft VH‑XLB. At the time of the issue of the maintenance release, the aircraft's total time in service was 20,307.4 hours. Airworthiness Directive AD/PA31/76A5, which required an elevator downspring and link replacement, was due to be performed at 20,229.8 hours. This maintenance had not been completed, although Mr Brazier had signed the maintenance release.
On 3 April 2002, Mr Brazier certified in the AAM work sheets, in respect of job number 02/058A, that maintenance had been completed in respect of replacement of the left hand fuel pump on aircraft VH‑XLB. The entry in the aircraft logbook regarding this work is dated 5 April 2002, at a time when the aircraft's total time in service was 20,329 hours. The maintenance release certification for the performance of the maintenance was made on 3 April 2002 when the aircraft's total time in service was 20,322.6 hours. Maintenance release N° 334899, dated 26 March 2002, is endorsed with this maintenance indicated to be due at 20,323.6 hours total time in service. Because the certifications made in the logbook, the maintenance release and the work sheets are made on different days, CASA alleged that those certifications are untrue and incorrect.
On 15 April 2002, Mr Brazier certified for the completion of maintenance in respect of the replacement of the right‑hand pneumatic pump on aircraft VH‑XLB. This certification was made in the work sheets in respect of AAM job number 02/067A. The logbook entry, evidencing certification of completion of this maintenance, is dated 15 April 2002 at a time when the aircraft's total time in service was 20,358.4 hours. The maintenance release certification indicating the completion of this maintenance shows the maintenance to have been completed on 5 April 2002 when the aircraft total time in service was 20,328.2 hours. Maintenance release N° 334899 is endorsed for this maintenance to be performed at 20,329.7 hours. CASA alleged that Mr Brazier, by certifying the completion of maintenance that had not been performed at the time of the certification, made a certification that was false and untrue.
On 31 October 2002, Mr Brazier signed a maintenance release, following the completion of a periodic inspection of aircraft VH‑XMA. At the time Mr Brazier issued the maintenance release, the left hand and right‑hand engine constant speed units and the left hand and right‑hand dry air pumps, which were overdue for overhaul or replacement, were not overhauled or replaced as required by Cessna Aircraft Company 310 Service Manual Component Time Limit Schedule.
Failure to enter required maintenance on maintenance release
On 11 April 2002, Mr Brazier issued maintenance release N° A04154, following the completion of a periodic inspection of aircraft VH‑HJK. Mr Brazier failed to list, in the maintenance required section of the maintenance release, the following:
(a)right‑hand engine fuel pump due O/H 12057.5 airframe hours; and
(b)RH wastegate due O/H 12057.5 airframe hours.
On 7 June 2002, Mr Brazier signed a maintenance release N° A04172, following the completion of a periodic inspection of aircraft VH‑XLB. In the maintenance required section of the said maintenance release, Mr Brazier failed to enter the following:
(a)AD/RAD/43/A8;
(b)AD/RAD/47/A1; and
(c)AD/PA/31/122#1.
On 29 July 2002, Mr Brazier signed a maintenance release Nº AO4190, following the completion of a periodic inspection of aircraft VH‑XLB. In the maintenance required section of the said maintenance release, Mr Brazier failed to record the following maintenance:
(a)AD/RAD/43/A8;
(b)AD/RAD/47/A1; and
(c)AD/PA/31/122#1.
Incorrect information recorded on maintenance release
On 30 April 2002, Mr Brazier signed a maintenance release Nº AO4155 following the completion of a periodic inspection of aircraft VH‑XLB. The work sheets in relation to that job, number 02/078A, indicate that the left-hand prop governor was due at 20,429.1 hours aircraft total time in service. In the maintenance required section of maintenance release AO4155, Mr Brazier entered the left-hand prop governor overhaul at a total time in service of 20,455.7 hours, instead of 20,429.1 hours.
On 29 July 2002, Mr Brazier signed a maintenance release Nº AO4190 following the completion of a periodic inspection of aircraft VH‑XLB. The aircraft total time in service at the time of signing the maintenance release was recorded as 20,605.7 hours, instead of 20,605.2 hours.
FINDINGS ON ALLEGED BREACHES
Uncertified entries in work sheets – Maintenance Releases nevertheless
issued
Two possibilities arise in respect of this allegation. The first is that the maintenance in question was, in fact, carried out but there was a failure to certify completion of that maintenance work. The second possibility is that the maintenance work was not carried out and hence the lack of certification of completion of maintenance.
Under this category of Alleged Breaches, CASA, in its letter of 5 May 2003, regarding Mr Brazier's aircraft maintenance engineer licence, stated that the absence of certification of completion of maintenance on the work sheets and the subsequent signing of a maintenance release occurred in circumstances where the maintenance had not been performed and certified, and, accordingly, that Mr Brazier had contravened reg 43(13)(c). However, in its Notice of Decision varying the Certificate of Approval, as far as this category of breach is concerned, CASA stated that by issuing a maintenance release without ensuring that all maintenance was correctly performed and certified as having been completed, Mr Brazier contravened reg 43(7)(a).
Regulation 43(13)(c) provides as follows:
(13) A person shall not sign a maintenance release to be issued by virtue of paragraph (7)(a) in respect of an aircraft if:
(a) …
(b)…
(c)the person is aware that certain maintenance that has been carried out on the aircraft has not been certified, in accordance with regulation 42ZE or 42ZN, to have been completed; or
(d) …
Regulation 43(7)(a) provides as follows:
(7) A maintenance release shall not be issued in respect of an aircraft unless:
(a)all maintenance in respect of the aircraft required to be carried out to comply with any requirement or condition imposed under these regulations has been certified, in accordance with regulation 42ZE or 42ZN, to have been completed; or
(b) …
CASA contends that the absence of certification of stages of maintenance, set out in the work sheet documents entitled Airworthiness Directive and Special Inspection Compliance Sheet ("Airworthiness Directive Sheet") and Additional Work Sheet ("Additional Work Sheet"), coupled with the absence of any entry in the aircraft's logbooks certifying completion of stages of maintenance, makes it impermissible for Mr Brazier to issue a maintenance release following the completion of maintenance on an aircraft, for the reason that it offends against reg 43(7)(a) and reg 43(13)(c). In other words, CASA alleged that Mr Brazier could not be satisfied, without certification of completion of each stage of maintenance, that all maintenance had been properly completed, alternatively, if he was aware that maintenance had been completed, then he must have been aware that that particular maintenance had not been certified in accordance with reg 43ZE.
The Airworthiness Directive Sheet sets out a list of Airworthiness Directives which must be complied with in order that the aircraft can be classified as being airworthy. Regulation 37A provides, in so far as it is relevant:
37A(1) Where CASA considers that an unsafe condition:
(a)exists; or
(b)is likely to exist; or
(c)is likely to develop;
in:
(d)an aircraft or a specified type or category of aircraft; or
(e)an aircraft component or a specified type or category of aircraft component; or
(f)an item of aircraft equipment or a specified type or category of aircraft equipment;
CASA may, in Civil Aviation Orders or otherwise in writing, issue an airworthiness directive requiring a person to take the action specified in the directive to remedy the unsafe condition of the aircraft, aircraft component or aircraft equipment.
…
Sub‑paragraph 2.5(j) of Schedule 6 to the Regulations provides that a certification for completion of a stage of maintenance must include a list of Airworthiness Directives complied with in the course of carrying out the maintenance and set out any defects found in complying with those directives. In reg 2, "maintenance" is defined as
(a)…
(i)the doing of any work…on the aircraft that may affect the safety of the aircraft or cause the aircraft to become a danger to person or property; or
(ii)the making of a test or an inspection for the purpose of ascertaining whether the aircraft is in a fit state for flying; or
…
It is not in dispute that an inspection in accordance with an Airworthiness Directive constitutes maintenance for the purposes of the Regulations. Also, it appears to be common ground that maintenance in accordance with an Airworthiness Directive can be taken as a stage of maintenance. It follows that compliance with an Airworthiness Directive required certification of completion of that maintenance by Mr Brazier as the holder of an aircraft maintenance engineer licence or a Certificate of Approval. The Airworthiness Directive Sheet makes provision for such certification. Furthermore, each Airworthiness Directive Sheet and Additional Work Sheet has on it an endorsement to the effect that certification of completion of maintenance on those sheets constitutes a certification pursuant to reg 42ZE that all maintenance has been properly performed.
However, the applicant's principal argument is that the Airworthiness Directive Sheet is not an essential element of the system of maintenance under which AAM was operating at the time. Mr Charles Shipway, a highly experienced licenced aircraft maintenance engineer, who gave expert evidence on behalf of Mr Brazier, said in evidence that he did not see the Airworthiness Directive Sheet as part of AAM's system of certification of maintenance. He said that he regarded that document simply as a piece of paper, provided by the aircraft operator to the maintenance organisation. Under cross‑examination, Mr Shipway reluctantly conceded that the Airworthiness Directive Sheet could form part of the system of quality control of a maintenance organisation if it so nominated the use of that sheet. He also conceded that sometimes a maintenance organisation would use such a sheet without nominating it as part of its system of quality control. Mr Shipway also sought to distinguish Airworthiness Directive Sheets that were not documents raised by AAM from Airworthiness Directive Sheets that were in fact raised by AAM. The different sheets are readily identified by reason of the fact that those raised by AAM had its name, address and contact details printed at the top of each page. Otherwise, the Airworthiness Directive Sheets provided by the aircraft operator, and the AAM sheets are identical and have an identical endorsement at the bottom of each page regarding certification in compliance with reg 42ZE.
Under cross‑examination, Mr Shipway conceded that the Airworthiness Directive Sheets which had AAM's particulars printed on the top of each sheet were produced as part of AAM's quality control manual. Mr Shipway also conceded that it was the responsibility of the maintenance organisation to ensure compliance with all Airworthiness Directives. He agreed that Airworthiness Directives were not required to be endorsed on the maintenance release.
Mr Kenneth Cannane, an experienced licenced aircraft maintenance engineer and a former head of maintenance standards with CASA and its predecessors, also provided expert evidence in support of Mr Brazier's claim. Mr Cannane regarded the work sheets to be merely a "memory jogger". Mr Cannane agreed that compliance with requirements set out in an Airworthiness Directive can itself be a stage of maintenance. He conceded that whether or not the Airworthiness Directive Sheet was one raised by AAM or provided to AAM by an external organisation, it could, nevertheless, be used by AAM as part of its maintenance certification.
The general comments made above in respect of the Airworthiness Directive Sheet are equally applicable to the Additional Work Sheet. The only significant difference being that the Additional Work Sheet sets out defects requiring rectification or further work to be done on some component of the aircraft, either at a periodic inspection or at some future time.
Mr Garry Arnold, an air safety auditor employed by CASA, annexed to his witness statement a document produced by AAM entitled "Quality Control Manual". This manual was superseded by an amended manual on 20 February 2003, although it was the manual used by AAM during the period in which CASA conducted the audits which led to the cancellation of Mr Brazier's aircraft maintenance engineer licence and the variation of the terms of the Certificate of Approval. Chapter 10 of that Quality Control Manual sets out the forms which AAM staff were to use in the course of conducting aircraft maintenance. Included amongst those forms are the following:
(a)form AAM9 — Airworthiness Directive Compliance Sheet; and
(b)form AAM10 — Additional Work Sheet.
Forms AAM9 and AAM10 are in exactly the same form as the Airworthiness Directive Sheet and the Additional Work Sheet used by AAM in the conduct of its maintenance on aircraft.
It was put to Mr Brazier in cross‑examination that the purpose of forms AAM9 and AAM10 was to certify completion of each stage of maintenance performed. Mr Brazier said that he did not necessarily agree with that proposition. Mr Brazier then said that certification of completion of stages of maintenance in accordance with Schedule 6 to the Regulations was carried out on a category certification sheet. He agreed that was form AAM1 in the Quality Control Manual. Mr Brazier conceded that it may have been wrong to use form AAM1 for certification of completion of stages of maintenance, but that is what happened. This is despite the fact that Mr Brazier agrees that he wrote the quality control system. Mr Brazier contends that, despite the fact that they contain provision for certification of completion of stages of maintenance, and a notation at the bottom of each page regarding certification, forms AAM9 and AAM10 were simply to be used to make certifications in the aircraft logbook.
I have difficulty in accepting Mr Brazier's explanation. I also have difficulty accepting the attempts by Mr Shipway and Mr Cannane to downplay the significance and importance of the Airworthiness Directive Sheet and the Additional Work Sheet. It is clear from the Quality Control Manual that it was intended that forms AAM9 and AAM10 form part of the system of maintenance for AAM. In particular, it is my opinion that forms AAM9 and AAM10 were intended and, in fact, were used to certify the completion of stages of maintenance in accordance with Schedule 6 to the Regulations. Those documents are specifically designed to enable a maintenance organisation to comply with sub‑paragraph 2.3(a) of Schedule 6. Furthermore, in most cases the columns headed "Compliance Details - Rectification Details" were completed and signed by a licenced aircraft maintenance engineer who affixed his licence number and the date upon which the work was completed in compliance with sub‑paragraph 2.5.
Mr Brazier's evidence that form AAM1 was the only document that provided for the certification of completion of stages of maintenance cannot be correct. Although the form provides for the signature of a licenced aircraft maintenance engineer in respect of various categories of maintenance, such a signature under each category does not satisfy the requirements regarding what must be included in a certification under paragraph 2.5 of Schedule 6 to the Regulations. Form AAM1 was clearly not designed for that purpose, nor is it capable of signifying certification of completion of each stage of maintenance.
Accordingly, I find that forms AAM9 and AAM10 were intended to be and, in fact, were used for the purpose of certifying completion of stages of maintenance as required pursuant to paragraph 2.1 of Schedule 6 to the Regulations.
Mr Brazier said that the work sheets were merely used to record the work which was conducted on a particular aircraft at a particular date, that information then being transcribed into the aircraft's logbook at the completion of the maintenance. It is, of course, correct to say that certification for completion of a stage of maintenance may be made in the aircraft logbook (Schedule 6, para 2.3(b)). However, if that happened, there was no evidence before me that the certifications in question were made in the relevant logbooks.
In Mr Brazier's defence, Mr Shipway pointed out that a number of Airworthiness Directives and defects entered on the Additional Work Sheets involved categories of maintenance for which Mr Brazier was not licenced. They were in the instrument, electrical and radio categories. Mr Brazier's licence did not extend to those categories and therefore it was said that he could not, in any event, have certified the completion of stages of maintenance in respect of any such items. I have no doubt that is correct. However, that is not to say completion of stages of maintenance performed by appropriately licenced contractors need not be certified by those particular licenced persons in either the AAM work sheets or aircraft logbooks. The problem for Mr Brazier is that there is no evidence of such certifications made by licenced aircraft maintenance engineers whose licences are endorsed in the electrical, instrument or radio categories. Mr Shipway suggested that Mr Brazier could rely on the category certifications made in form AAM1 in respect of electrical, instrument and radio categories. However, it is clear that the signatures in respect of those particular categories on form AAM1 are insufficient to constitute certification of completion of stages of maintenance. Form AAM1, according to Mr Shipway, appears to be a coordination certification document, rather than a document for certifying completion of stages of maintenance. I agree. Accordingly, this contention does not assist Mr Brazier with respect to this category of breaches.
Mr Shipway also stated that regarding a number of the Airworthiness Directives, there was no evidence that inspection in accordance with those Airworthiness Directives was due or applicable to the particular aircraft component fitted to the aircraft in question, despite the fact that those Airworthiness Directives were listed on the Airworthiness Directives Sheet. Although Mr Shipway's contentions were refuted by Mr Arnold in his evidence, for the purposes of assessing whether or not a breach of the Regulations has occurred, because there is no certification for the completion of the stage of maintenance comprising the Airworthiness Directive, it is my view that it makes little difference as to who is correct. If an Airworthiness Directive listed on an Airworthiness Directive Sheet was either not due or not applicable, it seems to me that it would be appropriate for the relevant licenced aircraft maintenance engineer to simply make such an annotation with a brief reason for doing so and then to certify that stage of maintenance as having been completed. In fact, in his cross‑examination, Mr Shipway said that, in respect of compliance with AD/AIRCON/4#5, he would have marked the Airworthiness Directive either N/A, i.e. not applicable, or "referred to Denniport" (a maintenance organisation which had provided to AAM an appropriately endorsed licenced aircraft maintenance engineer to complete maintenance in the electrical category).
Accordingly, in the absence of any appropriate logbook certifications, I have no hesitation in finding that the issue of maintenance releases by Mr Brazier, where certifications for completion of stages of maintenance were not entered in the work sheets, contravened reg 43(7)(a). However, the alleged breaches under this category, as set out in the show cause notice and the notice of cancellation of Mr Brazier's aircraft maintenance engineer licence, refer to failure to certify the completion of the stages of maintenance in the work sheets as contravening reg 43(13)(c). In order to contravene that sub‑regulation, Mr Brazier had to have been aware that maintenance had been carried out on an aircraft but had not been certified. In his evidence, Mr Brazier, while admitting he could not remember if certain Airworthiness Directives had been completed, was of the view that they were either not due or that they had been carried out. He also said that he relied on form AAM1 as certifying that stages of maintenance had been completed. Mr Brazier signed off on all of the forms AAM1 which were before the Tribunal. For that reason, I find that Mr Brazier was aware that maintenance had been carried out on aircraft, and that completion of that maintenance had not been certified in accordance with reg 42ZE. Accordingly, I find that Mr Brazier also breached reg 43(13)(c).
Known Defects not Recorded on Maintenance Release or Additional Work
Sheets/Improper maintenance not certified as having been completed/not in
accordance with approved data
Included in the work sheet package in respect of AAM job number 02/004A was a handwritten list of defects. The last item on that handwritten list is stated as "fuel tank RHS". Mr Brazier admits that that document appears to have been amongst the AAM work packages. Under cross‑examination, Mr Harvey asked him whether or not his handwriting was on that document. He replied "It doesn't appear to be". He was asked if he recognised his own handwriting and he said that he did. He was then asked if he recognised handwriting on that document or any handwriting on the particular page on which the handwritten defects were written, and he said that he did not. He was asked about the provenance of that document and he said that he did not know. He also said that he had only previously seen this document in the documents lodged by the respondent pursuant to s 37 of the Administrative Appeals Tribunal Act1975 (the T documents). He was asked if he had ever seen the document in his own work packages and he said that he did not recall seeing that document. Mr Brazier's statements denying that his handwriting was on that document are incorrect.
In re‑examination, Mr Anderson again drew Mr Brazier's attention to the handwritten list of defects and pointed out to him that the last entry, "fuel tanks RHS", seemed to be in different writing to the rest. Asked if it caused him to change the answers he had previously given, Mr Brazier said "That actually - that piece of writing with 'the fuel tank RHS' does appear to be reminiscent of mine". He confirmed that it did appear to be his writing. He suggested that he had not seen that when he previously looked at that document.
Under further cross-examination, Mr Brazier again became somewhat equivocal and said that the last entry appeared to be in his writing. He said that he could not be 100 per cent certain. When asked if that suggested that the list of defects came into his possession for the purposes of AAM job number 02/004A, Mr Brazier agreed. When I asked Mr Brazier for his explanation as to why he had previously indicated that his handwriting was not on that document, he simply replied "I honestly don't have any explanation for it. I don't know why, but it does appear to be my handwriting on there, yes." Mr Brazier's initial responses to the questions regarding whether or not he had made any entries on the handwritten defects sheet, followed what appears to be a somewhat reluctant admission that it may be his handwriting, does not inspire confidence in the truthfulness of his evidence.
CASA alleged that, although Mr Brazier became aware, on or before 7 January 2002, that there was a defect in the right‑hand fuel tank of aircraft VH‑XLB, he did not take any steps to enter that defect in the maintenance release or to have a leaking fuel cell replaced. It was not until 25 January 2002 that the right‑hand main fuel bladder was replaced.
Under cross‑examination, Mr Brazier was asked whether AAM stocked a proprietary product known as PR1422. Mr Brazier admitted that AAM did stock that product and that it was a sealant. When asked whether PR1422 sealant was used to repair the right‑hand fuel tank of aircraft VH‑XLB on or about 7 January 2002, Mr Brazier said he did not recall ever doing a repair to any fuel cell with PR1422. Mr Brazier offered that the sealant is used for a number of purposes, not just repairing fuel tanks. When asked whether, from time to time, it is used to repair fuel tanks, he said "I believe it has - it can be." Amongst the work package documents for AAM job number 02/004A is a form AAM4, which is entitled "Parts/Components Usage Sheet". There is an entry, under the date, 7 January 2002, Quantity 1 - part number PR1422. After examining that document, Mr Brazier admitted that PR1422 may have been used around that time. However, Mr Brazier did not believe it was fair to suggest that a temporary repair was made to the fuel tank and, some 18 days later, it was replaced. Mr Brazier denied that such maintenance work on the fuel tank had taken place. However, when asked at the show cause conference on 6 March 2003 whether, given that R1422 sealant was used for AAM job number 02/004A, and in the absence of any other explanation, Mr Brazier or AAM had conducted a repair to the fuel tank with that sealant, Mr Brazier had replied "It's a possibility."
CASA alleged that, by making a repair to the right‑hand fuel tank of aircraft VH‑XLB using PR1422 sealant, Mr Brazier made a repair in a manner that is not in accordance with approved data, a contravention of reg 42U. In so far as it is relevant, reg 42U provides:
42U A person must not modify or repair an Australian aircraft unless:
(a)the design of the modification or repair:
(i)has been approved under regulation 35; or
(ii)has been specified by CASA in, or by means of, an airworthiness directive or a direction under regulation 44; or
(iii)is specified in the aircraft's approved maintenance data; and
(b)the modification or repair is in accordance with that design.
The absence of any other explanation for the use of the PR1422 sealant for job number 02/004A, coupled with the fact that Mr Brazier noted that there was a defect in the right‑hand fuel tank, which was replaced some 18 days after the defect was noted, leads me to conclude that, on balance, the sealant was used to repair the right‑hand fuel tank on or about 7 January 2002. Necessarily, I do not accept Mr Brazier's evidence in relation to this matter.
CASA, in its notice of decision dated 5 May 2003 in respect of the Certificate of Approval, claimed that the Piper Chieftain Maintenance Manual specifically states that damaged or leaking fuel cells are to be removed and returned to the manufacturer for repair. That statement has not been refuted by Mr Brazier or by any of the experts who gave evidence on his behalf. In that notice of decision CASA also stated that no approval was given for the repair of the fuel cell with PR1422 sealant. Accordingly, I find that, by repairing the right‑hand fuel tank of aircraft VH‑XLB using PR1422 sealant, Mr Brazier has made a repair in a manner which contravenes reg 42U.
Following an engine replacement in the right‑hand position of aircraft VH‑OZM on 12 March 2002, Mr Brazier omitted to comply with Airworthiness Directive AD/LYC95, which required a turbocharger density controller adjustment to be made prior to flight, following completion of installation of the new engine. Mr Brazier certified for completion of maintenance, being the engine replacement, and he issued a maintenance release following the completion of that maintenance. Annexed to Mr Arnold's witness statement was a copy of Airworthiness Directive AD/LYC95. That Directive states that the turbocharger density controller is to be adjusted following the installation of an engine in an aircraft and that adjustment is to be checked regularly. Furthermore, the Directive states that the necessity to mandate a manufacturer's published maintenance procedure reflects an awareness of certain operators failing to appreciate the importance of carrying out such procedure. The procedure is conducted to ensure the engine is developing rated full throttle power.
At paragraph 7.6 of his witness statement, Mr Shipway said that it is clear that Mr Brazier overlooked the requirement to perform the adjustments as required by AD/LYC95 after engine installation. Mr Brazier conceded that he overlooked this item of maintenance.
In so far as it is relevant, reg 42ZP provides:
(1) A certification for the completion of maintenance carried out on an aircraft, aircraft component or aircraft material must not be made unless the maintenance was carried out in accordance with the approved maintenance data for the aircraft, aircraft component or aircraft material.
…
As the approved data for maintenance of the engine in question required that the turbocharger density controller adjustment be made in accordance with Textron Lycoming Service Instruction 1187G prior to flight following the installation of an engine, I find that Mr Brazier breached reg 42ZP.
After some 1.2 hours of operations following a periodic inspection, the aircraft VH‑XLB, on 30 July 2002, suffered the breakage of the elevator trim cable. It is common ground that had the periodic inspection been properly completed, it would have been apparent to the person inspecting the flight control cables that the elevator trim cable had deteriorated to a point where it posed an unacceptable risk to air safety and required replacement prior to further flight.
CASA alleged that Mr Brazier's failure to properly conduct an inspection of the flight control cables constitutes a breach of reg 282(4)(a). In so far as it is relevant, reg 282(4) provides:
(4) The holder of a licence, a certificate, an airworthiness authority or an aircraft welding authority shall not:
(a)negligently perform a duty that he or she is qualified to perform under the terms of the licence, certificate, airworthiness authority or aircraft welding authority; or
(b)issue a certificate that he or she is required or empowered to issue under these regulations without ensuring that all matters certified therein are true and correct in every material particular.
Mr Arnold said, in his witness statement, that, having regard to the place where the cable broke, and the condition of the cable, there could be no doubt that a proper inspection by Mr Brazier or his employees during the periodic inspection would have revealed that the elevator trim cable required immediate replacement. Further, Mr Arnold interviewed an engineer from Hawker Pacific who replaced the cable and was told that he would expect the area of the cable breakage to normally be inspected as part of a periodic inspection and that the area of the failure is uninhibited for inspection purposes. Mr Brazier, under cross‑examination, conceded that he had no explanation for the failure to detect the badly worn cable during the periodic inspection. He accepted that a proper inspection of the cable would have detected the defect before the cable broke. In evidence‑in‑chief, he said that he did not actually perform that inspection himself. That evidence is uncontroverted.
Although Mr Brazier did not personally perform an inspection of the elevator trim cable prior to it breaking, the employee who did so was acting under Mr Brazier's supervision. By failing to properly supervise that employee, it is my opinion that Mr Brazier negligently performed his duties as a licenced aircraft maintenance engineer and a Certificate of Approval holder thereby breaching reg 282(4)(a).
CASA also alleged that, by failing to perform a periodic inspection in accordance with the applicable provisions of the aircraft's approved maintenance data, Mr Brazier contravened reg 42V. Regulation 42V provides:
(1) A person carrying out maintenance on an Australian aircraft must ensure that the maintenance is carried out in accordance with the applicable provisions of the aircraft's approved maintenance data.
(2) Subregulation (1) has affect subject to the requirements of Division 5 ("Who may carry out maintenance").
Sub‑regulation 42ZE(2) provides that maintenance performed by employees of an employer who is the holder of a Certificate of Approval, is taken to be carried out by the employer and not by the employee. Mr Brazier certified for completion of maintenance in respect of the periodic inspection of the aircraft on 27 July 2002. That entry is made in the aircraft's logbook. It is common ground that the maintenance schedule that applied to this aircraft was the CAA Maintenance Schedule set out at Schedule 5 to the Regulations. The Table of Action in Schedule 5 includes, in a periodic inspection, a requirement to inspect the flight control system of bellcranks, push pull rods, torque tubes, cables, fairleads, turnbarrells and pulleys.
The necessary inference to be drawn from the fact that the badly worn trim cable was not detected during the periodic inspection is that the inspection was not carried out in accordance with the requirements for a periodic inspection set out in Schedule 5 to the Regulations. Accordingly, I find that Mr Brazier has breached reg 42V.
On 8 October 2002, AAM conducted maintenance on aircraft VH‑BYG which involved performing adjustments to the right‑hand engine turbocharger density controller. Mr Noble and Mr Nolan observed the performance of that maintenance.
Mr Nolan's evidence is that he observed Mr Metcalfe performing adjustments to the right‑hand engine turbocharger density controller. Mr Metcalfe was not, at that time, a licenced aircraft maintenance engineer and, accordingly, pursuant to reg 42ZC(4)(c), he was only entitled to carry out maintenance under the supervision of a person who holds an aircraft maintenance engineer licence covering the particular maintenance being conducted by that person. Mr Metcalfe was, therefore, conducting the adjustments to the turbocharger density controller under the supervision of Mr Brazier.
Mr Noble observed Mr Metcalfe performing the required adjustments without utilising the specialist equipment as required by the manufacturer and set out in Textron Lycoming Service Instruction 1187G. Mr Noble asked Mr Metcalfe about this, and his comment was that he thought it was up in the other hangar. Whether the equipment, in fact, was available was not established. Mr Noble also observed the pilot open up the throttle to full throttle and at the same time indicate to an assistant outside the aircraft to increase or decrease the boost on the engine. Mr Noble noticed at that time that the tachometer on that engine was not achieving full RPM (revolutions per minute) and it caused him concern to think that adjustments were being made to the boost, or the manifold pressure on that engine, without first obtaining maximum RPM. The reason for his concern was that, should the engine subsequently obtain its maximum RPM, for example by leaning the mixture, the engine would be over‑boosted and that could result in severe damage to it. Mr Noble explained that over‑boosting would cause detonation and, in a very short time, that would destroy the engine. The pilot operating the engine from inside the aircraft was not communicating with the engineer outside the aircraft attending to the adjustment to the engine. Mr Noble had observed that the throttle was at full forward position and it immediately indicated to him that there was an additional problem with that engine because it could not achieve maximum RPM. Mr Noble then asked Mr Metcalfe what temperature and compensation figures he was using to establish proper power as per the graph in the maintenance data for that engine and Mr Metcalfe said to Mr Noble "Oh, what was the air temperature?" It was obvious to Mr Noble that Mr Metcalfe had not considered the outside air temperature before the engine run up and attempted adjustment. No further attempts to readjust the engine were made and it was shut down.
Mr Brazier was not present during the conduct of this maintenance task. He arrived after the completion of the engine run and Mr Noble was advised that at the time of the engine run, Mr Brazier was in another hangar approximately 150 metres away. Under cross‑examination, Mr Brazier accepted that the failure to perform the turbocharger density controller adjustments in accordance with the manufacturer's specialised procedures constituted a breach of the Regulations. The only explanation offered by Mr Brazier for Mr Metcalfe's conduct was that Mr Metcalfe and his assistant may have been apprehensive as a consequence of being observed by CASA personnel. He suggested that CASA personnel are very intimidating to general aviation operators. Mr Brazier believed that that may have contributed to the errors made by Mr Metcalfe and his assistant. Mr Brazier admitted that he was not supervising Mr Metcalfe in the course of the engine run and associated turbocharger density controller adjustment.
Having regard to the evidence in relation to this incident, I have no doubt that Mr Brazier, as the person to whom the Certificate of Approval had been granted, contravened reg 42V.
On 1 November 2002, Mr Arnold and Mr Paul Simpson, also a CASA inspector, inspected aircraft VH‑XMA in the presence of Mr Daniel Ryan, who is the owner and operator of that aircraft. Upon checking the aileron and rudder trim control systems, Mr Arnold found that the free play in those trim tabs was outside the limits set by the aircraft manual. Mr Arnold's evidence was that the requirements set out in the aircraft's manual to test for free play in the trim tabs required the maintenance person, after centralising the trim wheel for either the aileron or rudder trim, to apply a force of approximately one pound to the trim tab in each direction and observe the free play. Mr Arnold said that he measured the free play with a steel rule and produced the steel rule at the hearing. Mr Arnold stated that Mr Simpson also checked the free play in those trim tabs and agreed that both were in excess of that specified in the aircraft manual. Mr Arnold then discussed that problem with Mr Ryan and suggested to him that the defect should be endorsed on the maintenance release. Mr Ryan complied with the suggestion.
On 31 October 2002, the day preceding the inspection by Mr Arnold and Mr Simpson, Mr Brazier signed a maintenance release for aircraft VH‑XMA, following the completion of a periodic inspection. Inspection of the trim tabs is an integral part of the periodic inspection, as set out in Schedule 5, reg 1(2)(e).
Mr Ryan, in his statement of evidence, said that he observed Mr Arnold conduct the test of the trim tab of aircraft VH‑XMA. He stated that it was his observation that Mr Arnold "just deflected the tabs in both directions and made an estimate of the free play without using the method set out in the maintenance manual." The clear inference to be drawn from this statement is that no measuring device, such as a steel rule, was used to measure the free play in the trim tabs in question. However, under cross‑examination, when asked what he observed Mr Arnold doing, he said:
He applied force with his hand in either direction on the trim tab, and I think from memory he may have had a tape and just took a general measurement of the travels, travel in the trim tabs.
This is clearly at odds with his statement. Mr Ryan, in his statement, also stated that he took advice from a licenced aircraft maintenance engineer, whom he does not identify, regarding the correct method to measure the deflection of the trim tab under this test, as prescribed by the manufacturer's manual. He then said that tests were carried out, but did not say by whom, on aircraft VH‑XMA and another Cessna 310 aircraft. He claimed that both tests produced results that were within the manufacturer's limits. Under cross‑examination, when asked to name the licenced aircraft maintenance engineer from whom he took advice, Mr Ryan said he could not exactly recall and that he had taken advice from several engineers. When asked who those several licenced aircraft maintenance engineers might be, Mr Ryan was, again, unable to provide names but suggested the names of, presumably, two maintenance organisations. Mr Ryan did not take advice from engineers who apparently operate at his hangar. The engineers from whom he sought advice were not present at the hangar where the aircraft was housed. They were present elsewhere on the airport grounds. Mr Ryan then said that he did not get anybody at all to come and do the actual test on the aircraft. He said that he conducted tests on aircraft VH‑XMA and also several other aircraft and that he did exactly what Mr Arnold did. He then claimed to recall what Mr Arnold had done. However, he did not have a licenced aircraft maintenance engineer conduct the test.
Under cross‑examination, Mr Arnold disagreed with Mr Ryan's observation that he did not conduct the test in accordance with the manufacturer's manual. Although the inspection was made the day after the maintenance release was issued by Mr Brazier, Mr Arnold's evidence was that the trim tabs could not, in his opinion, have moved from being within the prescribed limits to outside those limits within that time.
One of the exhibits tendered by Mr Brazier is an extract from the Cessna 310 Service Manual. In that manual the method prescribed for testing the free play in both the aileron and rudder trim tab requires the trims to be placed in the neutral position and the tab to be manually deflected, using approximately 1 pound force in each direction. The deflection from neutral is then measured in each direction and the sum of the two deflections must not exceed 0.050 inch. Mr Arnold's evidence is that that is the way the test was conducted and in his opinion, both tabs were well in excess of the tolerance prescribed in the service manual.
Mr Arnold and Mr Simpson are both licenced aircraft maintenance engineers. Mr Ryan is not. Further, although Mr Ryan said that he spoke with licenced aircraft maintenance engineers about this defect, he did not use a licenced aircraft maintenance engineer to conduct the test that would verify or reject Mr Arnold's claim. He was unable to identify the licenced aircraft maintenance engineers from whom he said he obtained advice about the conduct of the test. Furthermore, Mr Ryan cleared the defect from the maintenance release after conducting his own tests on the aircraft. Mr Ryan, because he is not a licenced aircraft maintenance engineer, is not authorised to clear defects from a maintenance release. For these reasons, I am of the opinion that the evidence of Mr Arnold is to be preferred to that of Mr Ryan. Accordingly, I find that Mr Brazier has breached reg 42ZP in that he certified for the completion of maintenance, being the periodic inspection, where maintenance was not carried out in accordance with the approved maintenance data for the aircraft.
Known defects not recorded on maintenance release or Additional Work Sheets and no evidence of maintenance having been completed
The work sheet package in respect of AAM job number 02/004A contains a handwritten list of defects which were not transferred to the Additional Work Sheets and for which no certifications of completion of maintenance are evident.
In his cross‑examination, Mr Brazier agreed that the handwritten document, setting out a number of defects, was a document in AAM's work package. The copy document presented to the Tribunal is certified as being a true copy of a document taken from AAM job number 02/004A. Furthermore, Mr Brazier admitted that he had made an entry on that document, being "fuel tank RHS". For that reason alone, it cannot be denied that Mr Brazier must have been aware of the defects set out on that handwritten document. This is despite the fact that, in cross‑examination, Mr Brazier attempted to deny ever having seen that document before it appeared in the T documents. His statements in that regard are plainly incorrect.
CASA alleged that the handwritten list of defects is what is commonly known in the aviation industry as a "snag list". CASA said that some aircraft owners or operators use a snag list to avoid compliance with reg 50, which requires an operator or flight crew member who becomes aware of the existence of a defect in the aircraft to make the appropriate endorsement on the maintenance release. However, CASA claims that a maintenance provider in the position of Mr Brazier cannot ignore defects, however they are reported to him. It is common ground between the parties that, as the maintenance provider, Mr Brazier could have endorsed the maintenance release with the defects set out on the handwritten "snag list". He did not do so. The subsequent work package for the aircraft and, in particular, the Additional Work Sheet, lists "RH main bladder US" as a defect. That is a reference to the right‑hand fuel tank of that particular aircraft. The certification of completion of that maintenance confirms that the right‑hand fuel tank was replaced on 25 January 2002. In the course of the show cause conference, the issue of the "snag sheet" was also discussed. It was put to Mr Brazier that the handwritten list was in the work package relating to job number 02/004A and he has not denied that. He did not deny that the handwritten list contained a list of defects.
As far as Re Taylor is concerned, the Tribunal in that case was confronted with a cancellation notice that omitted to mention the two offences of which Mr Taylor was previously convicted. It was conceded that the Secretary, in reaching his decision, had relied upon the convictions and that the requirements of reg 258 had been breached. However, the argument in relation to the ultra vires claim by Mr Taylor was about whether the notice pursuant to reg 258(1), which was the notice cancelling Mr Taylor's licence, gave full particulars of the facts and circumstances that constituted the ground or grounds for the cancellation of the licence as was required under reg 258(2). The case did not deal with the show cause notice itself. The Tribunal relied on the fact that reg 258(2) required "full particulars" to be provided of the facts and circumstances that constituted the grounds for the cancellation of Mr Taylor's pilot's licence. The use of the words "full particulars", according to the Tribunal, "seems to emphasize the extent of the obligation and to negate any interpretation admitting of lesser particularity". By way of distinction, reg 269(2) merely requires the grounds for the decision to be set out. This is plainly a less onerous requirement than that set out in reg 258(2). In any event, Mr Brazier does not complain that the reg 269(1) notices are in any way deficient.
CASA's failure to correctly recite the some of the regulatory provisions in its show cause notices does not, in my opinion, invalidate those notices. What is required to be set out in the show cause notices are facts and circumstances which, in CASA's opinion, warrant consideration being given to the variation, suspension or cancellation of Mr Brazier's licence and Certificate of Approval. This has been done in a comprehensive manner, which, in my view, satisfies the requirements of reg 269(3)(a).
As for the allegation that CASA failed to include a breach of reg 283(aa) in the show cause notice, it appears to be without foundation. Paragraph 7 of the show cause notice is in identical terms to paragraph 7 of the cancellation notice. Sub‑regulation 283(aa) is clearly stated in both documents.
Between the date of the decision made by CASA to cancel Mr Brazier's aircraft maintenance engineer licence and to vary his Certificate of Approval, and the date upon which the Tribunal reviewed those decisions, reg 269 was amended. With effect from 21 October 2003, reg 269(1A) provides as follows:
(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.
It is submitted on behalf of Mr Brazier that the Tribunal is bound to apply the law applicable at the date of review. Mr Brazier relies upon Re Costello and Secretary, Department of Transport (1979) 2 ALD 934 and Commonwealth of Australia and Another v Esber (1991) 29 FCR 324 in support of that proposition.
The Tribunal in Re Costello was required to deal precisely with this problem. After an extensive analysis of relevant cases, the Tribunal said (at 943):
…But where, as in the present matter, the law has been changed between the date of the administrator’s decision and the decision of this Tribunal, it seems to us that the question as to the law to be applied by the Tribunal must be resolved by having regard:
(i)to the nature of the decision under review; and
(ii)to the provisions of the legislation by which the change in the law is effected (cf Quilter v Mapleson (1882) 9 QBD 672).
The nature of the decision under review may require the Tribunal to consider the facts and circumstances before it in the light of the law at some anterior date in order to form an opinion as to the accrued rights or liabilities of the applicant (see, for example, s 132 of the Customs Act 1901 as to liability for customs duty). A subsequent change in the law will not affect the matter unless it is expressed to apply retrospectively (cf Quilter v Mapleson, supra). …
But where the nature of the decision under review does not involve a consideration of accrued rights or liabilities but rather involves an investigation whether the applicant has a present entitlement to the grant of a right or privilege, we have concluded that, unless the amending law otherwise provides we should apply the law as amended as at the date of our decision. …:
In Esber's case, the Full Court of the Federal Court approved the Tribunal's decision in Costello. Davies J said (at 326):
…
It follows that, in the ordinary course, a decision of the Administrative Appeals Tribunal will either expressly or by necessary implication speak as from the date of the decision. For this reason, a decision of the Administrative Appeals Tribunal ordinarily applies the law as at the date of the tribunal’s decision.
In some cases, however, it is necessary for the Administrative Appeals Tribunal to look at the state of the law and the state of the facts as at a prior time. For example, an entitlement to compensation under the 1971 Act or under the 1988 Act must be considered having regard to the state of the facts and the law as they existed when the claim for compensation was lodged. Such is also the case with respect to claims for pensions and benefits under the Veterans’ Entitlements Act 1986 (Cth). I speak, of course, only in general terms and without reference to specific statutory provisions which may affect a particular claim. In all these cases, subject to the expression of a legislative intent to the contrary, the Administrative Appeals Tribunal applies the law existing as at the date of the claim.
It is clear, therefore, that the Tribunal must apply the law as at the date of its decision, unless the decision under review involves consideration of accrued rights or liabilities or the legislation under consideration is said to have a retrospective effect.
There is no indication that the additional reg 269(1A) is to have retrospective effect. In fact, it is expressly stated to come into effect on 21 October 2003. Furthermore, the decision under review is a decision by CASA to cancel Mr Brazier's aircraft maintenance engineer licence and to vary his Certificate of Approval. In other words, the decision under review deals with Mr Brazier's existing or accrued rights granted pursuant to the licence and Approval in question. Therefore, in accordance with the authorities cited, the Tribunal must have regard to the law as it was at the date of cancellation of Mr Brazier's licence and variation of the Approval and not at the date of the Tribunal's decision. For this reason, Mr Brazier's submissions regarding the application of the new reg 269(1A) must fail.
The system of certification of completion of maintenance is a central plank in the Regulations dealing with the maintenance and repair of aircraft. It is essential to the safe operation of aircraft, as it is the only means by which it is possible to determine whether all maintenance required to be performed on an aircraft has been performed in accordance with the requirements of the Act and the Regulations. Without accurate certification of the completion of stages of maintenance by a licenced aircraft maintenance engineer in accordance with Schedule 6 to the Regulations or a system of certification approved by CASA, there can be no certainty that, when a maintenance release is issued for a particular aircraft, its state of airworthiness is accurately described on that document. The breakdown in a maintenance organisation of the system of certification of completion of maintenance is a very serious matter indeed. Maintenance releases for particular aircraft, issued by Mr Brazier on numerous occasions, did not reflect the true airworthiness state of those aircraft.
Perhaps more disturbing than the lack of attention to compliance with the Regulations is the fact that Mr Brazier maintained that he has done nothing wrong. He attempted to deflect criticism by suggesting that:
(a)the Airworthiness Directive Sheet and the Additional Maintenance Sheet did not form part of AAM's system of maintenance despite the endorsement on the bottom of each of those sheets and the fact that they were included in the AAM Quality Control Manual;
(b)because he did not hold appropriate electrical, instrument and radio endorsements to his licence and therefore could not certify for status of maintenance involving those categories of licence, he relied on appropriately qualified engineers to certify the completion of stages of maintenance and accepted their endorsements on form AAM1;
(c)some of the Airworthiness Directives Sheet and Additional Work Sheet were not documents which emanated from AAM even though they are in an identical form to the AAM documents;
(d)form AAM1 was used to certify completion of stages of maintenance; and
(e)completion of stages of maintenance in some cases were certified as having being completed in the aircraft's logbooks, although no copy of those logbooks were tendered in evidence.
Under reg 37A, Airworthiness Directives are issued where CASA considers that an unsafe condition exists, is likely to exist or is likely to develop. The conduct of maintenance in accordance with Airworthiness Directives is therefore essential for the safe operation of aircraft. Mr Brazier's failure to certify completion of maintenance in accordance with Airworthiness Directives is an omission that could have had serious safety consequences.
Similarly, Mr Brazier's failure to certify the completion of maintenance on items set out on Additional Work Sheets may have had serious consequences. It is true that Mr Brazier recalls, on a couple of occasions, that he completed the work, despite the absence of certification of that fact in the work sheets. However, the fact that there is no certification of completion of that maintenance coupled with the subsequent issue of a maintenance release is a significant breach of the Regulations. It is insufficient for Mr Brazier merely to recall having completed the maintenance. If a licenced aircraft maintenance engineer were allowed such omissions, the effectiveness of a system of certification of completion of maintenance on aircraft would be significantly diminished.
Mr Brazier also purported to certify completion of maintenance in respect of an Airworthiness Directive dealing with the air‑conditioning system of aircraft. The conduct of that work, in my opinion, exceeded the limits of the work specified in the endorsement on Mr Brazier's licence. Although the consequences of Mr Brazier conducting this test may not be as serious as other breaches of the Regulations, it nevertheless discloses that Mr Brazier is not careful about operating within the limits of his licence and any endorsements thereto.
There are five identified occasions on which improper maintenance was conducted on aircraft either by Mr Brazier, or by an employee of AAM for whom Mr Brazier was responsible. All of these incidents give rise to serious safety concerns.
As far as the right‑hand fuel tank on aircraft VH‑XLB is concerned, Mr Brazier dealt with that incident in an unsatisfactory manner. His initial denials about having made the handwritten entry on the defect list, followed by his reluctant admission that he had made the entry is indicative of a person only prepared to admit his errors when forced to do so. Furthermore, despite substantial evidence that unauthorised repairs were made to that right‑hand fuel tank by using a sealant, and despite the fact that Mr Brazier admitted in his show cause conference that it was possible that the sealant was so used, he attempted to deny that to be the case before the Tribunal. Mr Brazier's handling of the fuel tank problem and his subsequent evidence in relation to it are cause for grave concern.
On two occasions, Mr Brazier breached the Regulations in respect of a turbocharger density controller adjustment. In respect of aircraft VH‑OXM, he failed to ensure that an adjustment was made to the turbocharger density controller prior to flight, following an engine replacement. On the second occasion, CASA officers observed Mr Metcalfe, who was meant to be supervised by Mr Brazier, incorrectly performing adjustments to the turbocharger density controller of aircraft VH‑BYG. The purpose of correct adjustment to the turbocharger density controller is to ensure that the engine in question is developing rated full throttle power. This is critical in the event of an engine failure immediately following take‑off. As far as aircraft VH‑OZM is concerned, Mr Brazier simply accepts that he overlooked the item of maintenance, although he attempted to play down its importance. In respect of aircraft VH‑BYG, Mr Brazier has offered no reason for the lack of supervision of Mr Metcalfe. Nor has he explained why Mr Metcalfe was not using the specialist tools required to perform the adjustment. Mr Brazier suggested that Mr Metcalfe and his assistant might have been apprehensive because CASA personnel were observing them. Once again, Mr Brazier has attempted to deflect responsibility for these breaches upon other persons. In my opinion these incidents evidence carelessness and lack of supervisory control by him.
On 30 July 2002, after only 1.2 hours of operation following a periodic inspection, aircraft VH‑XLB suffered a breakage of the elevator trim cable. Mr Brazier was not able to explain to the Tribunal why previous periodic inspections of the elevator trim cable had not revealed signs of wear, which would have been apparent had the inspection been properly conducted. Although Mr Brazier may not have personally performed a flight controls and cables check on that aircraft, he was responsible for supervising the engineers who did. Fortunately, the cable broke while the aircraft was on the ground. Clearly, serious safety problems could have arisen had the breakage occurred in flight. Mr Cannane suggested that breakage of the elevator trim cable in flight would not make the aircraft uncontrollable in flight or make the aircraft crash. Although I accept that, I find that this was a serious breach of the Regulations by Mr Brazier and that it had the potential to lead to very serious consequences had the breakage occurred while the aircraft was airborne.
CASA made a number of allegations regarding failure to perform maintenance within time or, overlooking to perform maintenance entirely. In particular, it was admitted by Mr Brazier that, on at least four occasions, he signed a maintenance release in respect of aircraft VH‑XLB although maintenance required to be performed in accordance with an Airworthiness Directive requiring replacement of the elevator downspring and link remained outstanding. Mr Brazier conceded that this was a mistake. This was a serious breach that had safety implications and it is of grave concern that this particular Airworthiness Directive was repeatedly overlooked.
The incident regarding the right‑hand pneumatic pump on aircraft VH‑XLB gives rise to serious concerns about Mr Brazier's integrity as a licenced aircraft maintenance engineer. The evidence is that the pneumatic pump was in fact changed some 10 days and 30.2 hours after it was due for replacement. Mr Brazier again attempted to deflect responsibility for this delay by stating that Mr Somerville must have entered the incorrect date in the aircraft logbook. The evidence is that the maintenance was probably carried out at the later date. Nevertheless, Mr Brazier suggested that, while errors may have been made and there may have been some "sloppy housekeeping" on his part, he did not falsify any records. It is difficult to escape the conclusion that Mr Brazier, when he signed the maintenance release on 5 April 2002, must have been aware that the right‑hand pneumatic pump had not been changed. His conduct in dealing with this matter raises serious doubts about his fitness to hold an aircraft maintenance engineer licence and a Certificate of Approval.
It also appears that Mr Brazier allowed the constant speed units on aircraft VH‑XMA to exceed their overhaul or replacement times. The same can be said about the left‑hand and right‑hand dry air pumps on aircraft VH‑XMA. Failure to comply with the time requirements for component change can create a serious safety issue.
There are of course a number of other breaches of the Regulations that are not as serious as those described above. However, when put together with the more serious breaches, they disclose a pattern of behaviour which amounts to a far more serious situation than merely systemic problems, which is the main thrust of Mr Brazier's argument.
CONCLUSIONS
Mr Brazier's principal argument is that the majority of the alleged breaches of the Regulations, the Act and the Civil Aviation Orders resulted from systemic problems within the AAM organisation. However, as the evidence demonstrates, this is simply not correct. Certainly, as far as the more serious breaches of the Regulations are concerned, the responsibility lies squarely with Mr Brazier. In some cases he was merely careless and in others, it appears as though he has bowed to pressure exerted upon him by Mr Dalton of Cirrus Airways. In doing so, he has preferred his own business interests over his responsibilities as a licenced aircraft maintenance engineer. As a consequence, there is no doubt in my mind that safety was compromised on a number of occasions. It is quite fortunate that no accident occurred. Mr Brazier failed to adequately supervise his staff and failed to ensure that he and his staff adhered faithfully to the regulatory requirements.
In addition, given the way in which Mr Brazier gave his evidence to the Tribunal, particularly in relation to the handwritten defects list; the right‑hand fuel tank defect in aircraft VH‑XLB; and the right‑hand pneumatic pump in aircraft VH‑XLB, serious questions arise regarding his integrity. The way in which those matters were handled by Mr Brazier is most certainly not what one would expect from the chief engineer of an aircraft maintenance organisation. Mr Brazier's attempts to characterise form AAM1 as the document on which stages of maintenance were certified shows either a disregard for or a lack of understanding of what is required by paragraph 2.5 of Schedule 6 to the Regulations. That form was never designed for the purpose of certifying completion of stages of maintenance. Despite the fact that this was put to him squarely, and it must have been obvious to him that form AAM1 could not accept the detail required by paragraph 2.5, he refused to acknowledge that form AAM1 could not possibly have been used for that purpose.
Evidence was given that Mr Brazier engaged the services of Mr Cannane to review AAM's system of maintenance and that new forms and procedures had been put in place which would correct any problems that had arisen in the past. While this is a step to be welcomed, I am more concerned about Mr Brazier's ability to implement and to oversee a system of maintenance which complies strictly with the Act, the Regulations and Civil Aviation Orders. I am not confident that Mr Brazier has the experience or demonstrated capacity to supervise his staff, nor the ability to recognise situations of conflict between his business interests and duties as a licenced aircraft maintenance engineer and a Certificate of Approval holder.
Given the findings I have made on the evidence, it is my opinion that Mr Brazier's breaches of the Regulations and the Act are of a sufficiently serious nature to warrant the action taken by CASA in accordance with reg 269(1)(a). In coming to this conclusion, I have taken into account the financial impact that this will have on Mr Brazier. However, CASA has taken that factor into account in its decision, by allowing Mr Brazier to participate in AAM under the supervision of Mr Duffy, who is now the Chief Engineer, and to simply vary the conditions attached to the Certificate of Authority. In my opinion, that is a reasonable compromise which will minimise the financial impact on Mr Brazier, while at the same time ensuring that maintenance is conducted to the very high standards demanded by the Regulations, thus ensuring the safety of the flying public.
It was submitted on behalf of Mr Brazier that cancellation of a licence or authority should only be taken where there are consistent and repetitive breaches of the Regulations. The authorities cited in support of this proposition are Re Murfet and Secretary of Department of Aviation (1984) 5 ALN N494; Re Flynn and Department of Aviation (1987) 13 ALD 279; Re Von Nida and Secretary, Department of Aviation (1985) 8 ALN N265; and Re Griffith and Civil Aviation Authority (1994) 34 ALD 554.
Re Murfet was an appeal against the cancellation of a crop dusting pilot's commercial pilot licence. The grounds for cancellation were a number of low flying incidents and a failure to comply with undertakings not to engage in such conduct. However, there is nothing in the reasons for decision which so much as suggests that cancellation of a licence should only be taken where there are repetitive breaches of regulations.
Re Flynn was a case where the applicant was refused a private pilot's licence on the basis that he was the holder of a previous Australian pilot licence which had been cancelled, and because he was not a fit and proper person to hold such a licence. There is nothing in the reasons for decision to support the proposition that cancellation should occur only in cases of consistent and repetitive breaches.
Re Von Nida was also a case where the applicant's commercial pilot's licence was suspended pending investigation whether that licence should be varied or cancelled. Mr Von Nida’s licence expired before the investigation was completed and he then applied for a new licence to be granted to him. That application was refused on the basis that the applicant was not a fit and proper person to be granted a pilot's licence. His licence was never cancelled. On that ground alone, that case is distinguishable from the matter at hand. It does not support Mr Brazier's contention regarding the circumstances under which a licence may be cancelled.
Re Griffith was a case where the applicant held a commercial helicopter pilot licence and a commercial pilot licence. The Civil Aviation Authority [as it then was] varied those licences. It did not cancel them. It cancelled Mr Griffith's chief pilot approval and the air operator's certificate of GRIF‑AIR Pty Ltd. Mr Griffith withdrew his applications for review of both of the cancellations at the commencement of the substantive part of the hearing of the matter. Accordingly, this case cannot support the proposition put on behalf of Mr Brazier.
In any event the evidence discloses consistent and repetitive breaches of the Regulations.
CASA, in reliance on reg 269(1)(d), also alleged that Mr Brazier is not a fit and proper person to have the responsibilities, and exercise and perform the functions and duties, of a holder of a aircraft maintenance engineer licence or a Certificate of Approval. It is well established that the expression "fit and proper person" must be interpreted having regard to the particular legislative context in which it appears (Maxwell v Dixon [1965] WAR 167, Re Taylor and Department of Transport (1978) 1 ALD 312; Re Repacholi and Civil Aviation Safety Authority (2003) 75 ALD 312) and Re Griffith (cited above). The question which the Tribunal needs to answer is whether or not Mr Brazier is a fit and proper person to have the responsibilities, and to exercise and perform the functions and duties, of the holder of an aircraft maintenance engineer licence and a Certificate of Approval.
I agree with what the Tribunal said in Repacholi regarding the breadth of matters that may be taken into consideration in coming to a conclusion as to whether a licence holder is a fit and proper person for the purposes of reg 269(1)(d). In particular the Tribunal said (at 314):
…In the tribunal's opinion it is appropriate, in determining whether a person is a "fit and proper person" for the purpose of deciding whether to cancel that person's licence under reg 269(1) of the regulations, to have regard to a wider range of considerations that is permissible when determining whether a person is a "fit and proper person" for the purpose of deciding whether to issue a licence to that person under reg 5.09(1) of the regulations. In the latter case it appears, from reg 5.09(3) of the regulations, that the category of matters that may be taken into account is limited to matters that relate to the safety of air navigation. In the former case, however, it is appropriate that consideration be given not only to matters relating to the safety of air navigation but also, inter alia, to the licence holder's past record of compliance, or non‑compliance, with regulations during the currency of their licence as indicative of the likelihood of their complying, or not complying, with the regulations in the future, and of their respect, or lack of respect, for the regulations and civil aviation regulatory legislation generally.
In my opinion, the evidence disclosed that Mr Brazier, by his conduct, demonstrated that he is prepared to compromise air safety for the sake of business expediency. He has also demonstrated a lack of respect for the regulations and the aviation regulatory legislation generally. He has not accepted responsibility for breaches of the regulatory regime and has attempted to deflect responsibility to other persons. Clearly he was the person responsible for signing off on the completion of stages of maintenance, for certifying completion of maintenance on aircraft on most occasions and for the issue of maintenance releases. His denial of any knowledge of the handwritten defect list, followed by a subsequent, reluctant admission that he had made an entry on that list does put his integrity into question. Mr Brazier's handling of the right‑hand fuel tank problem on aircraft VH-XLB also demonstrates his lack of respect for the Regulations. His inability to supervise his staff in conducting maintenance, particularly critical maintenance such as the adjustment of a turbocharger density controller, does not instil confidence that Mr Brazier, under pressure to complete maintenance by an aircraft operator, will not again succumb to the temptation to simply sign off on maintenance which had not been properly completed. Accordingly, it is my view that Mr Brazier is not a fit and proper person to have the responsibilities, and exercise and perform the functions and duties of a holder of an aircraft maintenance engineer licence or a Certificate of Approval.
For the reasons set out above, the Tribunal affirms the decision under review.
I certify that the two hundred and thirteen [213] preceding paragraphs are a true copy of the reasons for the decision herein of
Mr E. Fice, Member
(sgd) Catherine Thomas
Clerk
Dates of Hearing: 15—17 October 2003
20—21 November 2003
Date of Decision: 26 March 2004
Counsel for the applicant: Mr J. Anderson
Solicitor for the applicant: Messrs Carneys
Counsel for the respondent: Mr I. HarveySolicitor for respondent: Mr A. Anastasi, of Civil Aviation Safety Authority
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