Fawcett and Anor and Civil Aviation Safety Authority
[2008] AATA 407
•19 May 2008
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2008] AATA 407
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2007/3106
GENERAL ADMINISTRATIVE DIVISION ) 2007/3122 Re DOUGLAS FAWCETT; and
CENTRAL AVIATION PTY LTD
Applicants
And
CIVIL AVIATION SAFETY AUTHORITY
Respondent
DECISION
Tribunal Senior Member, Mrs Josephine Kelly Date19 May 2008
PlaceSydney
Decision The appropriate decision is to set aside the reviewable decisions and vary both the licence and the Certificate of Approval.
I propose to impose three conditions on the Certificate of Approval pursuant to CAR 30(3). The first is that the Company is to employ a suitably qualified LAME, other than Mr Fawcett, and who is acceptable to CASA, to be responsible on a full-time basis for the supervision and certification of all maintenance activities undertaken at Central Aviation. As this is a term of the existing stay, there should be no difficulty in this condition taking immediate effect. The second condition, is that the Company is to employ an appropriately qualified person acceptable to CASA to undertake audits of the Company's system of quality control at six monthly intervals until such time as CASA determines that such audits are not necessary. The third condition is that the Company employ a technical records clerk to maintain the maintenance data necessary for the Company's operations.
Pursuant to CAR 31(3), I propose to impose as a condition of the AME licence N11156 a requirement that Mr Fawcett undergo and satisfy a theoretical and practical examination to test his competency to hold an AME licence within six months of the date of this decision.
I grant the parties a period of 14 days in which to provide agreed terms of the decision I have indicated.
.....................[sgd].........................
Senior Member
Mrs Josephine Kelly
CATCHWORDS
CIVIL AVIATION – Aircraft Maintenance Engineer Licence – Certificate of Approval -cancellation – whether failure of duty with respect to any matter affecting safe navigation or operation of aircraft – whether fit and proper person - Partenavia aircraft – rudder hinge bracket failure – corrosion – audits conducted – whether failure to detect corrosion – held corrosion not detectable - Cirrus aircraft – engine failure – failure to carry out functional fuel inspection – failure to adhere to Cirrus Service Information Directive – held failure of duties with respect to safe navigation / operation of aircraft – held fit and proper persons to hold licence – held fit and proper persons to hold Certificate of Approval - reviewable decision set aside and varied – conditions imposed on licence and Certificate of Approval
Civil Aviation Act 1988, s 9A
Civil Aviation Regulations 1988, regs 30, 31, 269, Schedule 5
Civil Aviation Safety Authority v Coburn (1996) 24 AAR 389
Re Brazier and Civil Aviation Safety Authority [2004] AATA 313
Re Keen and Airservices Australia (AAT 12239, 25 September 1997)
Re Richards Aviation Services v Civil Aviation Safety Authority (AAT, 26 November 1996)
Re Snook and Civil Aviation Safety Authority [2003] AATA 285
Shi v Migration Agents Registration Authority (2007) 158 FCR 525
REASONS FOR DECISION
19 May 2008 Senior Member, Mrs Josephine Kelly 1. The applicants in these proceedings, Mr Douglas Fawcett and Central Aviation Pty Ltd (the Company), respectively seek the review of decisions made by the Civil Aviation Safety Authority (CASA) cancelling Mr Fawcett's Aircraft Maintenance Engineer Licence (Proceedings 2007/3106) and the Company's Certificate of Approval (Proceedings 2007/3122). The notice advising Mr Fawcett and the Company of the decisions was dated 6 July 2007. Mr Fawcett is the Managing Director and Chief Engineer of the Company.
THE ISSUES
2. The issues that arise in relation to each of Mr Fawcett and the Company are:
a) Did they fail in their duty with respect to any matter affecting the safe navigation or operation of an aircraft? (Civil Aviation Regulations 1988 (CAR) 269(1)(c)); and/or
b) Is each of them a fit and proper person to have the responsibilities and exercise and perform the functions and duties of a holder of such a licence or certificate? (CAR 269(1) (d)).
3. CAR 269 relevantly provides:
Variation, suspension or cancellation of licence, certificate or authority
(1)Subject to this regulation, CASA may, by notice in writing served on the holder of a licence or certificate or an authority, vary, suspend or cancel the licence, certificate or authority where CASA is satisfied that one or more of the following grounds exists, namely:
…
(c) that the holder of the licence, certificate or authority has failed in his or her duty with respect to any matter affecting the safe navigation or operation of an aircraft;
(d) that the holder of the licence, certificate or authority is not a fit and proper person to have the responsibilities and exercise and perform the functions and duties of a holder of such a licence or certificate or an authority;
…
4. Two incidents are at the centre of these proceedings. The first occurred on 7 August 2005 when the top rudder hinge bracket on a Partenavia aircraft VH-IYB (the Partenavia aircraft) failed. The pilot noticed the failure after landing. The critical inquiry in relation to that incident is whether, as a matter of fact, the state of the rudder bracket on the Partenavia aircraft on 6 January 2005 was such that Mr Fawcett, and therefore the company, ought to have determined that it required replacement or repair when Mr Fawcett carried out a 100 hour inspection on that aircraft. He issued a maintenance release on 6 January 2005.
5. The second incident is the admitted failure by Mr Fawcett to detect that a steel blanking cap had not been replaced on the engine of a Cirrus aircraft VH-HYY (the Cirrus aircraft) which consequently suffered engine failure and crashed. The pilot and passenger were seriously injured.
6. In addition, CASA pointed to inadequacies in the systems and procedures of the company and Mr Fawcett’s maintenance practice found during audits undertaken in 2004 and 2005.
BACKGROUND
7. The following is not in contention. Mr Fawcett commenced an apprenticeship as an aircraft maintenance engineer after leaving school in 1969. He has worked for his father's company, Fawcett Aviation Pty Ltd, which later became the Company, since 1973. The documentary material shows he gained his Aircraft Maintenance Engineer Licence in 1982. (Mr Fawcett stated he obtained it in 1972). He first qualified in the engine category, and in about 1993 he obtained his Group 1 airframe endorsement. He became the chief engineer of the company in about 1982, when his father semi-retired and handed over the reins of the business to him. Throughout this decision the term “LAME” will be used for individuals who hold such a licence.
8. Mr Fawcett is also the director of a company called Illawarra Flying School Pty Ltd which, unsurprisingly, carried on business as a flying school. For reasons unrelated to Mr Fawcett, CASA cancelled that company's Air Operator's Certificate in about 2004. It holds the lease of the hangar at Bankstown Airport from which the Company operates, and owns two Piper aircraft and two Cessna 152 aircraft which it leases to people with varying degrees of success. I accept that there is very little for Mr Fawcett to do in respect of those activities.
MR FAWCETT’S CASE
9. Mr Fawcett's case, essentially, is that what occurred before the Cirrus incident was not sufficiently serious to trouble CASA, and that the Cirrus incident, of itself, is not sufficient to justify cancellation.
10. In respect of the Partenavia matter, Mr Fawcett says that in January 2005 he inspected the upper rudder hinge bracket visually, while it was in place on the aircraft and it passed inspection. It is not disputed that there was no requirement to disassemble the hinge bracket.
11. The Cirrus incident arose as follows. The engine had been taken away and rebuilt following a propeller strike. If a propeller hits the ground it is assumed that there might be crankshaft damage through the engine. The engine is bulk stripped, all of the suspect parts are inspected, and the engine reassembled with replacement of parts where necessary. It can then be put back into service. On investigation by CASA, it was found that a steel blanking cap had not been fitted to the aircraft engine when it had been installed following the overhaul. Hawker Pacific, the organisation that had overhauled the engine had fitted a red plastic cap, designed as a temporary cap to stop the ingress of dust and contaminants into the engine.
12. Mr Fawcett’s company, and Mr Fawcett himself, when refitting the engine, failed to notice the temporary red blanking cap and therefore did not refit a metal cap. Mr Fawcett accepts responsibility for that failure, but says in mitigation, or at least by way of explanation that, ordinarily, Hawker Pacific Pty Ltd (Hawker Pacific), a company which undertakes bulk stripping and examination of aircraft engines, would have replaced that blanking cap to the port when it overhauled and rebuilt the engine, but did not do so.
13. The port in question is used to test the fuel pressure. Once the fuel pressure is tested, one blanks, or caps off the port with a metal cap and it is thereafter sealed and not used in the operation of the engine. Mr Fawcett said that he expected that Hawker Pacific would have performed the fuel pressure testing and would have replaced the cap over the port with a metal cap. Mr Fawcett considered his involvement to be limited to refitting the engine as a complete unit. He also pointed to the fact that the Cirrus Airframe Parachute System did not deploy and therefore the damage and injuries to the pilot and passenger were worse than they might otherwise have been.
14. He says that, in view of 38 years of service as either an apprentice or licensed aeronautical maintenance engineer with, effectively, an unblemished history except for these two incidents, one of which he says involved no dereliction of duty on his part, the appropriate decision was not to cancel his licence. Although he was guilty of an oversight on one occasion which had extremely unfortunate consequences, it was improper and unjust that he should be effectively deprived of his livelihood by reason of that incident. Other consequences include the loss of employment for five people, an inability to meet ongoing contractual obligations to carry out maintenance, and the decline in the value of the business. Mr Fawcett also asserted that there is a shortage of LAMEs.
15. Mr Fawcett pointed to various steps he had taken to address CASA's concerns raised in the audit of 2005. He accepted that it was not unreasonable for CASA to cancel or suspend his licence for a period of time but argued that it was unreasonable to cancel the Company's Certificate of Approval. Cancellation of the Certificate of Approval would impose unreasonable hardship on its employees, including himself, the Company's customers and the customers of those companies. The Company can operate with a temporary or replacement engineer.
CASA’s CASE
16. CASA's case in essence was that the inadequacies of the Company's operations, and in particular its lack of a proper system of quality control disclosed by the audits carried out in 2004 and 2005, and the seriousness of the Partenavia and Cirrus incidents require the reviewable decisions to be affirmed.
17. CASA contended that Mr Fawcett failed during the 100 hourly inspection in December 2004 / January 2005 to detect the corrosion which was likely to have been evident in the Partenavia aircraft rudder hinge bracket and bolt, or failed to exercise appropriate judgment as to the need to investigate the presence and extent of the corrosion that was likely to have been evident in those components of the aircraft. CASA also argued that the condition of the Partenavia aircraft when inspected by airworthiness officers in August 2005 was such that it had not been kept in good repair by Mr Fawcett and the Company.
CONSIDERATION
The Extent of the Company's Operations and Mr Fawcett's Experience
18. The extent of the Company's operations and Mr Fawcett's experience are relevant matters in this case. In cross-examination, Mr Fawcett said that the Company came into existence somewhere in the 1980s, but did not have a bank account until 2005. He said:
It was a very small operation. It was only maintaining the flying school aircraft and a couple of private planes..
He said there were very few transactions.
19. I find, on the evidence, that until the closing down of the flying school, 2005 the Company was maintaining eight or nine aircraft in total, and up until then, had done little maintenance for other people.
20. An illustration of the small scale of the operation,is that until about 2005, monies owing to the Company were paid to Illawarra Flying School Pty Ltd. Mr Fawcett had a very vague recollection of what happened before 2005 about invoicing, receipt of monies, and banking, although he acknowledged that he was responsible for all those things. He recalled a customer paying by credit card, and as the Company had no facility to take credit cards, the customer paid Illawarra Flying School Pty Ltd, which did. Mr Fawcett's case was that he is the sole director of the Company and Illawarra Flying School Pty Limited. He thought he was the corporate secretary of both companies.
21. From 2004 when the flying school closed, Mr Fawcett actively sought business. During the year ending 20 September 2005, the Company had a list of 16 aircraft it was servicing, although it actually serviced only 13 of them. At some stage, one company approached Mr Fawcett saying they had three aircraft. That number has now grown to 10. At the time of hearing, Mr Fawcett said that the Company was carrying out periodic and unscheduled maintenance of 25 aircraft. He thought that his livelihood depended on maintaining those 25 aircraft. He said that although that sounded like a lot of aircraft, it was not necessarily a lot of maintenance. Some of the aircraft were not doing much flying.
22. I conclude from the evidence that although Mr Fawcett has been a LAME for many years, his experience was confined until the closing down of the flying school, to the small number and few types of aircraft operated by the Illawarra Flying School Pty Ltd, and a few aircraft owned by others. The Partenavia was operated by the flying school from 1995 until sold in late 2004 or early 2005, because, Mr Fawcett said, it was doing little flying. The aircraft's log books indicated that the majority of maintenance release inspections from 1996 until its sale, had been carried out by the Company.
23. I also conclude that since the closure of the flying school in 2004, Mr Fawcett has expanded the Company's business to the point where it is maintaining 25 aircraft. He has worked on some aircraft with which he was unfamiliar, including the Cirrus.
Audits and Safety Trend Indicators (STIs)
24. CASA emphasised inadequacies in the Company's operation which were identified during audits in 2004, and then following the Partenavia incident in 2005. Reference was also made to an inspector's reporting "Identified issues relating to internal auditing" during safety trend indicator assessments (STI) in 2002 and 2003.. An STI is not an audit, but is rather a management tool to gather information, to determine a risk profile and to determine the allocation of resources. STI’s can, and in this case did, involve a site visit of the organisation. Mr Simpson, a CASA officer and LAME, did not know whether the information in the STIs had been communicated to Mr Fawcett..
The September 2004 Audit
25. A scheduled audit of the Company was carried out on 22 September 2004. The scope of the audit was "Full Systems", however the audit method was stated to be a sampling exercise and did not purport to be a total systems review. It noted:
The sampling provides a snapshot of the system and any deficiencies detected could point to a systemic problem, requiring a total systems review by the operator. The operator/certificate holder as outlined below must address deficiencies and problems identified in the audit findings.
26. The audit report observed that the Company was a small, one-man operation involved in the maintenance of light singles and some light twin engined aircraft, most of which were owned and operated by Illawarra Flying School Pty Ltd and Chieftain Aviation, which was a linked entity.
27. A number of findings were made:
…
The operator must review internal audit procedures and establish a more effective audit system.
…
Stores and Distribution
…
Parts inspected in hangar were sampled and found not to comply with the procedures manual in so far as identification and traceability. In particular tags were not being used as described.
28. In relation to the stores and distribution finding, Mr Fawcett said at hearing that there were probably seven or eight aircraft in the hangar. They were either aircraft he was maintaining or they are being stored there. There are usually only one or two aircraft being worked on at a time. There are parts scattered throughout the hangar, with which he is not concerned.
29. The audit report continued, relevantly:
Data and Documentation
…
Data and documentation found to be deficient in some areas… The range is limited and does not appear to cover some aircraft maintained by the organisation however none of the data sources appeared to be supported by any formal amendment service and the management relies on informal copying or borrowing of other data libraries for updates.
30. Mr Fawcett accepted that this was correct.
31. In relation to Tooling and Equipment, the audit identified two inadequacies in relation to infrastructure: a cylinder compression leak rate tester did not meet requirements of AD/ENG/4 Amdt 9 and no borescope was held at the premises. There were three calibrated tools, all of which were in calibration, but two did not have proper serial number identification and did not have the calibration due date identified on them. At the hearing Mr Fawcett said that he bought a new leak rate tester and noted on it the due date for calibration, and that he bought a borescope but "probably" not until he actually needed it.
32. The audit report also stated:
In view of the limited scope of work performed and the attendant low perceived risk to aviation safety the auditor has elected to advise deficiencies in the body of the audit report rather than issue RCAs and observations.
An “RCA” is Request for Corrective Action, which is issued by CASA. ??????? CASA submitted that Mr Fawcett did not implement any changes to address findings made in the September 2004 audit. Mr Fawcett said that he believed that Mr English, the lead auditor, told him that it was up to him whether and how to implement the matters raised in the report.
33. I prefer the evidence of Mr English on this matter. He said that he told Mr Fawcett that he had to correct the deficiencies identified before the next audit to avoid more serious action. Perhaps Mr Fawcett was confused because Mr English told him that he was not going to issue any RCAs in order to reduce the burden of paperwork placed on him. I find that, if Mr Fawcett did anything in response to the 2004 audit, it was only purchase a new leak rate tester and borescope.
August 2005 - Failure of Aircraft Component on the Partenavia
34. The failure of the upper rudder hinge bracket of the Partenavia aircraft occurred on 7 August 2005, 39.8 hours of service time and seven months after Mr Fawcett issued the maintenance release (MR) on 6 January 2005, which was the last periodic inspection before the failure. A maintenance release effectively revalidates the aircraft's certificate of airworthiness.
35. From the available evidence, it seems that, from the time of sale in January 2005 until the failure occurred in August, the aircraft had been operating at Goolwa in South Australia. On 8 August 2005, Airworthiness Inspectors, including Mr Fechner, inspected the failed bracket and took a number of photographs of some parts of the failed bracket, the bolt, and the aircraft at Goolwa. They concluded that the failure was caused by corrosion which would not have occurred since the last MR issued, and would have occurred over some time, possibly more than 12 months. They considered that an adequate inspection at the last MR issue inspection should have revealed some anomalies, and referred to CASA Schedule 5, Section 1 (2) (e). They also commented that if the hinge bracket had been regularly lubricated, as required by CASA Schedule 5, Section 1 (2) (h), then it is likely that the corrosion may not have commenced. They also made a number of observations about the general condition of the aircraft which tended to indicate that it had not been maintained to a particularly high standard.
36. It is not in dispute that there was no requirement in the maintenance schedule to overhaul the bracket or remove it at the 100 hourly inspection. Mr Fawcett rejected the suggestion that, as at 6 January 2005, the rudder attachment and hinge bolt were visibly corroded. He maintained that when he looked at it everything was in proper order.
37. The statement of facts and contentions, which Mr Fawcett agreed he had assisted in preparing, stated that an explanation for the failure was that "strong winds [were] placing excessive load on the bracket and bolts". Mr Fawcett did not recall that statement and agreed that he did not have an explanation for the failure in August 2005. He did not recollect whether or not he had ever removed the steel bolt to check for corrosion. He did not think that such maintenance would necessarily be in a maintenance release or a log book; it might be in the job sheet. He did not know whether he would have put it on the maintenance release or in the log book.
38. Mr Fawcett said that he would expect the hinge bolts to be cadmium plated to stop them rusting. He said that, on visual inspection, you can see the head and tail of the bolt only. However, when he took off the small plate covering part of the upper hinge bracket to look, the bolt was covered in paint. To inspect the upper hinge bracket he had to go up a ladder. He had a distinct recollection of doing that during the inspection. Having earlier said that it was painted, later Mr Fawcett could not recall the colour of the bolt when he inspected it or whether it was painted but said "I just know that it didn't appear to have anything wrong with it".
39. In re-examination he said that you would usually expect a brand new bolt to be gold in colour. In his experience they did not retain that colour for long. Even spanners can have an effect on the coat of plating. On a 100 hour inspection, if he saw a bolt which did not appear gold in colour although it would have been gold when new, that factor alone would not necessarily cause him to replace it.
40. I accept Mr Fawcett's evidence, which is supported by that of Mr McCallum, that he had replaced a different part on the Partenavia, a Torque Tube Support, because of corrosion, on 15 December 2004 as part of the 100 hourly inspection. The tagged part which had been removed was in evidence. The defect report for this part was submitted on 30 September 2005, which I infer was in response to the September 2005 audit.
41. Mr McCallum gave evidence that he also inspected the rudder fittings on the Partenavia on the same day that he helped Mr Fawcett install the Torque Tube Support and could remember seeing no abnormality. He had climbed the ladder that was in place. A light was also set up. He took a torch with him. He is an aircraft maintenance engineer who trained as an engine fitter and cross-trained on airframe and instruments in the Royal Australian Air Force. He is not a LAME. He keeps two aircraft at Bankstown airport, including a Gypsy Moth and a Cessna. He repairs the Cessna aircraft under Mr Fawcett's supervision. He is also a Licensed Pilot.
42. Mr Harvey, counsel appearing for CASA, was critical of Mr McCallum's evidence. In particular he pointed to the fact that Mr McCallum had provided a reference for Mr Fawcett some months before the hearing, in which he made no mention of having inspected the relevant fittings. I found Mr McCallum to be a straightforward and honest witness. I accept his explanation that, when he provided the reference, he was aware of the problem with the Cirrus aircraft, however, it was only a few days before the hearing that he was speaking with Mr Fawcett who mentioned that the bracket on the rudder of the Partenavia had broken, and he responded that he had been there when Mr Fawcett was working on it.
43. Against the evidence of Mr Fawcett and Mr McCallum, who inspected the rudder hinge in situ on the aircraft, is the evidence of Mr Fechner who inspected the aircraft and parts of it after the bracket failure. When Mr Fechner and Mr Goodwin inspected the aircraft at Goolwa, the rudder was missing. They spoke to two people at the airfield who told them where it was likely to be. A person who Mr Fechner thought was an agent for the owner identified the rudder as that belonging to the aircraft. It appeared to be the correct size and shape and had a matching paint scheme to the aircraft, which was the only Partenavia there. Two pieces of the upper bracket were missing. The person who had assisted them with finding the rudder was unaware of their whereabouts. Mr Fechner was not requested to quarantine or secure the parts. He said that the matter appeared to be fairly straightforward with no unresolved issues as to the cause of the failure. They had no discussion or communication with the pilot of the aircraft.
44. Mr Fechner's opinion was that the condition of the bolt at the 100 hourly inspection would have warranted further investigation. It is a critical area. He said that if you saw a bolt like this and pulled it out and saw the amount of wear and corrosion, the likelihood of other corrosion would need to be investigated. You would clean the bracket and all the pain off and have a look. That would have involved removal of the rudder and a proper inspection. He accepted in cross-examination that the shank of the bolt would have been visible on the inspection but said that the amount of war would likely give some audible play, even if you did not actually physically feel the play. He maintained that the corrosion and wear on the bolt indicated an inappropriate level of maintenance in terms of inspection and lubrication. He also pointed to other aspects of the aircraft's condition which indicated a poor standard of maintenance.
45. Mr Fechner did not accept that cadmium plated components, such as the bolt in this case, are not replaced notwithstanding the loss of the gold appearance..
46. Mr Fechner stated in his affidavit that Service Bulletin 62 for the Partenavia stated that corrosion of the rudder hinge bracket had been reported, and that care should be taken when performing routine inspection of that item. In cross-examination he agreed that that document did not require that the hinge be disassembled. Although he accepted that the Service Bulletin was not mandatory, he thought it inappropriate to ignore it because it was not mandatory.
47. The registered operator of the Partenavia aircraft, a Class B aircraft, had elected the CASA maintenance schedule, Schedule 5 of the CAR. The operator must ensure that the periodic inspection set out in Part 2 of Schedule 5 is done at the time required. The relevant periodic inspection time of a class B aircraft other than a private aircraft is 100 hours time-in-service or 12 months from the time the certificate of airworthiness was issued whichever occurred later. Part 2 does not require overhaul or replacement of any aircraft component, rather it requires actions such as inspection, checking, cleaning and lubrication, which must be carried out in accordance with approved maintenance data (CAR 42V).
48. Paragraph 2.7 of Part 2 requires that an inspection of an aircraft component under the schedule must be "a thorough check made to determine whether the thing will continue to be airworthy until the next periodic inspection". In this case, Mr Fawcett had to determine whether the component would remain airworthy for the next 100 hours' service. In forming that opinion, Mr Fawcett had to have regard to the relevant airworthiness information including any information, data or recommendations of the aircraft's or component's manufacturer. He also had to have regard to the nature and conditions of operation of the aircraft and anything else that would affect, or have affected, the airworthiness of the component.
49. Schedule 5 requires that Mr Fawcett inspect the hinge brackets and "lubricate as necessary". The maintenance manual for the aircraft refers to what, when and how lubrication is to be carried out and which items are to be inspected to ensure continuous airworthiness. They reinforce the requirements of Schedule 5.
50. A LAME cannot issue a maintenance release if of the opinion that the aircraft is in a damaged condition or is defective. Such damage or defect, i.e. corrosion in this case, must be remove or replaced before the maintenance release can be issued.
51. Mr Fawcett was not asked directly whether he had seen Service Bulletin 62 and did not refer to it in his statements.Essentially, the issued was raised in Mr Fechner's affidavit and Mr Fawcett gave no direct response. During cross-examination, Mr Fawcett said that Partenavia Service Bulletins were available on the internet in recent years, and before that he was made aware of the existence of service bulletins by the Partenavia airworthiness directives applicable to the aircraft and obtained them. He had subscribed to CASA's amendment services for airworthiness directives. He said that that between 1996 and 2005 he referred to the latest data but also said that he could not say that he accessed the service bulletins on the internet every single time.
52. I infer, from the failure to address the matter directly, that Mr Fawcett could not give evidence that he had had regard to the Service Bulletin when he carried out the 100 hourly inspection. Mr Fawcett also gave no evidence about lubricating the rudder during the 100 hour service. However, I note that during the audit carried out after this incident, Mr Simpson inspected the log books and noted that Mr Fawcett had certified compliance with the inspection requirement.
53. I had before me evidence about the failure mechanism of the upper rudder hinge bracket from Mr Stewart-Jones, consultant to the aviation industry, particularly in the sphere of design of aircraft, and from two metallurgists, Mr Hooker and Mr Hole. None of those gentlemen inspected the actual pieces of the aircraft, which were not available, but based their opinions on photographs taken when Mr Fechner and Mr Goodwin inspected the aircraft and the available pieces of the rudder hinge bracket and a bolt in August 2005.
54. The upper hinge was comprised as follows. Two lugs extended from the rudder at 90 degrees. A metal attachment extended at 90 degrees from the aircraft and fitted between those lugs. The attachment was held in place by a bolt fitted through the lugs and the hole in the attachment. Both lugs failed. The failure was perpendicular to the operating stresses.
55. The three expert witnesses agreed that it would be necessary to inspect the failed component to determine the cause of the failure. Mr Stewart-Jones said that without such examination:
it can only be conjecture based on the photographs provided.
Mr Hooker said that:
the mechanism of initiation and growth of this time dependant fracture could only be assessed from direct examination of the parts using a microscope
and Mr Hole said:
To positively confirm the failure mechanism, close examination of the affected components would be required.
56. Mr Hooker and Mr Hole considered that the failure was caused by fatigue corrosion under normal operating stresses. Mr Stewart-Jones thought the failure may have been caused by intergranular corrosion, which:
could reduce the strength of the component and cause it to fail below the aircrafts' normal design loads..
57. Mr Hooker also stated that the corrosion and wear damage to the bolt and the associated red rust plume in the area of the hinge joint was consistent with fretting corrosion, which is common in assemblies with relative movements between bearing surfaces, in the absence of lubricant.
58. Mr Hole noted, consistently with Mr Fechner's observations, that there appeared to be rust deposited on the surface of the lug hole. The attachment bolt exhibited severe corrosion and no remnants of the cadmium plating were obvious. In his opinion, the cadmium layer on the bolt was a "sacrificial" layer to protect the bolt against corrosion. It is depleted before there is corrosion of the bolt. The lugs, which were made of an alloy, were originally protected by zinc chromate paint underneath the normal paint. The maintenance manual required lubrication of this part, but from the photographs there appeared to be no lubrication. There appeared to have been no protection, and substantial wear damage in the hinge bracket.
59. According to Mr Hole, it was likely that corrosion pitting of the bolt hole may have initiated a fatigue crack in one or both of the lugs in the hinge bracket. If that were the case, the continued operation of the aircraft over a period of time would have propagated the fatigue crack to final fracture. Very microscopic increments in crack growth would occur on each operational load. The corrosion would have occurred a long time before the actual fatigue crack initiated. Fatigue cracks do not propagate very fast – usually in the hundreds, perhaps up to 1,000 hours
60. In Mr Hole’s opinion, the lack of cadmium coating on the bolt, and the extensive corrosion damage to the bolt and the rudder hinge fitting, indicated that corrosion had been progressing for a long time and had not occurred within the period between January and August 2005.
61. In cross-examination, Mr Hole agreed that corrosion is time-dependent and depends on the environment, including whether salt is in the atmosphere, whether the aircraft is flown at altitudes less than 10,000 feet and whether or not it is kept in a hangar. In response to the proposition that you would expect corrosion to occur faster in an aircraft that is in a saltpan environment than one that is not, Mr Hole agreed that the rate of corrosion would be greater, but said: "Yes but … I am talking about years".
62. Mr Hole did not agree that the cadmium coating found on steel bolts installed on an external part of the aeroplane aircraft usually lasts less than about 12 months. He has never performed maintenance services on aircraft.
63. I also had in evidence articles about corrosion, including reference to corrosion in a Piper aircraft which was not evident 12 months before a consequential failure occurred, and another which emphasised the difficulty in finding it.
64. Mr Weeks, the regional manager of CASA at Bankstown who recommended the cancellation of Mr Fawcett's licence and the Company's Certificate of Approval, was cross-examined about the checks a pilot would do before flying. He is a licensed pilot. This arose because there were pre-flight inspection certifications made after Mr Fawcett issued the Maintenance Release on 6 January 2005 and before the failure occurred. He said that a pilot does a daily inspection and certifies it. As a pilot he agreed that he conducted rigorous inspections looking for maintenance issues, and if he had found excessive play in the rudder he would have reported it or not flown the aircraft. He had experience on a Partenavia aircraft. He had inspected the rudder from the ground. He could see the upper hinge but not touch it. He considered that there would have had to be significant play in the upper rudder hinge before it would have been discerned.
The 2005 Audit
65. In response to the failure of the upper hinge bracket of the Partenavia aircraft, CASA carried out a special audit of the Company at Hangar 276, Bankstown airport, on 15, 20 and 21 September 2005.
66. In a letter to the Company dated 19 September 2005, Mr Simpson, Senior Airworthiness Inspector of CASA, gave a maintenance direction pursuant to CAR 38 to:
cease all maintenance activities associated with the Central Aviation Pty Ltd Certificate of Approval number 360..
The direction was to remain in force until CASA was satisfied that the Company was capable of complying with conditions of the Certificate of Approval, and in particular that it had current and amended data for the maintenance it intended performing, and that the three RCAs issued on the same day had been acquitted.
67. Mr Fawcett said that he complied with the maintenance direction. He said that he actually had the most recent and correct data for Cessna 150 aircraft. The evidence shows that following correspondence from Mr Fawcett, CASA lifted that part of the restriction four days later. At the same time Mr Fawcett put in place means of obtaining data for other aircraft.Importantly, he said that he was maintaining hardly any aircraft at that time.
68. By the end of the audit, 13 RCAs and two Safety Alerts had been issued, and four Audit Observations made..
69. It is useful to quote from the summary set out in the audit report:
Central Aviation Pty Ltd is a one man show and on average only carried out 2 to 3 periodic inspections per month. It was clear from the audit that the organisation has not placed a great deal of importance on correcting deficiencies identified by CASA in the past, and as a result have paid little attention to improving their practices and procedures.
70. I infer that the last comment refers to various findings in the 2005 audit report that the Company had not acted on findings made in the 2004 report.
71. Mr Fawcett prepared responses to the CAR 38 direction and the RCAs. He received assistance from Mr Cherian George, a LAME, to prepare the responses and the amendments of the procedures manual before submitting them to CASA. The outcome was that the CAR 38 direction was lifted by letter from Mr Simpson dated 20 October 2005.
72. Mr Fawcett said in his letter to CASA that he has used Mr George as a consultant since that time. He said: "I still consult with him because he has a lot more knowledge than I do." However, Mr Fawcett’s oral evidence was that he does not use Mr George very much because Mr George is always very busy. I conclude that Mr Fawcett engaged Mr George at the time of audit to assist him to deal with the RCAs and the CAR 38 direction but has not consulted him to any extent since then.
73. The register of appointed persons as a LAME is found in Chapter 6 of the Company’s Procedures & Quality Control Manual. Mr Fawcett said that the LAME's listed are people who are prepared to do some work for the Company if and when called upon.
74. At the time of the hearing Mr Fawcett said that he had a full amended data system and so was not using another company's information, which he had been at the time of the 2005 audit. He said:
I wouldn't say I wouldn't use them, They're very knowledgeable people … if I needed some help in something, I wouldn't hesitate to go and speak to them there. Michael Chadwick … has a lot more knowledge than I'll ever have..
75. Mr Fawcett had acquired the more comprehensive data since 2005 when he has had more aircraft. That had been done by the technical records clerk that the Company had employed. A letter from that clerk, Mr Swinnerton, was in evidence. He was employed from May 2007.
76. Mr Fawcett acknowledged that he was aware that, when CASA undertook the 2005 audit, it was concerned that the Company had not placed a great deal of importance on correcting deficiencies previously identified in the 2004 audit. He also acknowledged that CASA's view was that the Company had paid little attention to improving its practices and procedures. He said: “Well, in the paperwork department things needed to be tidied up”
77. CASA found that the procedures covering stores were deficient and required further development. Mr Fawcett said that he had hardly any stores because when he needed a new tyre, for example, he would go out and buy it, write on the job sheet and put the tyre on the aircraft. As he put it: "It was a very small organisation". He also considered that the parts in the hangar had some order and were not "scattered around", and that it was no part of the Company's procedures manual to identify parts that had nothing to do with the Company.
78. In an email dated 22 September 2005 to a superior officer, Mr Simpson wrote that 13 RCAs and four observations were issued:
With the exception of the RCA issued relating to data, the findings were of a relatively minor nature, and with a bit of consolidated work on behalf of Central Aviation could be corrected easily. In our view, the general findings and our observations reflect an organisation that is not well educated in regulatory matters but seem willing to learn and correct issues.
79. There was also a comment that the Company had not been provided with enough input from CASA to recognise that there may be some issues with the way they operate.
80. Mr Simpson wrote that the deficiencies revealed in the 2005 audit did not hold weight for pursuing further regulatory action, particularly in light of the previous compliance history. He also commented that it is difficult to apportion blame to the Company in relation to the Partenavia incident because Mr Fawcett claimed he inspected the bracket, and work sheets for the 100 hourly inspection showed a signature for that. In cross-examination, Mr Simpson agreed that, without extensive metallurgical evaluation, it is impossible to categorically state that the Company failed to inspect the bracket adequately. He also agreed that it is impossible to state that the aircraft was in the same general condition depicted in the photographs taken on 8 August 2005 at the date of the maintenance release in January of that year, although he did not think the aircraft would deteriorate that much in nine months, no matter where it was.
81. Mr Simpson's recommendation was:
Given the audit didn't reveal major difficulties other than the data, it's my recommendation no further regulatory action be taken at this time.
The Period From 30 October 2005 to October 2007
82. Between September 2005 and August 2006 Mr Fawcett said that he had no employees, but could contact the various LAMEs listed in a register in the Company's Procedures / Quality Control Manual.
83. A Certificate of Approval was re-issued to the Company on 9 August 2006. Mr Fawcett said that he had requested a change to permit him to maintain a composite aircraft – the Cirrus aircraft. Mr Fawcett's aircraft maintenance engineer's licence did permit him to perform maintenance on the engine but not the airframe of the Cirrus aircraft. It was not part of Mr Fawcett's maintenance role to review the functionality of the Cirrus parachute deployment system (CAPS) which failed when the aircraft crashed.
84. The owner of the Cirrus aircraft, Mr John Weymouth, was one of the LAME's listed in Mr Fawcett's register.
85. Mr Fawcett had not really had much to do with the Cirrus type of aircraft. An entry in the Aircraft Maintenance Certification Log for VH-HYY shows that Mr Fawcett signed an entry dated 12 September 2006 certifying that he had carried out ”AO CON/60 A1, AO/CIRRUS/5” and 24 month inspection as per the maintenance manual. He could not remember what he actually did during that inspection.
86. On 6 October 2006 he signed off on the engine maintenance and co-ordinating certification for a 100 hourly inspection in accordance with the log book statement. A further entry of the same date sets out details of what he did, including "SID97-3B c/out nil defects". He agreed that he looked up and carried out the instruction called up by that service instruction.
87. On 18 October 2006, following a propeller strike, Mr Fawcett removed the propeller and the engine for a bulk strip to be carried out. Mr Weymouth arranged for another organisation to collect it for the bulk strip but, for some reason, it could not carry that out and eventually the bulk strip was carried out by Hawker Pacific. It was approximately three months from the date the engine was removed from the hangar where Mr Fawcett works until its return. Mr Fawcett understood that he was to reinstall or refit the engine in the aircraft. The engine maintenance certification log shows that Mr Fawcett signed off on 24 January 2007. It noted:
Engine fitted into VH-HYY, in accordance with Cirrus maintenance manual, and ground run carried out.
The refitting took several days. He was assisted by Mr Weymouth, who bolted the engine into the engine mounts connected the various hoses, and "so forth". He accepted that it was his responsibility to certify for the maintenance.
The Cirrus Accident 5 February 2007
88. Although in correspondence following the accident Mr Fawcett stated that the Australian Transport Safety Bureau (ATSB) had not determined the cause of the accident, at the time of the hearing the parties accepted that the cause of the engine failure was that a red plastic blanking cap rather than a steel blanking cap had been in place on the test port for the unmetered fuel pressure.
89. The Australian Transport Safety Bureau Preliminary Aviation Occurrence Report 200700361 made relevant findings:
Examination of the aircraft engine at the accident site found that a steel blanking cap from the engine’s fuel supply system was missing… That cap covered a test port on a threaded ‘T-fitting’ that led to the engine fuel control unit. The test port allowed for the checking of un-metered fuel pressure from the engine driven fuel pump. The cap was normally fastened to the T-fitting and a troque applied to it to ensure that it remained securely fastened. A small, red, plastic, blanking cap, of a similar size to the missing steel cap, was found beneath the engine at the accident.
…
Engine Testing
The engine was removed from the aircraft and taken to an appropriate test facility where it was examined prior to attempting engine runs. The test port on the fuel system threaded T-fitting was connected to a line with a cap secured to the end. The engine was then started and operated normally with the test port line capped. However, each time the cap was removed the, the engine stopped within 3 seconds.
90. The aircraft had accumulated approximately 7 hours time in service after the engine had been refitted by Mr Fawcett on 24 January 2007 until the accident occurred. The evidence is clear that Mr Fawcett failed to perform the test of the aircraft's fuel system as required by the manufacturer's approved maintenance data and that, if he had carried out that test, he would have become aware that a red plastic blanking cap was in place and not a steel blanking cap.
91. I accept CASA's argument that Mr Fawcett failed in his duty as a LAME in a fundamental respect and in a manner which had significant and devastating consequences.
92. During an interview on 19 February 2007 with Mr Roger Chambers, an Airworthiness Inspector of CASA, Mr Fawcett said that the Company had only recently commenced the maintenance on the aircraft and had only performed a 50 or 100 hour inspection. In a further interview later the same day with Mr Chambers, Mr Simpson and Mr Gary Arnold, Senior Airworthiness Inspector, Mr Fawcett did not dispute the following:
a) he had certified for the installation of the engine on VH-HYY;
b)he had not performed the Teledyne Continental Motors Services (TCM) Services Information Directive (SID) 97-3 as required by the Cirrus SR22 Maintenance Manual;
c)he did not have the required test equipment to perform the TCM SID 97-3; and
d)he could not confirm that he had a copy of the TCM SID 97-3 at the time of the engine installation.
93. A certification was made by Mr Fawcett in the Aircraft Logbook for VH-HYY on 24 January 2007 that "Engine fitted and propeller installed I.A.W. M.M and checked serviceable". He also made a certification in the Engine Logbook for TCM 10-550-N Serial Number 917232 on the same day that "Engine fitted into VH-HYY I.A.W. Cirrus M.M. and ground run carried out". No certification was made in the work package, aircraft logbook or engine logbook for the completion of the TCM SID 97-3.
94. Mr Fawcett confirmed, when giving evidence, that he told Mr Chambers that he felt that he had sufficient time for the task and had paid sufficient attention to ensuring that it was completed correctly. He had not used a check list for the engine installation. He had two CDs containing the Cirrus SR20 and SR 22 maintenance manuals and a hard copy version of the TCM series maintenance manual for the engine type fitted to the aircraft.
95. From the evidence, including Mr Fawcett’s written responses to two "show cause" letters from CASA , I conclude that Mr Fawcett expected Hawker Pacific to do the test required by TCM SID 97-3, which they had, and that he simply did not understand that he had the responsibility to comply with TCM SID 97-3 when refitting the engine to the aircraft. He did not see the red cap on the port. He said that if he had known that there was a plastic plug on it, he would have made sure that a metal plug was placed there.
96. During his oral evidence, Mr Fawcett did not maintain that there was a distinction between refitting an engine to an aircraft and initially installing the engine, which he had maintained earlier. He acknowledged that he did not have SID 97-3 or the required tooling in his possession when he installed the engine. In his first reply to CASA on 2 April 2007, Mr Fawcett stated that SID 97-3 was available freely online and he had a copy on his laptop computer, and that the tools prescribed in that document were available to him at short notice from a number of sources at the airport.
97. He also agreed during oral evidence that, contrary to his assertion in his response that he had certified that the inspection was done in accordance with the Cirrus SR22 Design Maintenance Manual 2(aa), the log and copies of the work package he provided to CASA did not contain such a certification. That is, he did not certify that he had completed that TCM SID 97-3. Chapter 71-00, section 4 of the Cirrus SR22 Aircraft Maintenance Manual provides at Item (2)(aa): "Perform Functional Inspection of Fuel Injection System in accordance with" TCM SID 97-3.
98. Mr Fawcett remembered that, when Hawker Pacific returned the engine, the log book did not come with it and, when it did come, it had not been filled in and so he sent it back to be completed. He could not recall seeing a tag on the engine when it was returned from Hawker Pacific providing various cautions about installing the engine in accordance with the relevant manuals, conducting various tests and in large red type: “ADJUSTMENT OF THE ENGINE FUEL SYSTEM MUST BE ACCOMPLISHED PRIOR TO THE RELEASE OF THE AIRCRAFT TO SERVICE". However, he had seen similar tags in the past.
99. In his response to the first show cause letter, Mr Fawcett proposed to appoint a part-time technical records clerk he would work with to ensure the maintenance data was up to date and to amend the Company’s Procedures Manual to reflect that change. He also proposed to hire another person to audit the log books and internal reporting process to ensure compliance with the CAR. At the time of hearing he had employed the clerk but not the auditor. Mr Fawcett had conducted internal audits in August 2007.
100. Mr Arnold is an Air Safety Auditor (Airworthiness) employed by CASA at Bankstown airport. I accept Mr Arnold's evidence. The relevant technical data of the TCM requires that a steel pressure blank is to be installed in the open fuel port following pressure testing of the fuel system. Mr Arnold's opinion was that if Mr Fawcett had conducted the fuel system testing in accordance with TCM SID 97-3C, and replaced the red plastic dust cap with the correct steel pressure blank, the engine would not have failed on 5 February 2007. His opinion was also that given the location of the test port at the top of the engine assembly and the conspicuous colour of the red plastic cap, the failure to identify and replace the red cap indicated a failure to conduct a proper post-installation inspection. I note that the Hawker Pacific log entries for the bulk strip referred to SID97-3B, however no issue was taken that it was relevantly the same procedure as required by SID 97-3C...
101. Mr Mills, Technical Manager of Hawker Pacific in Queensland gave evidence by telephone. He had no personal knowledge of bulk strip and overhaul of the Cirrus engine. He confirmed that Hawker Pacific had run the engine and had accessed the subject port to do the unleaded fuel pressure test. If there had been a steel cap over the unleaded fuel pressure test port, it would either have been refitted or placed in a box and delivered to the customer on the return of the engine. He said that many things had to be done when the engine was returned before aircraft can fly.
102. During final oral submissions, Mr Anderson initially sought to suggest that if Hawker Pacific had done their task normally, they would have refitted a steel blanking cap. He criticised the calling of Mr Mills who had no personal knowledge of the bulk strip of the engine. When challenged, he said that it was the explanation for Mr Fawcett's failure to comply with SID 97-3. I find that was indeed that case but, as set out above, it was a fundamental failure by Mr Fawcett to understand his duties as a LAME which causes me considerable concern.
Certificate of Approval
103. In essence, CASA's argument for cancelling the company’s Certificate of Approval is that Mr Fawcett is the sole director of the Company, and his conduct of the business is haphazard, ad hoc and characterised by a lack of system. He has exhibited a failure to understand the importance of quality control and a procedures manual.
104. Mr Weeks gave evidence supporting the cancellations. He has been a pilot and testing officer of pilots. Mr Weeks described the response by CASA to Mr Fawcett as "graduated". He considered the audit reports that were provided to Mr Fawcett as being of the motivational and information kind and the CAR 38 direction as a direct intervention in the interest of safety. He did not agree that a condition on the Certificate of Approval requiring the Company to employ a person such as Mr George as its Chief Engineer and that relevant certifications be done by such a person for a given period, would provide the level of assurance he required. There is no such statutory position as Chief Engineer. In his opinion, Mr Fawcett has exhibited a pattern of behaviour where he has given undertakings that have not been met. CASA has to achieve a safety outcome and has to look at procedures and mechanisms that will effectively manage the exposure levels of risk. The Cirrus incident was the final straw.
105. Mr Weeks referred to Professor Reason's model of aviation safety. According to Mr Weeks, Professor Reason is the world's leading expert on this topic. The Professor has put forward "the Swiss cheese model," which describes the layers of defences that an organisation has to put in place in a systemic fashion to ensure that they manage their risks to minimise them and ensure a safety outcome. If the holes line up, a latent organisational or system failure will be able to get through and become an active failure:
which is what we've seen in the Cirrus accident, an active failure as a result of inadequate safety defences within Central Aviation and Mr Fawcett's work practices, safety culture and safety systems.
106. Seeing Mr Fawcett in the witness box reconfirmed Mr Weeks’ view that Mr Fawcett may not be unwilling, but is unable to understand the importance of a safety system approach and of having a safety culture in place that ensures that his work practices, his procedures, and knowledge of his own procedures manual, and the manufacturer's maintenance data. The CARs make it clear that the responsibility for discharging the duties of a Certificate of Approval holder rests with the management of the organisation.
107. Mr Weeks sought to emphasise that it was not only the failure of the Partenavia hinge bracket that caused concern, but also the generally poor state of repair of the aircraft apparent in the photographs.
CASA's Relationship With Industry
108. In recent years CASA has changed the approach it takes to regulation of civil aviation. To summarise from a press release from the Chief Executive Officer of CASA dated 11 October 2006, which was tendered as an exhibit at hearing, CASA must not be seen as a "nanny-regulator" and cannot and should not take complete responsibility for safety outcomes. People in the industry must accept that they have the core responsibility for managing their own safety risks. They must identify their own safety risks and develop systems to manage those risks. The following is illuminating:
With aviation organisations being required to manage their own safety risk, CASA will take an even harder analytical look at prospective industry participants during the entry control process.
At the other end of the regulatory spectrum, CASA will continue to remove organisations or people from the industry who are unable or unwilling to accept their safety responsibilities.
CONCLUSION
109. I accept the submission made by CASA that safety of aviation is paramount in my consideration of the decisions under review (s 9A of the Civil Aviation Act 1988). However, contrary to CASA's case, I am not persuaded that either the failure of the upper hinge bracket of the Partenavia aircraft or Mr Fawcett's failure to carry out the unleaded fuel pressure test on the engine of the Cirrus aircraft was attributable to Mr Fawcett's failure to have the relevant maintenance data available or to have regard to it. He recollected inspecting the upper-hinge bracket of the Partenavia and the log record supported that. He did not test the engine of the Cirrus because he believed, correctly, that Hawker Pacific had done so. His failure in that case was, unfortunately, a fundamental failure to understand his role.
Overall Impression of Mr Fawcett
110. Mr Fawcett did not present well as a witness. However, I did not find him to be an untruthful witness. He suffers from a hearing impairment, and is an unsophisticated person whom I felt was overwhelmed by the circumstances in which he found himself. He did not have a good memory. He is clearly not good at paper work. He is a practical tradesman. Although he has been a LAME since 1982, his experience has been limited. Until about 2005 he worked on a relatively small number and few types of aircraft operated by the Illawarra Flying School Pty Limited, and some aircraft owned by others. From 2005 he developed his maintenance business. I find that he is not confident in his own expertise as a LAME. He made a number of comments to the effect that he would never know as much as one or another LAME. In the case of the Cirrus aircraft I suspect that he believed that the people at Hawker Pacific knew what they were doing and therefore he did not have to worry about the operation of the engine. That does not of course excuse what I consider to be a fundamental failure as a LAME.
Available Options Listed in the Recommendation Prepared by Mr Weeks
111. Although Mr Weeks' recommendation was to cancel both the licence and the Certificate of Approval, he did list a number of possible courses of action for CASA:
- Prosecution/infringement Notices to Mr Fawcett;
- Cancellation of the AME licence N11156;
- Cancellation of the Certificate of Approval Number 360;
- Suspension of the AME licence N11156 for a period of 12 months;
- Suspension of the Certificate of Approval Number 360 for a period of 12 months;
- Variation of the AME licence N11156 requiring Mr Fawcett to undergo a theoretical and practical examination to test his competency to hold an AME licence;
- Variation of the Certificate of Approval Number 360 requiring Mr Fawcett to undergo assessment of his competency to hold the Certificate of Approval Number 360; and/or
- Formal counselling.
112. Mr Harvey, counsel for CASA, argued that I had a very limited power under CAR 269, and referred to the decision of Branson J in Civil Aviation Safety Authority v Coburn (1996) 24 AAR 389.
113. Mr Anderson, counsel for Mr Fawcett argued that the decision should be set aside or varied in accordance with option 7 or 8. Another possibility, which I understood him to suggest, was to impose a condition similar to the stay that has been in place in relation to the Certificate of Approval.
114. I accept Mr Simpson's evidence that cancellation of Mr Fawcett's licence does not preclude his working in aircraft maintenance, however, his work would have to be supervised, and he would be unable to certify maintenance performed.
115. In relation to the Partenavia incident, I am not persuaded by the evidence that Mr Fawcett failed to carry out the inspection of the upper hinge bracket in a manner appropriate to a LAME. As I have said earlier, I accept Mr McCallum's evidence about the condition of the upper hinge bracket, although I note that he is not a LAME. There was no investigation of the conditions to which the aircraft was exposed during the seven months and nearly 40 hours of service between his inspection and the failure. There seemed to be an assumption that it operated from Goolwa throughout that period and perhaps that it had been stored outside. However, given that the failure was the result of some kind of corrosion, it seems to me that those matters are very important in ascribing fault. Corrosion occurs in many older light aircraft attach steel fittings to aluminium structure in a high stress area such as control surface hinges, as in this case. The Partenavia was over 30 years old and the steel bolt was within alloy components. I also take into account that the aircraft was certified as airworthy by 13 pilots or other qualified individuals during that period. That is not to assert that they had to carry out an inspection of the component that Mr Fawcett was required to on the 100 hourly inspection, however, that evidence does detract somewhat from the criticisms made by various witnesses for CASA that the aircraft was in a poor state in terms of maintenance.
116. Mr Fechner's evidence following his initial inspection in August 2005 was given through the lens of the failure having occurred and his having the advantage of inspecting pieces of the aircraft which showed the rust and corrosion. A matter of some doubt to me is the identification of the bolt which was critical to this question. A person, unidentified apart from being someone Mr Fechner believed to be the agent of the owner of the aircraft, brought it out of a hangar. There were no identification tags on the pieces of the Partenavia that were inspected, including the bolt. Mr Fechner's further evidence given for the purposes of this hearing was with the further knowledge of the Cirrus incident. For the first time, Mr Fechner referred to the cadmium plating which would have been on the bolt when new.
117. At the end of the day, CASA's case comes down to an assertion that the condition of the bolt that Mr Fechner saw and photographed belonged to the Partenavia, and that when Mr Fawcett inspected it, he should have been alerted, taken it out, and, as Mr Harvey said during submission, dismantle the rudder.
118. I conclude on the evidence that, on a visual inspection, the only parts of the bolt that would have been visible were the top and bottom of the bolt and the washer.
119. The experts who gave evidence about the cause of the failure agreed that it would be necessary to examine the components under a microscope to determine the actual cause of the failure. I also take into account that Mr Fawcett was familiar with the aircraft.
120. At the end of the day, it seems to be the assertion by witnesses for CASA that the absence of the cadmium plating required the removal of the bolt and further inspection. If it were an elementary practice to replace bolts when the cadmium coating was wearing off, I would have expected it to have appeared in Mr Fechner's report in 2005. It did not. Given the evidence of Mr Fawcett and Mr McCallum on this point, I am not persuaded by that evidence. I am not being critical of Mr Fechner or other CASA witnesses who are clearly and properly concerned about the safety of aviation.
121. A further matter I take into account is Mr Simpson's very reasonable conclusion following the 2005 audit that it was very difficult to apportion blame. I should add that I have not found the metallurgical evidence of much assistance, mainly because the parts were not available for the necessary examination, and also because the conditions experienced by the aircraft for seven months have not been explored.
122. Mr Anderson emphasised that Mr Fawcett has an unblemished compliance history prior to 2007. It is clear on the evidence that Mr Fawcett is not a good record keeper. He did get his house in order after the 2005 audit and has made an effort to ensure maintenance data is up to date by employer a person. However, he did not employ a person to audit the Company and he has not used Mr George as a consultant since he assisted him with the 2005 audit.
123. As found earlier, Mr Fawcett's experience has been limited, despite the length of time he has been a LAME. Even given the limited amount of maintenance he was undertaking in 2005, his record keeping was not under control. He also seemed to have little understanding of the concept of quality control which is central to holding a Certificate of Approval under CAR 30. This is a matter of concern.
124. A number of references were tendered on behalf of Mr Fawcett. None of them referred to the cancellation of the Certificate of Approval and Mr Fawcett's licence. Mr Harvey relied on that fact, and the decision in Shi v Minister Shi v Migration Agents Registration Authority (2007) 158 FCR 525 to argue that they were irrelevant. I accept that I am entitled to take into account material such that it casts light on the facts at the relevant time, that is, at the date of the reviewable decision. The references only support my own conclusion that Mr Fawcett is an honest man, who until the Cirrus incident had not been involved in any incident that reflected badly on his work as a LAME and proprietor of the Company.
125. Mr Anderson also referred to the financial hardship that Mr Fawcett would face if the Certificate of Approval were cancelled. I find that, in effect, Mr Fawcett is both Illawarra Flying School Pty Limited (which leases the hangar where he works) and the Company. The only income Mr Fawcett has is what he earns from the business the Company carried out. I find that cancelling the Certificate of Approval would cause Mr Fawcett financial hardship, particularly as he has been trying to develop his business since 2004.
DECISION
126. I conclude that Mr Fawcett and the Company failed in the duty imposed upon each of them with respect to a matter affecting the safe operation of an aircraft, that is, the Cirrus aircraft (CAR 269(c)).
127. I do not consider that Mr Fawcett or the Company is not a fit and proper person to have the responsibilities and exercise and perform the functions and duties of a holder of a licence and a certificate of approval respectively (CAR 269(d)). In coming to that conclusion I have had regard to the authorities relied on by both parties, including Re Snook and Civil Aviation Safety Authority [2003] AATA 285, Re Brazier and Civil Aviation Safety Authority [2004] AATA 31 and Re Richards Aviation Services v Civil Aviation Safety Authority (AAT, 26 November 1996).
128. In my view, the appropriate decision is to set aside the reviewable decisions and vary both the licence and the Certificate of Approval. I consider that they are appropriate to satisfy the paramount consideration of safety of aviation. The power to vary takes its content from the powers conferred on CASA to grant a Certificate of Approval and a licence (CAR 30 and 31).
129. I propose to impose three conditions on the Certificate of Approval pursuant to CAR 30(3). The first is that the Company is to employ a suitably qualified LAME, other than Mr Fawcett, and who is acceptable to CASA, to be responsible on a full-time basis for the supervision and certification of all maintenance activities undertaken at Central Aviation. As this is a term of the existing stay, there should be no difficulty in this condition taking immediate effect. The second condition, is that the Company is to employ an appropriately qualified person acceptable to CASA to undertake audits of the Company's system of quality control at six monthly intervals until such time as CASA determines that such audits are not necessary. The third condition is that the Company employ a technical records clerk to maintain the maintenance data necessary for the Company's operations.
130. Pursuant to CAR 31(3), I propose to impose as a condition of the AME licence N11156 a requirement that Mr Fawcett undergo and satisfy a theoretical and practical examination to test his competency to hold an AME licence within six months of the date of this decision.
131. I grant the parties a period of 14 days in which to provide agreed terms of the decision I have indicated.
I certify that the 131 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member,
Mrs Josephine Kelly.Signed: …………[sgd]…………
Steven Mulipola, Associate
Dates of hearing: 3, 6 and 14 December 2007
Date of decision: 19 May 2008
Counsel for the Applicant: Mr Jay Anderson
Solicitors for the Applicant: Goldrick Farrell Mullan
Counsel for the Respondent: Mr Ian Harvey
Solicitors for the Respondent: Legal Branch, Civil Aviation Safety Authority
Key Legal Topics
Areas of Law
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Administrative Law
Legal Concepts
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Judicial Review
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Administrative Decisions (Administrative Appeals Tribunal Act)
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Reasons for Decision
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Conditions on Licence and Certificate
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