Furness and Civil Aviation Safety Authority
[2006] AATA 559
•28 June 2006
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2006] AATA 559
ADMINISTRATIVE APPEALS TRIBUNAL )
)No N2006/14 and N2006/672
GENERAL ADMINISTRATIVE DIVISION ) Re
Robert Furness
Applicant
And
Civil Aviation Safety Authority
Respondent
DECISION
Tribunal Professor GD Walker, Deputy President Date28 June 2006
PlaceSydney
Decision The decision of the respondent is set aside and the matter remitted to the respondent for reconsideration consistent with the reasons for decision.
..............................................
Professor GD Walker
Deputy President
CATCHWORDS
CIVIL AVIATION – CIVIL AVIATION SAFETY AUTHORITY – air safety – cancellation of aircraft maintenance engineer’s licence and certificate of approval on the grounds of failure to identify severe and extensive corrosion in airframe structure and issue of maintenance release to defective aircraft – severe corrosion rendered aeroplane un-airworthy – high risk of airframe failure in flight – whether applicant fit and proper person – evidence does not support that applicant painted over corrosion – owner of aircraft not credible witness and found to be careless about record-keeping for aircraft in relation to flights and maintenance – no credible evidence as to corrosion in airframe in January 2003 – if corrosion present at that time not detectable by normal methods used in periodic inspections – applicant did fail in his responsibilities as to certifications in log book entries – applicant failed to follow FAA Advisory Circular relating to treatment corrosion and type of fabric to be used – applicant only infringed regulation 269(1)(c) CAR – other contraventions not of such gravity to warrant cancellation – discretion exercised in applicant’s favour – certificate of approval and LAME license should not be cancelled – decision under review set aside and matter remitted to respondent for reconsideration.
Civil Aviation Act 1988 s 9A
Civil Aviation Regulations ss 42ZE, 42ZE(1)(b), 43(7)(a), 43(13)(a)(i), 269(1), 282(4)(a) Schedule 5
McDonald v Director-General of Social Security (1983) 6 ALD 6
Miller v Minister of Pensions [1947] 2 AUER 372
REASONS FOR DECISION
28 June 2006 Professor GD Walker, Deputy President Summary
1. The applicant, Robert Furness, was the holder of Aircraft Maintenance Engineer Licence number 3229. He was also the holder of Certificate of Approval number C5167 issued in the name of Robert Furness trading as Furness Aviation Services.
2. On 6 June 2005, a delegate of the respondent decided to cancel Mr Furness’ aircraft maintenance engineer licence and certificate of approval on the grounds that the applicant failed in his duty with respect to matters affecting safe navigation or operation of an aircraft and that he is not a fit and proper person to have the responsibilities and perform the functions and duties of the holder of a certificate of approval holder. This is the decision to be reviewed by the tribunal.
Issue
3. The issue for the tribunal is whether the applicant has breached Civil Aviation Regulations 269(1)(c) in that he failed in his duty with respect to matters affecting safe navigation and whether pursuant to Civil Aviation Regulation 269(1)(d), he is not a fit and proper person to have the responsibilities and perform the functions of a certificate of approval.
Background
4. The applicant, Mr Furness, was born on 22 August 1929 and is aged 76. On 1 June 2004, he was granted aircraft maintenance engineer licence number 3229, expiry date 31 May 2006 (AME licence). This licence was initially granted to Mr Furness on 8 January 1951 (T p12). His licence was endorsed with the following categories:
oA/F Group 1 Aeroplane airframe systems
oA/F Group 3 Wooden structures
oA/F Group 4 Fabric covering
oA/F Group 5 Power driven fluid systems
oA/F Group 6 Airconditioning systems
oEngine Group 1 Piston engines and systems
oEngine Group 3 Supercharging systems
oEngine Group 21 P & W R1830/R2000 series
oEngine Group 21 Wright R1820 series
5. On 1 December 1993, certificate of approval number C5167 was issued to the applicant trading as Furness Aviation Services, Camden Haven Airfield, Ross Glen, New South Wales (T p11). This certificate had the following conditions:
Activities and Conditions:
Maintenance of Class B aircraft with MTOW not exceeding 5700kg.
SPECIAL CONDITONS: The above referenced activities are limited to those where this Certificate holder demonstrates to the satisfaction of a Delegate of the Authority that adequate tooling, test equipment, current technical date and qualified personnel are available to carry out that activity.
6. On 3 February 2005, the area manager of the New South Wales country area office of the respondent, Mr Stewart McAlister, advised the applicant that he was considering recommending that the applicant’s AME licence and certificate of approval be varied, suspended or cancelled on the basis of the following events:
(a)In 2002, Mr Rhys Thomas entered into negotiations with Mr Edward Smith for the purchase of a seaplanes business, Great Lakes Seaplanes. Included in the purchase was a Maule aircraft type M-7-235 S/N 4062C registration number VH-BOG (a single engine, high winged aircraft which at the time of sale, was fitted with floats and was not fitted with a land undercarriage). The aeroplane was manufactured in 1988.
(b)In November 2002, a pre-purchase inspection of VH-BOG was carried out by a Mr Hutson, a licensed aircraft maintenance engineer (LAME) which indicated the following defects and comments regarding the aircraft:
a.Port and starboard door window cracked.
b.Magnetic compass very dirty internally.
c.Head lining torn and dirty.
d.Elevator trim indicator not working past takeoff position.
e.Outside Air Temperature indicator glass cracked.
f.Quantity 5 lifejackets to life expire in August 2003.
g.Port landing light unserviceable.
h.Aft navigation light unserviceable and lens missing.
i.Exhaust tail pipe made from commercial material and one is split.
j.Exhaust muff appears to be cracked.
k.Top VHF radio antenna is broken and has been tapped up.
l.Skin cracked inboard forward rib near leading edge on starboard wing.
m.Vacuum pressure low at 4 to 4.25 inches.
n.Both port and starboard auxiliary transfer electric fuel pumps badly corroded internally.
o.Fuel caps possibly need resealing.
p.Minor damage to port wing leading edge.
q.Small repair to starboard float under water line at aft position.
Corrosion was noted but not limited to:
r.Top of aft starboard doorframe post under vinyl on fuselage.
s.Port side lower aft cabin bulkhead.
t.Aft fuselage battery tray not used.
u.Slight corrosion at forward and aft horizontal stabiliser attachment points.
v.Red stain on lower dorsal fin – corrosion fabric covered.
w.Corrosion at the forward position on the aft access panel at fin point.
x.Starboard side aft top rail looking through port aft access panel corrosion previously treated but has returned.
y.Corrosion on lower fuselage rail.
Airworthiness Directives and dates due:
(i)AD/Rad/43 and AD/Rad/47 due 11/12/2002
(ii)AD/Inst/8 due 31/10/2004
(c)Mr Thomas provided this report to Mr Smith and asked him to fix the corrosion.
(d)On 19 January 2003 the applicant carried out a periodic inspection of VH-BOG at Camden Haven Airfield and issued maintenance release A20351 at 1287.6 airframe hours, signed by Robert Furness, LAME 3229. According to the log book statement, the airframe inspection was carried out in accordance with Schedule 5 of CAR 1988 (CASA Maintenance Schedule) (T pp104-105). The log books for VH-BOG also showed that the applicant had carried out six previous maintenance release inspections on the aircraft since June 1997, at which time the aircraft had 646.0 hours in service (T pp92-103).
(e)In March 2002, the aircraft was transferred to Mr Thomas. Between 15 April 2003 and 28 April 2003, the aircraft was flown between Camden Haven, NSW, and Broome, WA, via Yeppoon, Innisfail, Numbulwar and Kununurra. Between 29 April 2003 and 3 October 2003, the aircraft was used for carrying supplies to ships moored off Broome, Western Australia, a total of 39 flying hours. On 25 October 2003, VH-BOG departed Broome and flew via Tennant Creek, Normanton, Mareeba, Emerald, Bardine and Coonabarabran to Ballina, NSW, arriving on 16 November 2003, a total flight time of 20.1 hours. Between the time that the aeroplane was collected from Mr Smith in April 2003 and delivered to Mr Peter Lake, Ballina Aircraft Refinishes in Ballina for painting, the total service time for the aircraft was 75 hours.
(f)On about 23 December 2003, Mr Lake identified a problem with corrosion in the fuselage and tailplane and requested Mr Peter Leese, LAME, inspect the aeroplane. Mr Leese inspected the plane, including removing some of the fabric covering. The removal of the fabric revealed the aircraft was unserviceable because of extensive and severe corrosion and it required extensive repairs.
(g)In January 2004, the condition of the aeroplane was reported to Mr Arnold Long, senior airworthiness inspector for CASA. On 28 January 2004, Mr Long inspected the aeroplane and identified severe corrosion in the airframe structure, a seat belt attached with wire instead of a bolt, and one battery hold down point attached with wire rather than a nut. At the time of his inspection, the aircraft had flown 1367.6 airframe hours and had flown 80 hours since maintenance release A20351 was issued by the applicant. The inspector concluded that the extent of the corrosion was such that it probably existed at the time Mr Furness issued the certificate. Mr Long noted on 6 February 2004 in the CASA file:
In January while auditing an operator in northern NSW, we were told about a Maule undergoing repairs in Ballina. Wed 28th Ian Millard and I called in to the hangar operated by Rohan Lloyd and had a brief look at the aircraft, VH BOG. It was in a dreadful condition due to substantial rust in steel tubes in the fuse and tail. On Wednesday 28th January I took a series of photos of the aircraft, copies of which are on this file at folios 140 to 164.
7. Mr McAlister advised the applicant that in light of the above facts, CASA was of the view that, as the holder of certificate of approval C5167 and AME licence 3229, that pursuant to regulation 269(1)(a) of the Civil Aviation Regulations, he had contravened regulations 43(7)(a), 43(13)(a)(i), 42ZP(1) and 282(4)(a) and pursuant to regulation 269(1)(c) as the holder of a certificate of approval and AME licence had failed in his duty with regard to matters affecting the safe navigation or operation of an aircraft. Mr Furness was advised that he had 28 days to ‘show cause’ why the recommendation should not be implemented (T pp13-17).
8. On 14 March 2005, Mr Furness’s then representative, Mr John Glynn, lawyer, Australian Aviation Legal Services, responded to the ‘show cause’ notice (T p18). Mr Glynn submitted that the pre-purchase report was an unsubstantiated document prepared as a “negotiating tool” and had no probative value in relation to the airworthiness of the aircraft and, in any event, all items requiring attention had been attended to prior to the release of the aircraft in 2003. He submitted that at the time the maintenance release was signed out, the aircraft was airworthy for the period of the maintenance release. He questioned whether further work had been carried out on the plane in May 2003 in respect of the left-hand elevator, whether the aeroplane had flown between 16 November 2003 and 23 December 2003 leading to a possible over-run of its maintenance release. Mr Glynn also questioned whether CASA was aware of unscheduled maintenance being carried out on the aircraft on 4 July 2003 by Cable Beach Aircraft Maintenance Pty Ltd and again on 24 October 2003.
9. Mr Glynn submitted that directive AD/RAD/43 and AD/RAD/47 were certified as being undertaken by the applicant in January 2003 and that directive AD/INST/8 was not due until October 2003. With regard to the photographs of the corrosion, Mr Glynn submitted that none of the corrosion as identified was present in the aircraft at the time he completed his maintenance and that he had used a Maule-approved test kit which indicated the airframe was not suspect nor evidenced any corrosive deterioration. He also submitted that the plane had been used in salt water environments including on floats in Broome and Northern Australia and that the plane was continually on salt-water until fitted with a land undercarriage in October 2003.
10. Mr Glynn concluded that his client had in no way breached his obligations under the Civil Aviation act or regulations, his client was in no way a threat to air safety and that at the time of issuing the maintenance release the aircraft was airworthy and that it was the failure of the operator in properly maintaining the aircraft that had led to its present condition. He also declined CASA’s invitation to take part in an information conference to discuss the matter further (T pp18-22).
11. On 6 June 2005, after having considered the responses of Mr Glynn on behalf of the applicant, the general manager of general aviation operations, Mr Jim Marcolin, as delegate for CASA, decided to cancel Mr Furness’ AME licence number 3229 and certificate of approval number C5167 on the ground that the extensive corrosion to the fuselage of aeroplane VH BOG existed at the time of the applicant’s inspection of the aeroplane in January 2003 when maintenance release A20351 was issued and was so extensive that it rendered the aeroplane un-airworthy so that there was a high risk of an airframe failure in flight and that because the corrosion was so extensive and obvious, the applicant should have detected it during his inspection in January 2003. In failing to do so, he had issued a maintenance release to a defective aircraft in breach of CAR 43(13)(a)(i). The decision was effective as at the date of the notification being 6 June 2005. Mr Furness was also advised that the decision was subject to an automatic stay pending his lodging an appeal with the Administrative Appeals Tribunal (T pp5-10). On 9 June 2005, Mr Furness lodged an application with the tribunal for a review of this decision.
12. At the hearing of this matter, commenced in Port Macquarie and resumed in Sydney, the applicant was represented by John Glynn, solicitor, McMahon Broadhurst and Glynn, and the respondent were represented by Adam Anastasi, solicitor, CASA legal services branch. The evidence before the tribunal comprised the documents produced pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (“the AAT Act”) (“the T Documents”) together with the evidence tendered at the hearing. Evidence for the applicant was given in person by Robert Furness, Edward Smith and Stephen Hutson and for the respondent oral evidence in person was given by Arnold Long and Graham Arnold and telephone evidence by Rhys Thomas.
Relevant Legislation and Policy
13. The principal legislation is the Civil Aviation Act 1988 (CAA). Section 9A provides:
(1)In exercising its powers and performing its functions, CASA must regard the safety of air navigation as the most important consideration.
(2)Subject to subsection (1), CASA must exercise its powers and perform its functions in a manner that ensures that, as far as is practicable, the environment is protected from:
(a) the effects of the operation and use of aircraft; and
(b) the effects associated with the operation and use of aircraft.
14. The provisions of the Civil Aviation Regulations 1988 (CAR) relate to the requirements for correctly maintaining an aircraft and provide the grounds for varying, suspending or cancelling a AME licence and certificate of approval.
15. Regulation 42ZE provides:
REG 42ZE - Certification of completion of maintenance on aircraft in
Australian territory(1) A person who carries out maintenance on an Australian aircraft in Australian territory must ensure that completion of the maintenance is certified in accordance with:
(a) if the person has an approved system of certification of completion of maintenance — that system; or
(b) if paragraph (a) does not apply — the CASA system of certification of completion of maintenance.
Penalty: 50 penalty units.
…
(3) An offence against subregulation (1) is an offence of strict liability.
16. Regulation 43 states:
REG 43 - Maintenance releases in respect of Australian aircraft
(1) Maintenance releases in respect of Australian aircraft shall be issued only by authorised persons and only in such manner, and in accordance with such form, as CASA directs or approves.
…
(7) A maintenance release may be issued in respect of an aircraft only if:
(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
…
(13) A person shall not sign a maintenance release to be issued by virtue of paragraph (7) in respect of an aircraft if:
(a) the person considers that:
(i) the aircraft is in a damaged condition or is defective;
(ii) the damage is major damage or the defect is a major defect, as the case may be; and
(iii) the damage or defect is not a permissible unserviceability;
(b) the person considers that maintenance carried out on the aircraft may have adversely affected, to such an extent as to affect the safety of the aircraft, the flight characteristics of the aircraft or the operating characteristics of any aircraft component, or of any system of aircraft components, installed in the aircraft;
(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) the person is aware that:
(i) information entered on the maintenance release is incorrect; or
(ii) the maintenance release does not contain all information that it is required by or under these regulations to contain.
(13A) A person must not contravene subregulation (13).
…
17. Schedule 5 to the CAR, under the heading “Table of actions included in periodic inspection” provides a list of the inspection requirements to be performed on a period inspection. This includes:
Schedule 5 CASA Maintenance Schedule
Table of actions included in a periodic inspection
Section 1 The airframe(1) Check the external and internal required placards.
Note Reference should be made to the aircraft flight manual and airworthiness directives for the required placards.
(2) Take the following action in relation to the mainplane and empennage (including canards) of the aircraft:
(a) inspect the skins for evidence of wrinkles, buckles, sheared or loose rivets, corrosion, disbonds and general damage;
(b) if the skin is fabric, check the strength of the fabric;
(c) inspect the internal structures and spars;
(d) inspect the lift struts, interplane struts, jury struts, spreaders, chafing discs and bracing wires;
(e) inspect the flight control surfaces, slats, spoilers, tabs, flaps, mass balance weight attachments, hinge brackets, tracks and rollers;
(f) inspect the flight control system bellcranks, push pull rods, torque tubes, cables, fairleads, turnbarrells and pulleys;
(g) inspect the wing and empennage to fuselage attachments and surrounding structure;
(h) lubricate as necessary.
(3) Take the following action in relation to the fuselage:
(a) inspect the fuselage skin for evidence of wrinkles, buckles, sheared or loose rivets, corrosion, disbonds and general damage;
(b) inspect the areas around cut-outs (such as windows and inspection apertures) for cracks and inspect the sealing and fit of all doors and emergency exits;
(c) inspect the interior;
(d) inspect the strength of the fabric covering on surfaces;
(e) inspect the internal structure;
(f) inspect the locks, latches and hinges of doors, canopy, windows which may be opened and direct vision windows;
(g) check that the windshields and windows are clean and free from
(h) inspect the seats, seat attachments, seat adjustment mechanisms, seat stops, seat belts, safety harnesses and inertia reels;
(j) inspect the control wheels, control columns, rudder pedals, control levers, control system bellcranks, push pull rods, torque tubes and cables;
(k) operate all trim controls through the complete range of travel and check them for correct trim position indication;
(l) inspect the brake master cylinders, brake lines, reservoirs, parking brake linkage and mechanical brake system operating mechanisms;
(m) check the cabin fire extinguisher for correct charge, legibility of operating instructions and condition of locking pin or seal and ensure that the extinguisher has not reached its expiry date;
(n) inspect the heating and fresh air system ducting and outlets and the airflow control valves;
(p) inspect the emergency and flotation equipment and ensure that the equipment has not reached its expiry date;
(q) lubricate as necessary.
18. Regulation 269(1) of CAR provides:
REG 269 – 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:
(a) that the holder of the licence, certificate or authority has contravened, a provision of the Act or these regulations, including these regulations as in force by virtue of a law of a State;
(b) that the holder of the licence, certificate or authority fails to satisfy, or to continue to satisfy, any requirement prescribed by, or specified under, these regulations in relation to the obtaining or holding of such a licence or certificate or an authority;
(c) that the holder of the licence, certificate or authority has failed in his or her duty with respect to any matter affecting the safe navigation or operation of an aircraft;
(d) that the holder of the licence, certificate or authority is not a fit and proper person to have the responsibilities and exercise and perform the functions and duties of a holder of such a licence or certificate or an authority; or
(e) that the holder of the licence, certificate or authority has contravened, a direction or instruction with respect to a matter affecting the safe navigation and operation of an aircraft, being a direction or instruction that is contained in Civil Aviation Orders.
19. Regulation 282(4) provides:
REG 282 – Offences in relation to licences, certificates and
authorities…
(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.
Condition of Maule M-7 aircraft VH-BOG in January 2004 at Ballina
20. There was little disagreement among the witnesses about the extremely poor condition of the Maule aircraft VH-BOG (“the Maule”) when it was inspected at Ballina in January 2004 by Mr Arnold Long, a senior airworthiness inspector with the respondent’s Brisbane field office. Mr Long has held an aircraft maintenance engineer’s license since 1976 and has extensive experience in many aspects of maintenance, rectification and modification of aircraft. He maintained Maule aircraft between 1979 and 1980 and between 1984 and 1987. He has also performed maintenance on Grumman flying boats and Beaver and Nomad floatplanes, but has no experience with Maule floatplanes.
21. On inspecting the Maule in January 2004, he found it to be in very poor condition as a result of corrosion and took a number of colour photographs that were annexed to his statement (Exhibit R4). They showed, among other things, a portion of the pilot side front door pillar where the steel had corroded (rusted) clean through, leaving a hole about 70 millimetres by about 40 millimetres; a fuselage rail section of which about 50 percent had corroded away, other areas of corrosion on fuselage rails, the horizontal stabiliser rear attachment area where a 65 mm2 section of structural channel steel had lost about 90 percent of its extent as a result of corrosion; corroded stabiliser attachment mounting tubes; stabiliser and elevator steel framework tubes that had corroded through; and wooden formers that had rotted away.
22. Mr Long referred to the pre-purchase inspection report commissioned by Mr Rhys Thomas and conducted by Mr Stephen Hutson, a LAME, at Camden Haven on 5 December 2002 (T p145). Under the heading “Corrosion noted but not limited to”, Mr Hutson had listed a number of areas of corrosion or possible corrosion. In relation to the first, second and final items on the list, Mr Long did not report observing corrosion in those locations, but made specific observations in relation to some others.
23. Where Mr Hutson had noted “slight corrosion at forward and aft horizontal stabiliser attachment points”, he observed that the corrosion was now severe. Where Mr Hutson had reported “red stain on lower dorsal fin – possible corrosion fabric covered”, Mr Long observed that the structure was severely rusted inside the rear fuselage. Where Mr Hutson had reported “corrosion at the forward position on the aft access panel at fin post”, he attested to “a substantial amount of corrosion”. As to Mr Hutson’s report of “starboard side aft top rail looking through port aft access panel – corrosion previously treated but has returned”, he observed that “severe corrosion was observed on the top rail”.
24. Mr Long said in cross-examination that the new left-hand elevator (T p123) appeared to be in a satisfactory condition and that there was no sign of rust emerging from any of the underside drain points. When it was put to him that on the coloured version of the photographs used at the hearing, there appeared to be red stains emerging from at least one drain point, he conceded that it could come from inside the elevator but thought it could also have come into the elevator from its leading edge. Further, as the applicant pointed out, the fabric covering was not removed, so it is impossible to be sure whether the frame was corroded or not.
25. As regards the photograph of the pilot’s inboard seatbelt attachment (T p121), he said that a Ballina aircraft welder, Mr Rohan Lloyd, had attached the belt to the mounting with a twisted welding rod in order to demonstrate to Mr Long the condition in which Mr Lloyd had found the attachment when the aircraft came into his hands in November 2003. Mr Lloyd was not called as a witness.
26. It should be noted that Mr Long at no time reported seeing any evidence that corrosion had been painted over, although he did notice black paint in some areas that did not match the green of the airframe.
27. The applicant himself did not inspect the aircraft at Ballina but saw the photographs and had been “astounded” at its condition. He said he would never paint over the top of corrosion but would treat surface corrosion with sanding, priming, painting and a protective coating of Boeshield. If there were deep-seated corrosion he would study it carefully to determine the appropriate treatment.
28. Mr Hutson, who started working in aircraft maintenance in about 1980 and has been a LAME since 1991, accumulating significant experience in maintaining floatplanes (both fabric covered and aluminium), confirmed that the photographs showed significant and catastrophic corrosion. For example, at the elevator attachment point (T p122), an area of about 65 millimetres square had corroded away completely. He had never seen corrosion such as this and thought the airplane must have been neglected and abused.
29. Mr Edward Smith, who owned the aircraft until it was sold to Mr Thomas, is a retired agricultural pilot and operator with 14,000 flying hours. He did not inspect the airplane at Ballina, but saw it at Broome in October 2003, shortly before it was flown to Ballina. At that time it was on wheels, not floats, and was in a hangar. He was “disgusted” by its “appalling” appearance, which he attributed to a lack of any maintenance or care. He tried to check the engine hours reading on the tachometer, because he thought it must have accumulated many more hours than Mr Thomas had said, but was unable to obtain a reading. The seats and upholstery had been “flogged” through heavy use and the roof lining was starting to fall out.
30. Mr Thomas, who had operated the aircraft at Broome, stated that he had flown it to Ballina, arriving on 16 November 2003, where he intended to have it painted. The painter, Mr Lake, identified a problem with corrosion in the tailplane (stabiliser) and called in a LAME, Peter Leese. He stated (Exhibit R3) that Mr Leese had told him that the elevator support had fresh paint over rust and there was black paint applied over rust on the doors. The tailplane components were corroded to a third of their original size. Mr Thomas said that he himself had seen blue paint that had been applied over rust. Mr Leese did not give evidence in the proceedings, however, and Mr Thomas did not refer to any of the photographs as showing blue paint applied over corrosion. Neither Mr Long nor any of the other witnesses observed paint over corrosion.
31. I find that the aircraft was in a very poor and unairworthy condition when it was inspected in Ballina in January 2004 but I do not think the evidence supports the conclusion that paint had been applied over corrosion.
Maintenance by the applicant 1997 – January 2003
32. The corroded and unairworthy state of the aircraft in January 2004 having been established, the question then becomes whether the applicant is responsible for it, and specifically what was the aircraft’s condition in January 2003 when the applicant issued his final maintenance release for it.
33. Mr Robert Furness carries on a business under the name Furness Aviation at Ross Glen, where he operates his hangar, which also has facilities for the landing and maintenance of floatplanes.
34. Mr Furness first obtained his aircraft maintenance engineer license in 1951, but before that had gained experience in maintaining seaplanes, having been involved at Bankstown in the conversion of some ex-air force Walrus aircraft for use by the Shell company in Borneo. In addition to conducting his aviation maintenance business, Mr Furness has constructed two airplanes himself, a Jodel SkyPrince and a Hatz biplane, which is currently on the aircraft register.
35. Over the years he had maintained a number of aircraft for Mr Ted Smith, and in 1997 began maintaining the Maule M-7-235 VH-BOG for him.
36. Manufactured in 1988, the aircraft had been corrosion-proofed when its fabric was replaced in preparation for its use as a floatplane (T pp90-91). In all Mr Furness carried out eight periodic inspections on it between 1997 and 2003, his last maintenance release for it being issued on 19 January 2003 (T pp117-118).
37. The Maule is usually used as a land airplane and Mr Furness did not think it was suitable for use in salt water in the tropics. Even in temperate conditions it needed to be hosed off with fresh water after each flight, and regularly corrosion-proofed with Boeshield or some similar compound. Mr Smith had, however, looked after it well and Mr Furness always saw it resting on a pontoon when it was not in use. The lake on which it was kept is fed by two rivers and the water is brackish rather than typically salty. As Mr Smith also confirmed, it was kept in a sheltered bay within the lake.
38. In January 2003, while Mr Furness was carrying out a periodic inspection on the aircraft, Mr Smith told him that he had a buyer for it as he was ceasing floatplane operations because his wife was in poor health and they wanted to undertake some travel while it was still practicable for her to do so. The purchaser arranged for a pre-purchase inspection by Mr Stephen Hutson of Falcon Aircraft Engineering in Port Macquarie and the sale was conditional on the items in the “snag sheet”, or list of defects prepared pursuant to that inspection, being attended to.
39. Mr Furness agreed to rectify the matters in the list in the course of his inspection. Many of the points were cosmetic or minor, he said, such as the replacement of light globes. He conceded that he had not logged any corrosion treatment at that time, but said that any corrosion he saw was on the surface only and he treated it in the usual way. The stains, possibly suggesting corrosion, that Mr Hutson had observed proved to be dirt and were removed by pressure washing. In the course of the inspection Mr Furness removed all inspection plates pursuant to schedule 5 requirements, and went inside the fuselage, as Mr Smith (who was present much of the time) confirmed. He also looked for other stains and used a Maule fabric tester on the steel frame over the fabric, on his own initiative, in order to identify any possible corrosion in the frame. His treatment for surface corrosion, as was noted above, was to sand the area, spray it with zinc chromate primer, then paint it and apply Boeshield protective finish. He also gave Mr Smith some Boeshield to apply himself in between inspections. Epoxy primer is used to protect the inside of airframe tubes, but is applied only by the manufacturer through openings that are then welded closed.
40. The right-hand elevator was re-covered in November 2002 (T p102) after being damaged. At that time the elevator frame was seen to be in good condition.
41. Mr Furness said he would never let an airplane fly with corrosion in it and would never paint over rust. There was no visible corrosion in the aircraft when he carried out the January 2003 inspection or when it was collected by Mr Thomas in April 2003.
42. It was put to Mr Furness that he had not always kept his maintenance records in the manner required by the regulations, notably by recording in the aircraft log that rectification work had been carried out but referring to the work sheet for the details of the work, without actually attaching it. He thought, however, that the practice was permissible, and said he had never been criticised for it in any of his CASA audits. It did appear that Mr Furness did not always log minor rectification tasks such as the treatment of surface corrosion or the replacement of light globes.
43. Mr Hutson stated that while employed by Falcon Aircraft Engineering in December 2002 he had been approached, through his employer, to carry out the pre-purchase inspection of the Maule for Mr Thomas. Mr Hutson had previously worked on Maule seaplanes when he was with Hawker Pacific Aviation. He inspected the aircraft at Mr Furness’s base and removed all inspection panels in order to gain a proper view of the aircraft’s structure. He concluded that the aircraft was in good condition and had been well looked after. There was no bubbling of the fabric over the frame that might indicate corrosion, and although there was some staining it was only slight and not of such a character as to require x-raying the frame or removing the fabric. The catastrophic corrosion revealed in the photographs was not present. There was no rotten woodwork. The paintwork was good and in all the aircraft was in above average condition. Mr Hutson thought the applicant’s use of the Maule tester to check for possible corrosion in the steel frame was entirely appropriate.
44. Mr Hutson said he had specifically advised Mr Thomas not to buy the aircraft if he intended to use it for saltwater operations in a humid, tropical environment like that at Broome. He told him he would be better off buying a Cessna or other aluminium aircraft, but Mr Thomas had told him that he could not afford a Cessna.
45. Mr Smith stated that while the aircraft was owned by him, it was very rarely left on the water after a flight but was winched onto the pontoon. He would wash it down after each day’s flying as he was well aware of the speed with which corrosion can develop in that environment. His experience as an agricultural aviation pilot and operator had helped to impress upon him the need to guard against corrosion, as agricultural aircraft are easily damaged by the chemicals they deliver. There was certainly no door rust in the aircraft when he had it.
46. After washing the aircraft each day, he placed Damp Rid containers in the fuselage to absorb any remaining moisture, emptying them at intervals and removing them before the next flight. The Maule was kept on a pontoon at Pacific Palms, and was pulled up the slipway by a winch. Mr Smith regularly used Boeshield to protect the metalwork, at each inspection and about every two or three weeks in between.
47. As the contract of sale to Mr Thomas was conditional on rectification of the matters listed in Mr Hutson’s report, Mr Smith was keen to ensure that they were put right. He was present when Mr Furness carried out the maintenance work and is satisfied that everything on the list was attended to. The stains that Mr Hutson had thought might indicate corrosion proved to be dirt.
48. After the list had been attended to, Mr Thomas went through it, checking each item to ensure that it had been rectified. He did not appear to be in any particular hurry to take delivery, however, and Mr Smith gained the impression that he was “stalling” in order to delay having to pay the purchase price instalments.
49. Mr Thomas, on the other hand, averred that he had been in a hurry to collect the aircraft and for that reason took delivery even though he was unhappy about some items, including that Mr Furness appeared to have painted over some corrosion. Although the aircraft seemed generally satisfactory in April 2003, there was a slight possible rust stain on the dorsal fin (actually a ventral fin, but the witnesses for the most part referred to it as a dorsal fin). There were some lumps in the fabric where it passed over the framework which might indicate corrosion in the steel, but at the time he had thought it might simply be some tape applied during the manufacturing process. He said he did not look inside the fuselage, remove any inspection panels or run the engine, adding that he has no mechanical ability.
Operation of VH-BOG by Rhys Thomas
50. Mr Rhys Thomas conducts charter passenger-carrying operations pursuant to an air operator’s certificate issued to Kimberley Seaplanes Pty Limited. He has held a commercial pilot’s license since May 1969 and an air transport pilot license since November 1990. He is a former airline pilot of great experience, having logged some 20,000 hours. At one stage he was an aircraft importer, but he had never previously owned a steel-framed seaplane.
51. In late 2002 he entered into negotiations with Edward Smith to purchase his business Great Lakes Seaplanes, a scenic flight operation based at Forster, New South Wales. Included in the purchase was the Maule M-7-235 VH-BOG. He told Mr Smith that he wanted a pre-purchase inspection of the Maule, and Mr Smith recommended Stephen Hutson at Falcon Aircraft Maintenance, who produced the pre-purchase report already mentioned.
52. The applicant stated that on 20 January 2003, the day after the maintenance release was issued, Mr Thomas, in company with Mr Smith, came to the applicant’s maintenance facility and took the aircraft for a flight. On 7 and 8 February Mr Thomas and his mother (Mrs Dawn Thomas) came to the facility to inspect the aircraft. He inspected it again on 12 March with a woman friend and on 1 April took it for a flight.
53. The respondent sought to interpret the evidence as showing that, as Mr Thomas was not an engineer, he had relied on others to inform him about BOG’s condition. That does not quite square with his repeated inspections of the Maule, with his vast experience as a pilot and his earlier activities as an aircraft importer. Nor is it probable that he would have accepted the seaplane knowing, as he said, that corrosion in the frame had been painted over (Exhibit R3).
54. Mr Thomas returned to the facility on 7 April 2003 to deliver a fuel tank. There is a sharp conflict in the evidence about what happened next. Mr Furness states that on 13 April Mr Thomas returned again and took the Maule for a one-hour flight which was not recorded in his log book or in the maintenance release. After that flight, Mr Thomas installed the fuel tank in the rear of the aircraft cabin. He had asked Mr Furness to install it for him, but Mr Furness had refused to have anything to do with it as Mr Thomas has not obtained the necessary approvals for the installation.
55. In the evening of 13 April Mr Furness refuelled the aircraft, except for the fuselage tank in the cabin that had just been installed. Mr Thomas had removed the middle row of seats to make room for it. The next day Mr Furness filled the fuselage tank. He observed that it was fitted with a selector and a hose, which he presumed was connected to the aircraft’s fuel system. He noted that the installation was not recorded in the aircraft’s log book or on the maintenance release. Mr Furness filled the tank with 200 litres. Having loaded a large amount of baggage, Mr Thomas boarded the aircraft with his mother, who had arrived the day before also.
56. Mr Furness observed that the Maule was very low in the water and said (apparently to a man named Ron, who was with him), “She’s ready to sink. He won’t get off”. Mr Furness saw no centre of gravity calculations for the flight or any flight plan. Mr Thomas then taxyed the aircraft away and attempted to take off. The aircraft became airborne, but once it had done so it pitched nose down and had to be landed again. Mr Thomas returned the aircraft to the base and drained the fuselage tank, which was then removed from the aircraft and placed in the hangar. Mr Furness then drove Mr Thomas into town so he could purchase some fuel cans.
57. Mr Thomas’s statement (Exhibit R3) says nothing about this alleged incident, but in cross-examination said that he had brought the tank from his farm at Coonabarabran and had intended to carry it empty in the aircraft, but found that it would not fit through the door. He did carry extra fuel for his flight but had purchased some jerrycans for the purpose, which he secured in the rear seat. Mr Furness had pumped 120 litres of fuel into the wings and another 60 litres into the cans. On 14 April he had not attempted his planned takeoff but had only taxyed the aircraft. On taxying he had experienced some problems with the water rudder cables, had found that the gyro suction was low and a spark plug had fouled. He cleared the plug by leaning the mixture in the usual way but it transpired that the artificial horizon needed a new part. He had calculated the centre of gravity for the intended flight and the aircraft was within the envelope. He had not attempted to depart later that day because the weather had closed in, forcing him to delay his flight until 15 April.
58. He denied that he had become airborne but was forced to land again because the nose had pitched down, saying that if he had been overloaded and outside the centre of gravity limits it would have pitched up, and therefore would never have become airborne. He did not explain why the aircraft would necessarily have pitched up rather than down and not rotated, a matter which would presumably depend on takeoff weight and where the centre of gravity was situated in relation to the centre of lift at the time.
59. Mr Thomas thus, in effect, denies that the incident described by Mr Furness ever happened. Mr Furness, however, keeps a meticulous and detailed contemporaneous diary (Exhibit A7). The page for Monday, 14 April 2003 reads as follows:
Got up at 0600. Refueled BOG’s “aux” [auxiliary] tank … Reece [sic] finished loading BOG and with very scary feelings we put it in the water and away he went. Ron and I stayed down at the ramp, and sure enough BOG came back. Way overloaded and CG [centre of gravity] out as I suspected. Took it back to the hangar and Reece removed “Aux tank” etc … Ted Smith phoned to see if BOG had got away OK!!! Took Reece in to Laurieton to buy fuel drums. He refitted seats in BOG.
60. That contemporaneous record corroborates Mr Furness’s version of the events and I am satisfied that they occurred as he describes.
61. Again, Mr Thomas’s account of his reasons for aborting his departure on 14 April is less than convincing. If low gyro suction was an operative reason, one would expect to find some reference to relevant rectification work at the time in the aircraft log or maintenance release, or both, but there is none. The vacuum pump was declared unserviceable, but not until May (actually June, according to Mr Thomas). It was replaced in July (T p117). In the log extracts before the tribunal there is no record of an artificial horizon part being replaced. In my view Mr Thomas has transposed the date of the vacuum pump fault in an attempt to conceal the true reasons for his failure to take off on April 14.
62. Fitting a large long-range tank in an aircraft without the necessary approvals and attempting a takeoff in a probably overloaded and out-of-balance condition constituted a gross breach of the regulations and of basic air safety practices. That he would perpetrate such a breach and later attempt on oath flatly to deny it does not reflect favourably on Mr Thomas’s reliability as a witness.
63. It may also be noted that Mr Thomas seemed a rather evasive and combative witness. When questioned on the inadequacies of his record-keeping, he twice demanded to know what that had to do with the existence of corrosion in the Maule. On occasion he answered questions with long, indignant and unresponsive speeches. Such demeanour by itself does not necessarily mean that a witness’s evidence cannot be accepted, but it does tend to reinforce the unfavourable impression created by his account of the auxiliary tank episode.
64. Mr Thomas stated that on 15 April he flew the Maule to Yeppoon. The following day, as the weather was poor and the forecast unpromising, he had the aircraft removed from the water by a crane and placed on land. After a further delay he departed for Cairns. At no time, he said, had the aircraft been submerged in salt water.
65. During the flight to Cairns, he encountered poor weather in the Innisfail region and decided to land the aircraft on a sheltered inlet, where he parked it on a sandy creek bank east of Innisfail for two nights. As there was no wind, just heavy rain, no salt water was blown onto the aircraft.
66. It should be noted that Mr Thomas initially denied to CASA that the Yeppoon or Innisfail incidents ever took place (T p7). Yet in his written statement (Exhibit R3), which he adopted on oath, Mr Thomas described those events in some detail, having changed his story without explanation or any discernible embarrassment.
67. He operated the aircraft in Broome, mainly for the purpose of taking supplies to charter vessels and fishing boats that he operated in the region. It operated on water from about 29 April 2003 until 3 October 2003, a total of 39 hours’ flying time.
68. The aircraft was never moored on salt water overnight, Mr Thomas said, as to do so would invalidate its insurance cover. He was aware that the airframe was steel (apart from the aluminium wings) and would corrode if it were continuously exposed to salt water.
69. After the end of each day’s flying, the Maule was taken out of the water on a purpose-built trailer. It was washed down with fresh water in a boat yard and tied down on a cement slab. It was then moved on a slipway 400 feet away from the water so as to ensure that it was not exposed to salt. Mr Thomas’s description of the meticulous care he said he took of the aircraft at Broome is not easy to reconcile with his failure to notice that serious corrosion was developing.
70. In due course he decided to sell the Maule and asked Cable Beach Air Maintenance to remove the wings and floats and fit the aircraft’s wheeled undercarriage. Those tasks were completed on 24 October 2003, after which the aircraft was flown only on land. On 25 October 2003 Mr Thomas departed from Broome, and arrived in Ballina on 16 November 2003. Between the time he collected the aircraft from Mr Smith in April 2003 until the time when the aircraft was taken to Peter Lake, an aircraft painter in Ballina, its total time in service was 75 hours.
71. Mr Thomas said that he had never failed to record a flight in the manner required, nor had he ever flown an aircraft without a valid maintenance release. When asked about log entries that appeared to suggest that he flew the aircraft for three hours after a damaged elevator had been removed on 6 May 2003 and before the new replacement elevator was fitted on 4 July 2003, he replied that the entry should have read 6 June rather than 6 May. Some incorrect dates recorded for his April flight from Camden Haven to Broome he explained by the fact that the calendar on his watch was in error and the errors became sequential as he continued the flight in remote areas and without access to newspapers.
72. I accept the explanation as regards the Camden Haven – Broome flight. The elevator incident is more problematical. The aeroplane would not fly at all with an elevator missing and notwithstanding the auxiliary fuel tank episode, it is hard to believe that a pilot of Mr Thomas’s experience would knowingly fly an aeroplane with an elevator that had not been properly fitted by a LAME and on which the required control cable checks had not been carried out. Proper elevator control is vital to all flight. Yet while Mr Thomas states that he did not even have the damaged elevator inspected until July 2003, it is clear that he paid for a new elevator specially imported from the United States on 29 May 2003 (see paras 81, 84 below).
73. The respondent sought to account for the June flights by suggesting that perhaps they had occurred in May, thereby in effect postulating a further gross error on Mr Thomas’s part. This put the respondent in the position of partly resting its case against Mr Furness on record-keeping failures while seeking to excuse much more significant recording errors by its own chief witness.
74. Both parties sought to rely on Avdata records to challenge or support Mr Thomas’s evidence about his flights in the Maule, but as that information contained some obvious errors I do not find it helpful either way. It was not in any event clear whether Avdata would record particulars of flights from water at Broome.
75. At the very least, I think the evidence shows that Mr Thomas is careless about record-keeping. An error (if it was an error) of a whole month suggests that he may not have completed the log book entry until well after the event. His failure to record the one-hour flight on 13 April 2003 in his log book or on the maintenance release suggests that it is not his invariable practice to log his flights in the manner required. He has, of course, an interest in ensuring that his evidence in these proceedings accords with the records kept in the logs and on the maintenance release.
76. Another aspect of the aircraft’s operation during this period should be mentioned. As part of the negotiations for the sale to Mr Thomas, he and Mr Smith agreed that Mr Thomas would pay Mr Smith $10 per day to operate the aircraft under Mr Smith’s air operator’s certificate (Exhibit A11). At the hearing Mr Smith said that Mr Thomas had never paid him any money at all pursuant to that agreement. In late October Mr Smith had telephoned him about payment when he was in Broome. Mr Thomas had responded with “a lot of excuses” saying that he was really using it only for private work, including a private flight to Darwin in the course of which he had refuelled at Kunnanurra.
77. In cross-examination Mr Thomas denied having discussed with Mr Smith at Broome in October 2003 the money that Mr Smith said Mr Thomas owed him, but added that he was not sure about the financial details. He said that if Mr Smith had asked him about the money he would in turn have asked him about “the lies he had told about the storage” of the Maule and the repairs to it. He denied flying the aircraft to Darwin via Kunnanurra.
78. The charter work had indeed not eventuated because, he said, the aircraft was unsuitable. Further, the 10 metre tides at Broome had made it impossible to launch the aircraft pursuant to a charter schedule. He had therefore decided to purchase an amphibian, and was now operating a Cessna 208.
79. Mr Thomas did not deny that he had never paid any money pursuant to the agreement over the air operator’s certificate and I do not accept his denial that Mr Smith had ever spoken to him about the money he owed.
Intervening maintenance
80. A maintenance release is normally valid for 12 months or 100 hours’ flying time. As only 80 hours flying were recorded between the issuance of the maintenance release on 19 January 2003 and the discovery of the extent of the corrosion in November 2003, the aircraft would not, on the face of it, have needed another periodic inspection during that period. It did undergo some maintenance and repair work, however.
81. The maintenance release (T p117) shows that on 6 May 2003 the left-hand elevator was unserviceable and had to be removed. Mr Thomas said that date was incorrect and should have been 6 June. On 29 May 2003, Maule Aircraft Australia Pty Limited of Caringbah, New South Wales, invoiced Mr Thomas for the sum of $2,484.98 for a new left-hand elevator. The company acknowledged receipt of payment on that date.
82. The maintenance release then records that the new elevator was fitted on 4 July 2003, while at the same time the oil was replaced and a new vacuum pump was fitted. That work was signed out by Cable Beach Air Maintenance.
83. At the hearing Mr Thomas explained that the left-hand elevator had been bent when someone leaned on it. It was sent to Samotite Aviation Services at Jandakot Airport, near Perth, for repair as they had the appropriate kind of fabric with which to renew the covering. Samotite told Mr Thomas that they could not repair it because of the severe rusting of the ribs and of welds in the framework. He had then ordered a new one, at a cost of $4,500 (actually $2,484.98, as was noted above).
84. Mr Thomas’s witness statement does not altogether square with his oral evidence on that point. In it he states, “On one occasion when the aircraft was being taken out of the water, a person pulled down on an elevator and bent it. I was also having problems with the aircraft’s instruments. In July 2003, I took the aircraft to Beach Air Maintenance for them to inspect and assess these items” (Exhibit R3). As he had already paid Maule Aircraft Australia for a new elevator on 29 May 2003, it is hard to see how he could have taken the aircraft to Cable Beach Air Maintenance for them to inspect and assess the damaged elevator and the other items.
85. On 5 August 2003, Cable Beach Air Maintenance certified some further maintenance work. The description is hard to read but appears to relate to repairs to the right-hand float.
86. Mr Thomas later decided to sell the aircraft. He planned to have it repainted and the fabric replaced in Ballina. He also made the decision to have the floats removed and convert the Maule into a landplane, for which there would be a larger market.
87. He asked Cable Beach Air Maintenance to fit the aircraft’s wheeled undercarriage, after removing its wings and floats, and transport it to Broome Airport.
88. That work, which was completed on 24 October 2003, was described in the aircraft’s log book as follows:
Wings removed for transportation to airport, refitted with new hardware – cables reconnected and tensioned to service manual figures. Duplicate inspections carried out … floats removed and land plane undercarriage with new hardware, brakes … Duplicate inspections carried out.
89. Mr Thomas said that when the wings were removed and the wheels fitted, some surface corrosion on the tailplane became visible, which was dealt with by removing the fabric and treating the affected area.
90. Mr Furness maintained that when the left elevator was replaced in July, there would have been a great deal of checking of cables and other matters that should have revealed any corrosion. Similarly, when the wings and ventral fin were removed and replaced, it would have been necessary to carry out inspections and maintenance work that would have revealed airframe corrosion. The door rust would have been obvious, especially when the brake line was being connected.
91. Mr Hutson agreed that removing the elevator would have made any corrosion obvious, and any LAME would have checked for corrosion in the aft area, as that region is immersed in salt spray on takeoff and landing and is particularly susceptible to corrosion. The door rust, again, must have been visible when the brake hoses were connected.
92. Mr Long likewise thought that it would have been hard to remove and repair or replace the left-hand elevator in July 2003 without entering the fuselage. When the floats and wings were removed in October the Cable Beach engineers should have seen the corrosion that was there. Even from the outside they should have seen the corrosion near the doors. They were not diligent and “must have done it with their eyes shut”. As a result of this case Mr Long has asked the respondent’s Darwin office to investigate Cable Beach Air Maintenance.
Responsibility for the condition of the aircraft: the witnesses’ respective views
93. Messrs Furness, Hutson and Smith all testified that there was no visible corrosion in the aircraft when Mr Thomas took delivery of it in April 2003. They also all took the view that any airframe corrosion would have been obvious when the left-hand elevator was replaced in July 2003 and when the wings and ventral fin were removed in October 2003 and the brakes connected at that time.
94. Mr Furness and Mr Smith both considered the Maule unsuitable for operation in salt water in tropical conditions. Mr Hutson was of the same opinion and had told Mr Thomas so.
95. Mr Furness said that the right-hand elevator frame was in good condition when the elevator was re-covered in November 2002, shortly before the January 2003 inspection. He also observed that the left-hand elevator, which was brand new in July 2003, appeared to be in poor condition when it was removed in November 2003 (T p123). Mr Hutson thought the corrosion shown in the photographs could have occurred within a period of 12 months.
96. Mr Long, on the other hand, did not think the corrosion could have advanced so far in 12 months, nor that the wooden formers could have rotted during that time. He had no doubt that there was corrosion throughout the airframe, including the tail, at the time of the periodic inspection conducted by the applicant in January 2003. It would have been such that it should have been treated and damaged airframe components replaced. There was a high likelihood of an airframe component failure with the state of the corrosion that he had observed. Further, the use of the Maule tester on steel airframe components, other than the struts, was not authorised and could have been harmful.
97. Mr Gary Arnold, an air safety auditor (airworthiness) based at CASA’s Bankstown office, after examining the photographs of BOG, also considered that the corrosion depicted must have been present in January 2003 and that Mr Furness should have detected it, as there would have been symptoms or indications.
98. Mr Long agreed that motor vehicles exposed to salt water can rust out within weeks but thought that was unlikely to happen to the chrome molybdenum steel used in aircraft. He described an informal experiment he had carried out with a section of 22 mm aircraft steel tubing (Exhibit R6) which he had immersed for some weeks in sea water. It had developed surface corrosion which was starting to intrude into safe limits. The section of steel was not, however, taken from this particular aircraft nor, apparently, from any other Maule.
99. Mr Long conceded that he has no metallurgical qualifications and said that the respondent’s metallurgical section (now part of the Australian Transport Safety Bureau), “could give an answer”.
Severe corrosion in two other Maule seaplanes
100. At the resumed hearing on 7 June 2006, Mr Darren McGilvray gave evidence about two other Maule M-7-235 floatplanes, VH-AGX and VH-LRZ. Mr McGilvray has held an LAME license for over 20 years and has logged over 3,000 hours as the holder of a commercial pilot license.
101. During 1999, he was the owner of Port Aero, an air charter and aircraft maintenance business at Port Macquarie, New South Wales. He was contacted by Heli-Muster Pty Limited (Heli-Muster) to transport AGX and LRZ from Sydney to Hamilton Island, via Port Macquarie. Both aircraft were in the care of Hawker Pacific (Hawker) at Bankstown and had been bought by Heli-Muster from South Pacific Seaplanes Pty Limited in Sydney (South Pacific Seaplanes).
102. At the time, both aircraft had current maintenance releases issued by Hawker. AGX had accumulated about 2,000 hours of total time in service. Mr McGilvray saw them both in the Hawker hangar at Bankstown and, knowing that they had been repossessed in March 1999 by a finance company from South Pacific Seaplanes, he asked if there was any problem with them, and was told that there was not.
103. AGX was flown from Sydney to Port Macquarie, the intention being that it would continue its flight to Hamilton Island the following day. The day after its arrival at Port Macquarie, Mr McGilvray performed a daily inspection on AGX, LRZ having already departed for Hamilton Island. On examining AGX, not only as a pilot would do, but with his knowledge as a LAME, he became concerned by what appeared to be corrosion in structural areas and decided to take it to the Hibbard ferry ramp for closer examination. When he began to step-taxy the aircraft, the rudder cable control horn snapped, making the aircraft uncontrollable. He immediately let it off the step and taxyed back to the dock.
104. After inspection, it was decided that the wings should be removed and the aircraft transported to the Port Aero hangar, where it was dismantled and the fabric covering was removed. The machine’s internal structure and frame proved to be very seriously corroded. After further assessment, it was decided that AGX could not economically be returned to an airworthy condition and it was scrapped. Mr McGilvray reported the AGX incident to the Tamworth office of the respondent. In a discussion with a CASA airworthiness inspector a few days later he was informed that AGX’s previous owners had some problems with CASA and were permitted to remain in business on condition that they agreed to have their maintenance done by Hawker Pacific.
105. LRZ was dismantled at Hamilton Island, and it too was found to be badly corroded, but not as severely as AGX. Mr McGilvray was involved in refurbishing LRZ and as far as he knows it is now on land wheels and is operational.
106. Mr McGilvray does not have an unblemished record and has convictions for low flying and a number of other breaches of air law recorded against him. He is still in possession of his LAME and commercial pilot licenses, however. He has no interest in the outcome of these proceedings and I see no reason why his evidence should not be accepted.
107. The evidence of Mr Gary Arnold, a witness for the respondent, dovetailed with that of Mr McGilvray on that point. Before joining CASA, he was chief engineer with Hawker’s Bankstown maintenance facility for three years and a LAME for five years, part of the time as leading hand. At one stage he was Mr McGilvray’s supervisor, having recruited him from the air ambulance service to work at Hawker. He also served in the air force for 15 years as a fitter.
108. During his time at Hawker, Mr Arnold maintained AGX and LRZ for about 18 months, performing five or six periodic inspections on each machine. Initially AGX had been in better condition than LRZ, which had been submerged in water and rebuilt because of accident damage. Special attention was paid to it.
109. After Hawker began to maintain the two aircraft, their engineering department performed an evaluation of their condition, which included x-raying the fuselage framework. They found some pitting inside the tubes but it was not significant.
110. At their periodic inspections, both aircraft usually had some corrosion, especially in the tail area and around the float attachments. They were operated from Palm Beach and Cronulla. He did not know if they had been washed down after each flight, but said that would be pointless if they were parked on the water, as he apparently thought they had been. After they were repossessed by the finance company on 10 March 1999, they were taken straight out of the water and stored without being washed. He acknowledged that both aircraft, while holding current maintenance releases, had suffered catastrophic corrosion damage, resulting in airframe failure in one case, and said that such an occurrence should not happen but could.
111. The respondent submitted that the AGX and LRZ episodes were of little relevance and pointed out that there was no evidence about the operational use of other Maules in Australia or the United States. The applicant, on the other hand, contended that those instances showed that CASA was aware of the problems presented by the use of Maule seaplanes in salt water three years before BOG was inspected at Ballina, and criticised it for failing to issue an airworthiness directive or some similar instrument about the matter.
112. Whether CASA should or should not have taken action after becoming aware of the experience with AGX and LRZ is not in issue in these proceedings. Nevertheless, the evidence does show that two Maule M-7-235s operated in Australian coastal waters developed severe corrosion apparently in less than 12 months. Both held current maintenance releases issued by Hawker at the time the damage was discovered. The absence of any United States evidence about the problem is of little importance, given the acknowledged fact that in North America Maules generally or exclusively operate from rivers or fresh water lakes. The damage to AGX and LRZ occurred while they were in the care of a maintenance organisation that is highly esteemed, including by CASA, and the respondent does not suggest that Hawker failed in its duty in relation to the two aircraft in any way.
113. Mr Long said that he could not be sure that BOG had been corroded in January 2003 when the maintenance release was issued, but thought it probably would have been. He felt reinforced in that view by the informal experiment he had carried out on a piece of aircraft frame steel tubing. That was a rational and proper thing for him to do, but it was not a controlled experiment and the steel he used was not from BOG or, apparently, from any other Maule aircraft. Mr Arnold said that the corrosion might have accelerated at Broome but would have been present in January 2003 and that observable symptoms and indications would have revealed its existence.
114. The evidence about AGX and LRZ suggests that the alleged breach of the regulations by the applicant in issuing the January 2003 maintenance release may not be the only plausible explanation for BOG’s condition in January 2004. It raises the possibility that by reason of some aspect of design or manufacture, operating a Maule M-7 in sea water may give rise to rapid airframe corrosion that is not necessarily detectable when the aircraft is examined by a LAME in the approved way. Mr Hutson pointed out that corrosion can develop from the inside and spread outwards. That observation was not disputed, and is presumably the reason why x-raying an airframe is considered the best method of discovering corrosion. Mr Long in conclusion said that the CASA metallurgists’ section, which is now part of the ATSB, “could give an answer” to the question. The respondent did not, however, call a metallurgist to give evidence, although the case was adjourned part-heard for almost two months after Mr Long’s evidence was concluded.
Application of the law and findings of fact
115. The issue for the tribunal to determine is whether, on the evidence and material before it, the applicant’s aircraft maintenance engineer licence number 3229 and certificate of approval number C5167 should be cancelled. In his statement of facts and contentions, the applicant contends that “at the time the Maintenance Release A20351 was signed on 19 January 2003 the aircraft was airworthy and there was no evidence of corrosion in the aircraft. The Applicant contends that the aircraft was not properly maintained in the particularly corrosive environment in which it was operated after 15 April 2003, by the new owner” (Exhibit A1). The applicant also submitted that the maintenance carried out on the aircraft after 20 January 2003 namely:
6 May 2003 left-hand elevator removed
29 May 2003 new left-hand elevator serial number 123-L delivered by Maule Aircraft Australia
4 July 2003 maintenance by Cable Beach Air Maintenance including
replacing left-hand elevator
5 August 2003 (endorsement is undecipherable)
24 October 2003 maintenance by Cable Beach Maintenance included AD/INST 8 completed; wings removed for transportation; flaps removed and land undercarriage fitted with new hardware; refitting and replacement of new hardware and cables; and end board of left hand wing repaired
was extensive and would have necessitated the engineers carrying out the work, to work in the areas depicted as having serious corrosion. In particular, the replacement of the left hand elevator would have required the engineers to replace and re-cable the elevator and trim control cable which is all in the section containing the corrosion. He also submitted that at the time of the replacement of the floats with the land undercarriage, requiring the removal of the floats and dorsal fin, the corrosion “would have been exceedingly obvious to the naked eye and in particular to an Aircraft Maintenance Engineer” (Exhibit A1).
116. The respondent contended in its statement of facts and contentions (Exhibit R2) that the applicant breached regulation 42ZE(4) of the CAR because he made no certification in the log books in January 2003 for the corrosion and any other repairs to the aircraft that he stated took place in accordance with the items identified in the pre-purchase inspection report. Further, the applicant either (a) did not perform a proper or any inspection of the aircraft as required during the periodic inspection in January 2003 or (b) did perform a proper inspection of the aircraft, detected the corrosion, but did not make any endorsements on the aircraft’s maintenance release or the aircraft’s log book concerning the corrosion thereby breaching CAR 282(4)(a) by negligently performing a duty that he performed. The respondent submitted that he also breached CAR 43(13)(a) by issuing a maintenance release after the periodic inspection. As a result, he failed in his duty with respect to matters affecting the safe navigation or operation of an aircraft because he did not detect the corrosion, or if he did, he did not rectify it, and issued a maintenance release when he should not have (regulation 269(1)(c)) and is not a fit and proper person to have the responsibilities and exercise and perform the functions and duties of a holder of a LAME licence (regulation 269(1)(d)).
117. In the course of outlining the evidence above, I have drawn attention to certain strengths and weaknesses in various parts of it. In particular, I think the evidence of Messrs Furness, Smith and Hutson is to be preferred to that of Mr Thomas; that there is no credible evidence to show that the airframe had anything more than mere surface corrosion in January 2003, and expert metallurgical evidence that might have clarified the point one way or the other was not called; and that experience with two other Maule seaplanes, one of which suffered corrosion even more disastrous than that found in BOG, suggests that there may be some other explanation for the rapid deterioration of BOG that is consistent with Mr Furness’s having performed a proper periodic inspection in January 2003.
118. The respondent’s power to cancel a license or certificate arises “where CASA is satisfied that one or more of the following grounds exists …” (regulation 269(1)).
119. There is no formal onus of proof in Administrative Appeals Tribunal proceedings generally. Answers to questions such as what the tribunal should do if it is unable to reach a clear conclusion on an issue are more likely to be found in the statutes under which it is operating, or in considerations of natural justice or common sense, than in the technical rules relating to onus of proof developed by the courts (McDonald v Director-General of Social Security (1983) 6 ALD 6, at 9-10). As s 43 of the AAT Act places the tribunal in the position of the decision-maker, the tribunal should affirm the decision under review only if it “is satisfied” that the evidence supports the grounds for cancellation alleged by the respondent.
120. I find that the applicant failed to make the required certifications in the log book for the maintenance he performed on BOG during the January 2003 periodic inspection, including corrosion removal and treatment, replacing the magnetic compass fluid, adjusting the elevator trim indicator, replacing light globes, rectifying an antenna and repairing an exhaust pipe if in fact it was split. Further, in carrying out the rectification work he failed to follow FAA Advisory Circular AC43.13-1B in relation to the manner of corrosion treatment or the type of fabric to be used. There is no evidence, however, that his corrosion treatment methods or the fabric he used were in fact inconsistent with the requirements of the Advisory Circular. He also used a Maule fabric tester for the purpose of testing airframe tubes for corrosion, a use for which it was not authorised.
121. I find that if corrosion other than surface corrosion was present in BOG in January 2003, it was not detectable by the normal and proper methods used in a periodic inspection, though it might have been discovered in the airframe had been subjected to an x-ray examination. I make this finding on the basis that on the evidence the probabilities are evenly balanced and I am therefore not satisfied that the respondent’s assertion has been made out (see Miller v Minister of Pensions [1947] 2 AllER 372, 374 per Denning J; DC Pearce, Administrative Appeals Tribunal, Butterworths 2003, p81).
122. I therefore conclude that the applicant did not breach regulation 282(4)(a) or regulation 43(13)(a). He did, however, fail in his certification obligations under regulation 42ZE(1). He also infringed regulation 42V by replacing fabric without applying the applicable provisions of the aircraft’s approved maintenance data, but it has not been established that he infringed regulation 42W because the evidence does not show that the fabric used was actually of the wrong type.
123. That leads to the conclusion that the applicant falls within regulation 269(1)(c), but none of the other paragraphs in regulation 269(1), including paragraph (d).
124. License cancellation does not, however, inevitably follow from the existence of one of the grounds specified in regulation 269(1). The respondent has a discretion in that regard, and s 43(1) of the AAT Act gives the tribunal that same discretion. If the applicant had been shown to have carried out the January 2003 periodic inspection in a negligent manner, and in particular that he had failed to observe, and take appropriate action in relation to, observable non-superficial corrosion, his conduct would have constituted a clear threat to air safety and would fully have justified license cancellation. In view of the conclusion I have reached on that point, however, I do not think that the other contraventions he in fact committed were of such gravity as to make it unreasonable to exercise the discretion in favour of a person with an unblemished record as an aircraft maintenance engineer spanning more than 50 years.
125. I therefore conclude that certificate of approval C5167 and LAME license 3229 should not be cancelled.
126. Mr Glynn submitted that it might be appropriate to make the applicant’s certificate and license subject to restrictions, such as that he should undertake a course in relation to the treatment of corrosion. Mr Glynn did not refer to any particular provision as empowering the imposition of any such restriction, nor was there any evidence about the availability of courses of the type mentioned. If the power and the appropriate courses exist, however, that would be an appropriate condition to impose. It would also be appropriate that the applicant be required to sign a formal undertaking that he will in the future comply strictly with the reporting, certification and data requirements of the Civil Aviation Regulations. Although that obligation rests on a license or certificate holder in any event, in the circumstances I think Mr Furness should explicitly commit himself in that manner. It is simply not enough for him to rely on his experience alone, extensive though it is.
127. The decision under review is set aside and the matter is remitted to the respondent for reconsideration consistently with these reasons.
I certify that the 127 preceding paragraphs are a true copy of the reasons for the decision herein of Professor GD Walker, Deputy President
Signed: .....................................................................................
AssociateDate/s of Hearing 11, 12 and 13 April 2006 and 7 June 2006
Date of Decision 28 June 2006
Solicitor for the Applicant Mr John Glynn
Solicitor for the Respondent Mr Adam Anastasi
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