Gerald Repacholi Transcoast Enterprises Pty Ltd and Civil Aviation Safety Authority
[2015] AATA 374
•28 May 2015
[2015] AATA 374
| Division | GENERAL ADMINISTRATIVE DIVISION |
| File Number(s) | 2013/1433 |
| Re | Gerald Repacholi Transcoast Enterprises Pty Ltd |
| APPLICANT | |
| And | Civil Aviation Safety Authority |
| RESPONDENT |
DECISION
| Tribunal | Mr S Penglis, Senior Member |
| Date | 28 May 2015 |
| Place | Perth |
The Respondent’s decision to cancel the Certificate of Approval issued to Transcoast Enterprises Pty Ltd (Ref: 558820) is affirmed.
The Respondent’s decision to cancel Gerald Repacholi’s Aircraft Engineer’s licence is affirmed.
The Respondent’s decision to cancel Gerald Repacholi’s Flight Crew licences and Flight Radiotelephone licence is set aside with the effect that Gerald Repacholi remains the holder of such Licences.
.....(Sgd) S Penglis...................................................................
Mr S Penglis, Senior Member
Catchwords
CIVIL AVIATION - aircraft maintenance - aircraft maintenance engineer licence - Certificate of Approval - Breach of regulations - cancellation of licence - series of breaches -facts and circumstances
Legislation
Civil Aviation Act 1988 s 20AB(2)
Civil Aviation Regulations 1988
Civil Aviation Orders
Cases
Re Brazier and CASA (2004) AATA 313 26 March 2004
REASONS FOR DECISION
Mr S Penglis, Senior Member
Mr W Evans, Member
28 May 2015
INTRODUCTION
Transcoast Enterprises Pty Ltd (Transcoast) trading as West Coast Aircraft Maintenance is a company owned and operated by Mr Gerald Repacholi. He operates a number of Class B aircraft up to 5700kg primarily for airwork including crop spraying.
By a notice (pursuant to regulation 269 (3)) dated 6 September 2012, Mr Repacholi was asked to show cause why his pilot licences (ARN 019178) and aircraft engineers licence (AEL 019178) should not be varied, suspended or cancelled on the basis of the matters set out within the notice. Notices under this sub-regulation are required to be given to permit the holder of a licence or Certificate of Approval to show cause in the time specified by CASA in the notice, why the licence or Certificate of Approval should not be varied, suspended or cancelled under regulation 269. Mr Repacholi submitted a detailed response to CASA on 24 September 2012.
In a second show cause notice dated 10 October 2012 issued to Transcoast, CASA gave notice of facts and circumstances which it considered warranted the variation and/or suspension of the Certificate of Approval held by Transcoast Enterprises Pty Ltd (Transcoast) trading as West Coast Aircraft Maintenance (WCMC). In that same notice, CASA gave supplementary notice of facts and circumstances which CASA considered warranted the variation, suspension or cancellation of the AEL and other licences held by Mr Repacholi. Mr Repacholi submitted a detailed response to CASA on 12 December 2012.
On 19 March 2013 a delegate of the respondent, by way of written notice (the reviewable decision) decided to:
cancel Mr Repacholi’s Student Pilot Licence (SPL) dated 21 April 1966, Private Pilot Licence (PPL), Commercial Pilots (Aeroplane) Licence (CPL), Flight Radiotelephone Operator Licence (ROL) and Aircraft Engineer Licence (AEL) – collectively the Licences;
cancel the Certificate of Approval (COA) Number C558820 Issue No. 3 dated 27 July 2011 held by Transcoast Enterprises Pty Ltd ARN 558820 (Transcoast); and
furthermore, CASA decided that Mr Repacholi had so consistently breached the Regulations as to indicate a culture of non-compliance; and as a consequence, he was not a fit and proper person to exercise the privileges of an aircraft maintenance engineer licence.
This application is for a review of the three decisions made by CASA.
HEARING AND SUBSEQUENT DEVELOPMENTS
The matter was heard on 25 to 29 August 2014. Pursuant to directions made by the Tribunal at the conclusion of the hearing, the parties provided additional submissions in writing.
In March 2015, the Tribunal informed the parties, by their legal representatives, of its proposed decision and requested the parties to agree the terms of the orders to give effect to the proposed decision. The parties did so (and the Tribunal’s decision is substantially in those terms).
At that time, the parties, through their legal representatives, informed the Tribunal that, as part of the resolution of other, albeit related, proceedings before the Tribunal, it had been agreed between the parties that neither party would take steps to appeal from the Tribunal’s decision in this matter.
In light of those matters, the parties agreed that these reasons for decision need not be as comprehensive as they otherwise would be.
10. These reasons for decision proceed on that basis.
BACKGROUND
11. Mr Repacholi was granted his SPL in 1964, his PPL in the 1980’s, his CPL in 1993 and his LAME certification in 1999.
12. That part of the reviewable decision which cancelled the Certificate of Approval (COA) of Transcoast was made in accordance with sub-regulations 269(1)(b)(c) and (d) of the Civil Aviation Regulations (CAR).
269 Variation, suspension or cancellation of approval, authority, certificate or licence
(1) Subject to this regulation, CASA may, by notice in writing served on the holder of an approval, authority, certificate or licence (an authorisation), vary, suspend or cancel the authorisation if CASA is satisfied that one or more of the following grounds exists, namely:
(a)that the holder of the authorisation 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 authorisation 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 an authorisation;
(c)that the holder of the authorisation 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 authorisation is not a fit and proper person to have the responsibilities and exercise and perform the functions and duties of a holder of such an authorisation;
(e)that the holder of the authorisation 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.
That part of the reviewable decision which cancelled the AEL of Mr Repacholi was made in accordance with sub-regulations 269(1)(c) and (d) of the CAR.
That part of the reviewable decision which cancelled the SPL, PPL, CPL and ROL (the flight licences) of Mr Repacholi was made in accordance with sub-regulations 269(1)(d) of the CAR.
Mr Repacholi is the Aviation Manager and Chief Engineer of Transcoast Enterprises Pty Ltd. He performed maintenance tasks on aircraft operated by this company and/or those of associated companies owned by himself and/or his partner Ms Helen Nelligan. He also employed his son, Denis Repacholi as a pilot. His son, an unlicenced AME, also assisted him with aircraft maintenance on occasion.
On 27 March and 26 April 2013 Mr Repacholi applied for a stay of the reviewable decision pursuant to s41(2) of the Administrative Appeals Tribunal Act 1975 (AAT Act).
The Cancellation Notices in respect of the COA held by Transcoast and the AME Licence held by Mr Repacholi were stayed temporarily pursuant to an Order made by Deputy President Hotop of the Administrative Appeals Tribunal (Tribunal) on 23 August 2013 pursuant to s41(2) of the Administrative Appeals Tribunal Act 1975 (AAT Act).
The pilot licences held by Mr Repacholi are currently inoperative due to CASA review of his medical condition. This was the subject of a separate Application for Review in AAT proceeding 2013/3491 which was withdrawn pursuant to an agreement with the respondent.
The grounds for the decision maker to cancel the COA of Transcoast include inter alia:
(a)that as the Chief Engineer and Managing Director of Transcoast, Mr Repacholi was at all relevant times intimately involved with and aware of Transcoast’s operations and business such that for all intents and purposes, he is the controlling mind and will behind Transcoast’s operations;
(b)Mr Repacholi failed in his duty as a LAME on multiple occasions in a manner affecting the safe operation of aircraft maintained by Transcoast by:
i. failing to conduct maintenance in accordance with approved maintenance data contrary to regulation 42V of CAR;
ii. failing to certify for completion of maintenance in accordance with regulation 42ZE of CAR;
iii. conducting unauthorised maintenance contrary to s.20AB of the CAA;
iv. falsifying maintenance records;
v. installing components onto aircraft without establishing traceability of those components contrary to regulation 42W of CAR;
vi. issuing maintenance releases contrary to sub-regulation 43(7) of CAR; and
vii. being a party to the failure by Transcoast and other persons to comply with maintenance directions issued under regulation 38 of CAR and notices for the production of documents issued under regulation 301 of CAR.
The evidence before the Tribunal relates primarily to his activities as a LAME of 15 years standing. No submission or evidence was specifically put as to his actions as a pilot of some 50 year’s experience.
THE 2012 AUDIT
CASA conducted an audit of Transcoast at Narembeen Airport on 18 June 2012 and at Bunbury Airport on 19 June 2012 relating to Mr Repacholi’s operations as a LAME within Transcoast Enterprises Pty Ltd, resulting in 15 Non-compliance Notices (NCN) being issued.
Those NCNs comprise:
(a)Data and Document NCNs – 4
(b)Monitoring and Improvement NCNs – 1
(c)Tooling and Equipment NCNs – 1
(d)Stores and Distribution NCNs – 4
(e)Maintenance Activity NCNs - 5
The number of alleged recorded breaches totals 41; 1 against CAO 100.16 (Defective Materials/Parts), 4 against CAO 100.5 (Maintenance), 1 against CAR 51A (reporting of Defects in Australian Aircraft), 33 against CAR 30 (Certificates of Approval requirements) and 2 against CAR 42ZE (Schedule 6 maintenance).
Transcoast Enterprises Pty Ltd (Transcoast) held Certificate of Approval No. C558820 issue 03 dated 27 July 2011, authorising Transcoast, subject to certain limitations and conditions, to carry out maintenance of the following:
Maintenance of Aircraft:
· Class A and Class B aircraft not classified as Non Type Certificated Historical and Ex-Military aircraft not classified as Group 20.
· Piston engine aeroplanes with a maximum take-off weight not exceeding 5700 kg.
25. Transcoast’s COA authorised them to conduct aircraft maintenance work at Site 41 Lot 455 Bunbury Airport, West Coast Highway, Bunbury WA. In addition, permission was granted to undertake work at temporary locations provided all such work was carried out in accordance with the provisions of Volume 1, Section 02 Paragraph 2.3.4 of the Transcoast Enterprises Pty Ltd Policy and Quality Manual (the Manual). The Manual also lists Transcoast as performing maintenance activities at remote locations, namely:
Repacholi Aviation Pty Ltd, Narembeen Airfield, Narembeen, WA;
John Forrest Pty Ltd, Carnamah Airfield, Carnamah WA;
Repacholi Aviation Pty Ltd, Esperance Airport, Gibson WA;
Repacholi Aviation Pty Ltd, Goulburn Airfield, Goulburn NSW.
26. Paragraph 2.3.4 of the Manual states:
Remote Location Maintenance
There is no intention to carry out remote location maintenance other than as listed above however the Associated Operating Companies do carry out Charter and Aerial Work Agricultural operations that could require “Remote Location Maintenance”. The following would apply: - Engineering staff may carry out scheduled inspections including for Maintenance Release issue, component changes and routine servicing of aeroplanes in remote locations providing that they are able to take adequate precautions to ensure that the local environmental conditions will not compromise or in any way adversely affect the performance of the maintenance. All tools, data, servicing equipment and spare parts required to perform the particular maintenance will be provided from the Jandakot Airport Facility. (Tribunal Highlight)
The work undertaken under the Certificate of Approval was to be primarily carried out at Site 41 Lot 455 Bunbury Airport, South West Highway, Bunbury WA. CASA investigations failed to identify any Transcoast or associated company facilities at Carnamah, Goulburn or Esperance. Mr Repacholi in evidence, was unable to explain why this was the case, stating that he did perform operations at those locations.
It is convenient to deal with the alleged breaches of the Regulations by category rather than by addressing each individual breach in a chronological fashion or in relation to any particular aircraft. Only those breaches which were finally pressed by CASA are described.
24. The issues before the tribunal comprised evidence applicable to:
(a)Transcoast’s Policy and Quality Manual,
(b)Transcoast’s questionable and non-compliant aircraft maintenance processes, and
(c)Mr Repacholi’s tenuous relationship with CASA and his acceptability as a fit and proper person to operate an aviation business.
POLICY AND QUALITY MANUAL
25. The Transcoast Policy and Quality Manual (the Manual) states:
This policy and Quality Manual is to meet the legislative requirements for the Certificate of Approval to carry out maintenance of aircraft, specifically the maintenance of piston engine aeroplanes with a maximum take-off weight not exceeding 5700 kg issued under Civil Aviation Regulations 1988; and also states:
SYSTEM OF CERTIFICATION-
For aircraft maintenance shall be Schedule 6 of the Civil Aviation Regulations (1988) unless varied by this manual and approved by CASA. These certifications are made pursuant to CAR (1988) 42ZE.
26. The CASA audit identified two non-compliances with Schedule 6 maintenance requirements and 33 against CAR 30 regarding Certificate of Approval requirements. CASA also concluded inter alia that Transcoast demonstrated “Failure to maintain accurate written records in Aircraft Log Books and Maintenance Releases.”
27. The Transcoast Policy and Quality Manual records, at paragraph five of the Introduction, that it must be reviewed every 12 months. CASA maintained that the Manual has not been amended or updated since 2003 despite this audit and previous CASA audits allegedly identifying out-of-date processes/policies and advising Mr Repacholi accordingly. Failure to maintain the Policy and Quality Manual contravenes CAR 30 2B (c) and (e).
28. Mr Repacholi gave verbal evidence that he was engaging a Mr G C Hamilton, the original provider of the Manual, to review it in its entirety and to bring it up to date. He also stated that in the last ten years no-one (at CASA) had raised the issue of a requirement to update the Manual (despite it being at paragraph five of the Introduction in the Manual – Mr Repacholi’s own procedures document) and that it was (allegedly) not a finding at previous audits.
29. Under cross-examination, Mr Repacholi stated that “Mr Hamilton was no longer working on any of Mr Repacholi’s issues including the revision of the Procedures Manual.” Mr Hamilton was not called as a witness and was not asked to produce any evidence that would indicate he was being engaged by Mr Repacholi to update the Procedures Manual.
30. Mr Repacholi acknowledged that “a new Manual was necessary” … “and that it had not been updated for nine years”. He stated “that frequent changes (of maintenance procedures) by CASA and their changes in audit process depending on who conducted the audit, made it difficult to keep his Manual up to date”. Given that the Manual reflects the operational and maintenance procedures applicable within Mr Repacholi’s business only, was purportedly written by him, and was required to be updated regularly by him, his argument had little merit.
31. Furthermore, Mr Repacholi again stated that he had engaged Mr Hamilton to rewrite his current Manual but Mr Hamilton had not proceeded. Mr Repacholi then stated that he “has another Procedures Manual that he has had for at least five months, which he intends to duplicate, revise to his name, and actively follow”. No such Manual was produced in evidence.
32. Mr Repacholi did not provide a copy of the Policy and Quality Manual for scrutiny by the Tribunal until day 3 (27 Aug 2014) of the proceedings despite it being crucial to the hearing. When required to do so, he produced a manual that was clearly in need of major rewrite. It was evident that the information contained therein was inaccurate and that little if any attention had been or was being given to the requirement for a 12 monthly update.
33. At Page 7 of 10 of the Manual, headed “Manual Revision” it is stated that :
“Revisions to this manual shall be prepared under direction of the Chief Engineer who will review all suggestions/recommendations for change to ensure that all regulatory requirements and Company Directives continue to be met.”
“No amendments to this manual shall be incorporated until approval/acceptance of the amendment has been granted by CASA”.
34. It was very evident to the Tribunal that no amendments, save one in 2008 which extended tool calibration from every two years to every three years, have been made to the Manual since its inception on 18 May 2001. It was a requirement of the Manual that any revisions be made using Form WCAMF010. Neither Mr Repacholi nor CASA could produce any documents supporting any submission that may have been made for approval of any amendment.
35. It was also evident that Transcoast was no longer operating from Jandakot Airport as recorded in the Manual; indeed Transcoast has been operating from Bunbury Airport for some years. Failure to amend the Manual contravenes CAR 30 2(b).
36. In his decision, the CASA delegate found that the Policy and Quality Manual fails to address all the published requirements identified in the CASA Certificate of Approval Manual (COAM) and the Civil Aviation Advisory Publication 30-4 (1).
37. In his evidence in chief, Mr Repacholi gave a number of excuses about the failure of his Policy and Quality Manual to reflect the various addresses he used for Transcoast and associated companies which included a post office box at Canning Vale, and a business address as 9 Yampi Way, Willetton. Mr Repacholi had stated that he currently operated from an Australind post office box address. He offered no reasons for the discrepancies but insisted that he had advised CASA of the changes. CASA opined that he had never complied with CAR 30 in this regard but Mr Repacholi disagreed despite his being unable to produce any documentary evidence to support his claim.
38. NCN 350470 (13 counts) identified on a regular basis that Transcoast “is unable to demonstrate compliance with company documented procedures contained in the West Coast Aircraft Maintenance Policy and Quality Manual Volume 1 revision 01 dated March 2003.” The criteria being CAR 30 (2C) which states that a Certificate of Approval is subject to:
(b) a condition that the activities the certificate covers must be carried out in accordance with a system of quality control that satisfies the requirements of sub-regulation (2D).
39. NCN350471 (5 counts) identified that the company Policy and Quality manual is overdue for an effective review and amendment of the company procedures and the development of effective procedures to replace current policy statements.
40. CAR 30 (2D) states: A system of quality control must be in writing and must contain the following:
(a) The procedures to be followed in connection with the carrying out of the activities covered by the certificate that, in particular, includes procedures for:
(i) the control of the work carried out under the certificate,
(ii) the maintenance, control and calibration of equipment; and
(iii) the control of stores;
41. Mr Repacholi in evidence acknowledged that the matters raised in NCN350470 (13 counts) and NCN350471 (5 counts) were still outstanding and that they did require corrective action but when he gets the manual rewritten compliance will be achieved.
42. It was evident that Mr Repacholi had limited understanding of the meaning of quality control as it applies to aircraft maintenance processes. Evidence was produced demonstrating at the Narembeen premises, a lack of work area cleanliness and tool and equipment control procedures. Photographs produced by CASA show aircraft bodies, aircraft parts and assorted chemicals placed together inside the work hangar along with car parts, motorbikes and assorted equipment. Additionally, aircraft bodies and parts were widely distributed in the grounds adjacent to the hangar. A plethora of unlabelled parts were located on the mezzanine floor of the hangar and there was no parts register identifying each part’s origin, date of removal, condition or intent. There was also no register for controlled stores such as time-life items (eg instruments requiring calibration) although Mr Repacholi opined that his practice of using a list on a cupboard door was adequate (he failed to produce to the Tribunal, any proof of the stated calibration list). The state of the premises and lack of disciplined practices does little to engender confidence in the serviceability of any one component therein.
43. It was evident to the Tribunal that Mr Repacholi had not adequately addressed the issue of a Quality Control process and he could not produce any document that described that process such that it could be followed by himself or an employee.
44. NCN 350472 (2 counts) records that there is currently no documented evidence to demonstrate compliance of the company policies and procedures at all locations (as listed in the Manual) including temporary locations. Examples of this would be internal audit records, tooling and equipment registers, stores shelf-life registers etc held at each location. Mr Repacholi was of the opinion that he needed only one set of documentation as he used his laptop to access information when operating at another site.
This contravenes CAR 30 (2C) which states:
(a)A Certificate of Approval is subject to:
i.a condition that each activity the certificate covers must only be carried out at a place where the facilities and equipment necessary for the proper carrying out of the activity are available to the holder of the certificate.
45. CASA was of the opinion that the premises at Narembeen, whilst untidy and non-compliant, were superior to those of the main maintenance facility at Bunbury which appeared to lack the level of infrastructure and equipment needed for compliant maintenance activities.
46. Mr Repacholi was at a loss to explain the lack of facilities at Bunbury compared to the “remote location” of Narembeen.
47. NCN 350473 (1 count) records that the current organisational structure fails to identify the position holder responsible for the Quality Management of the organisation and the responsibilities of that person.
48. CAR 30 (2D) states: A system of quality control must be in writing and must contain the following:
(a) a description of the applicant’s organisational structure, the responsibilities of employees within the structure and the procedures to be followed by the employees in undertaking the activities covered by the certificate;
(b)a description of the resources for implementing quality management.
49. It was evident to the Tribunal that the Manual was less than adequate in describing the detailed organisational structure and resources necessary to conduct quality control at each of the locations ascribed therein.
50. Mr Repacholi’s attempts to dismiss the findings of the audit in regard to the Policy and Quality Manual and replace it with a revised edition, lacked conviction, and his demonstrated failure to initiate the timely rewriting of the Manual did little to engender any faith in his stated intents.
INTERNAL AUDITS
51. The Manual at Section 5, paragraph 5.1 records that internal audits are to be conducted at least every 12 months and must be carried out by an appropriately qualified person (paragraph 5.2.1). Paragraph 5.3.1 indicates that appropriate audit documentation be used, namely:
(a)Form WCAMF110 to be completed by the Managing Director for planning the objectives and scope of an audit;
(b)Form WCAMF115 to assist the Director in planning and scheduling audits;
(c)Form WCAMF120 to allow the Auditor to report to the Director on non-conformance and recommended corrective action;
(d)Form WCMF125 to allow the Director to detail preventative action and record action taken on non-conformances;
52. If no deficiencies are noted then the form WCAMF110 should be returned to the Director showing NIL deficiencies and filed.
53. NCN 350477 identified (5 counts) and NCN 30471 (1 count) that the internal audit procedures required by the Manual (paragraph 5.3.1) and purportedly adopted by Mr Repacholi, were severely lacking in detail and action. For example, when asked to produce the company audit scoping form WCAMF110 for the 2011 internal audit, the audit worksheet or checklist, Mr Repacholi was unable to do so.
54. In evidence, Mr Repacholi declared that he was qualified and experienced enough to conduct audits of his own companies. He now “no longer intended to conduct these audits himself but would employ a suitably qualified independent auditor in future”. The Tribunal noted that his comment appeared reactionary and lacked credibility.
55. Mr Repacholi insisted that he had conducted the 2011 internal audit in accordance with the Manual and that all the documentation including the Policy Manual, was contained in the package of documents that he had given to the CASA audit team (Mr Deal) the day after the audit. CASA denied having been given that extent of documentation and Mr Repacholi retorted that Mr Deal (the audit team leader) was mistaken in what he was or was not given in the way of documents. Again, Mr Repacholi failed to produce or submit the audit documents to the Tribunal in his defence. He also stated that he had not conducted any internal audits since 2011 as CASA had grounded all his aircraft and he saw no point in doing an audit.
56. It was clear to the Tribunal that Mr Repacholi’s argument about the internal audit process and recording of same by him, lacked credibility.
TECHNICAL LIBRARY AND DATA
57. Section 3.15 of the Manual confirms that the Chief Engineer is responsible for the updating and maintenance of the Technical and Engineering Library. A combination of hard-copy and electronic subscription services are said to comprise the technical library of Transcoast. Section 3.15.3 states:
“Hard copy versions of manufacturer’s data is held for the aircraft and their associated engines. A valid subscription service is in place for these manuals”.
58. Under CAR 30 (2A), in considering the issue of a COA, CASA must be satisfied that the applicant (Transcoast) is able to carry out the activities in a satisfactory manner. CAR 30 (2B) states that in deciding whether it is satisfied as mentioned in sub-regulation (2A), CASA must have regard to:
(c) the arrangements made to ensure that the applicant has and will continue to receive, the information necessary for the carrying out of those activities.
59. NCN 350478 (2 counts) dealt with the failure by Transcoast to maintain the currency of approved aircraft technical maintenance data essential to any aircraft maintenance activity. In particular CASA identified the data used to maintain the Cessna 188 AgWagon aircraft was out of date and Transcoast had failed to identify and action six temporary revisions dating from April 1992 to January 2008.
60. CASA contended that with the exception of access to the Thrush and Airtractor aircraft web site, the company could not demonstrate a subscription service to amend and maintain maintenance data for the aircraft or sub-components that it has a duty to maintain.
61. Mr Repacholi denied any deficiency in this regard, stating that he has on his laptop, an icon that when clicked takes him to the Cessna website from which he extracts the latest data before commencing any maintenance. He does not subscribe to any particular data service for the Cessna aircraft, or the Thrush or Airtractor aircraft, instead for the latter types, he uses the website of a friend in the United States and downloads the information from there. He further stated that his son was asked the question about the data subscription service by the auditor on 19 June 2012 at Bunbury but was unable to give the answer as he was not privy to the laptop information or its workings. Mr Repacholi had not sought his son’s appearance at the hearing as his son was employed some 700 kilometres away and it was not economical for him to give evidence.
62. Mr Repacholi was unable when asked, to demonstrate to the Tribunal, the access to the subscription websites as he had failed to bring his laptop to the hearing. Mr Repacholi’s attitude appeared to be that he knew what he was doing with aircraft maintenance and that the Tribunal should just accept that. He apparently did not feel it necessary to support his case with any hard documents or any other form of information.
63. Mr Repacholi stated in evidence that he maintains all his aircraft to Schedule 5 despite what is stipulated in the Policy Manual. Mr Repacholi stated: “that he follows what the Americans do with these aircraft types and that the Cessna original aircraft manufacturer (OEM) is only now catching up. Cessna Temporary Revisions are not mandatory”. CASA was of the opposite opinion, stating that the Temporary Revisions are essential to aircraft maintenance, airworthiness and safety.
64. CASA identified six Temporary Revisions dating from April 1992 to January 2008 applicable to the Cessna model 188 and T188 series of agricultural aircraft operated by Transcoast which had apparently not been actioned by Transcoast.
65. CASA insisted that it was mandatory for Temporary Revisions and ADs to be identified and actioned as per CAR 42V which requires:
42V Maintenance: approved maintenance data
(1)A person carrying out maintenance on an Australian aircraft must ensure that the maintenance is carried out in accordance with the applicable provisions of the aircraft’s approved maintenance data.
66. CASA opined that Transcoast was negligent in ensuring CAR 42V was complied with.
67. Mr Repacholi recounted that he accessed the CASA website for Airworthiness Directives (ADs) and those of other aircraft manufacturers as required and he did not need any hardcopy documents. Mr Repacholi also recounted that he used Schedule 5 for the maintenance of his aircraft and that Temporary Revisions were not mandatory. CASA conceded that the use of electronic access was an acceptable approach and dropped the argument as Mr Repacholi failed to grasp that he was supposed to use Schedule 6 for all maintenance as per the authorisation of his COA.
68. Mr Repacholi argued that in regard to engine maintenance, Pratt & Whitney Overhaul Manuals are available to him but are no longer published by P & W. He acknowledged that he did NOT have a subscription service with Pratt & Whitney so he uses the Thrush and Airtractor websites for information about these engines. Again, he offered no evidence of this practice to the Tribunal.
SYSTEM OF CERTIFICATION OF COMPLETION OF MAINTENANCE
69. The system of certification of completion of maintenance is an essential component of the regulatory framework dealing with maintenance conducted on Australian aircraft in Australian territory. It enables a pilot or operator of an aircraft to know, with some certainty, the airworthiness status of an aircraft. To certify completion of maintenance in accordance with the Regulations is, therefore, a very serious matter.
70. A valid maintenance release must be in force if the aircraft is to be regarded as airworthy. A fresh maintenance release is issued after completion of each periodic inspection. The CASA Maintenance Schedule, which is set out in Schedule 5 to the Regulations, provides that for a Class A or B aircraft that is not a private aircraft, a periodic inspection must take place on an annual basis, or after the aircraft has been in service for 100 hours following the most recent general maintenance inspection on the aircraft (paragraph 2.4).
Sub-regulation 43(7) provides that a maintenance release shall not be issued in respect of an aircraft unless all maintenance required to be carried out to comply with any requirement or condition imposed under the Regulations, has been certified in accordance with reg 42ZE or reg 42ZN to have been completed.
72. As reg 42ZN refers only to maintenance of aircraft outside of Australia, it is not relevant to this matter.
73. Regulation 42ZE provides that a person who carries out maintenance on an Australian aircraft in Australian territory must ensure that completion of maintenance is certified either in accordance with an approved system of certification of completion of maintenance or, alternatively, the CASA system of certification of completion of maintenance. Maintenance performed by employees of an employer who holds a Certificate of Approval or an aircraft maintenance engineer licence is taken to be carried out by the employer and not by the employees.
74. As Transcoast did not have an approved system of certification of completion of maintenance (Schedule 5), it was required to use the CASA system of certification of completion of maintenance, which is set out in Schedule 6 to the Regulations. Schedule 6 is the stated regimen of the Policy and Quality manual for Transcoast.
75. Schedule 6 to the Regulations provides, so far as it is relevant to this matter, that certification must be made for:
(a)the completion of each stage of maintenance, and the completion of an inspection under reg 42G(2);
(b)coordination of maintenance; where more than one person performs stages of maintenance within a category of maintenance, or where maintenance within more than one category of maintenance is carried out and more than one person performs that maintenance; and
(c) completion of maintenance when all of the maintenance required to be carried out on an aircraft at a particular time, and if maintenance is required to be coordinated, coordination of the maintenance, has been completed and certified.
76. Paragraph 2.3 of Schedule 6, so far as it is relevant, provides that certification for completion of a stage of maintenance or an inspection under reg 42G(2) must be made:
(a)in the documents kept by the person carrying out the maintenance as a record of carrying out of the maintenance; or
(b)in the aircraft logbook or approved alternative maintenance record for the aircraft.
77. At the relevant time, there was no approved alternative maintenance record for any of the aircraft that were the subject of the CASA investigation.
78. Schedule 6 paragraph 2.5 states that a certification for completion of a stage of maintenance must, amongst numerous other things:
(a)be signed by the person making the certification;
(b)include the licence number and Certificate of Approval number of the person making the certification;
(c)include the date on which the certification was made;
(d)if a special inspection was carried out, set out what was found as a result of that inspection; and
(e)include a list of Airworthiness Directives complied with in the course of carrying out the maintenance and set out any defects found in complying with those directives.
79. Mr Repacholi, in his evidence, stated that he was the Aviation Manager and Chief Engineer of Transcoast Enterprises Pty Ltd trading as West Coast Aircraft Maintenance and that he performed maintenance tasks on aircraft operated by this company and/or those of associated companies owned by himself and/or his partner Ms Helen Nelligan. He also employed his son, Denis Repacholi as a pilot. His son also assisted him with aircraft maintenance on occasion.
80. Relevant aircraft were identified as 4 Cessnas and 9 crop-dusters, mainly owned by Mr Repacholi and/or his partner (Ms Nelligan). Mr Repacholi stated that he performed very little public work as a LAME.
81. The Manual at Volume 1, Section 3 requires inter alia, that all aviation work is to be entered into the Job Register (Form WCAMF030) and assigned a job number, and the details of the client and the job description are also to be recorded. Additionally, the Chief Engineer is to raise a Work Package for all scheduled maintenance.
82. Section 3, Paragraph 3.2.5 states that the work package will consist of copies of the schedules in accordance with the aircraft’s Logbook Statement, or System of Maintenance, for the maintenance to be performed and include copies of Forms Worksheet WCAMF035, AD and Special Inspection Worksheet WCAMF038 and Coordination Certification sheet WCAMF040. Unscheduled maintenance work packages shall consist of manufacturers’ check sheets (if appropriate) and WCAMF forms as applicable. Details of the Job number, Aircraft Registration, Time in Service information, Client details (if appropriate) and task description are transcribed from the Job register and aircraft records. All certifications are to be made pursuant to CAR (1988) 42ZE with the System of Certification being Schedule 6 of CAR (1988).
83. NCN 350479 (2 counts). A review of the aircraft log books and current company records for VH-KQZ, RGK, RRI and THD identifies various CAR 42ZE (Schedule 6) entries for certifications as being incomplete as the licence and job numbers are not present, block certification signatures are unreadable, inconsistent recording of parts, materials and components used during maintenance, and recordings of findings against Airworthiness Directives are not always present. This means the entries are not in accordance with CAR 42ZE.
84. Mr Repacholi’s response was that all block signatures now have the licence number entered and that all ADs are listed and always have been. He failed to grasp the fact that the non-compliance issues had not been addressed.
85. The work packages for these aircraft require some 17 pages of information. Mr Repacholi insisted that the audit is inaccurate and that non-essential pages are not kept. He opined that worksheets need only be kept for 12 months then destroyed and that it was his practice to do so.
86. The evidence then moved to log book entries for VH-BWW to exemplify the lack of accuracy by Mr Repacholi in his administration of maintenance records.
87. Log Book page 74 was tendered. At line 8, Mr Repacholi on 30 September 2007 entered “See W/s” and left the line blank. This was as the page was found during the audit on 19 May 2010. However, on 10 August 2012 that same page at line 8 showed “see W/s –SB-T-Rev # 5.” This represented Service Bulletin Temporary Revision No.5. Mr Repacholi failed to annotate this alteration on the Control Sheet and CASA alleges that he made the entry to page 74 of the log book as a consequence of the audit report in an attempt to disguise his lack of accuracy in record keeping.
88. Under cross-examination, Mr Repacholi admitted he “had made the entry sometime after 19 May 2010 and before 10 August 2012, allegedly using historical data from a worksheet that he must NOT have destroyed at the 12 month point”. This is despite his previous statement that he destroyed all worksheet packages after 12 months. Mr Repacholi stated that “he may have some old records in storage somewhere that could be over 12 months old.”
89. On 15 April 2010 Mr Repacholi recorded in the Log Book Maintenance Log pages 3 and 4 for Cessna 182Q VH-BZM a start TTIS of 1719-6 hours and that all records had been transferred from USA log books. He performed a 100 hourly, 23 ADs and other work such as an engine cylinder leak test and had a stainless steel I.D. plate fitted. No details of the actual work done against each AD are recorded. Mr Repacholi stamped his Maintenance Co-ordinators Certification on that Maintenance Log dated 22 April 2010.
90. On 3 July 2011, Mr Repacholi records on page 5 of the Log that 6 hours were added to the TTIS now totalling 1725 hours and that he performed a time-required 100 hourly plus 20 ADs and another engine cylinder leak test. No details of the actual work done against each AD are recorded. He signed the Certification as having performed all the work in one day, 3 July 2011.
91. On 4 July 2012 (T-Doc1009) he recorded that the aircraft TTIS had increased by 8 hours and five minutes to a TTIS of 1734 hours 1 minute.
92. This latter record shows Mr Repacholi certifying a time-required 100 hourly and 39 AD’s being done along with temporary revisions without any detail of the actual item-work done being written in the log book. The work was all allegedly done in a single day as he signed the Certificate on 4 July 2012. It was alleged by CASA that some of these certified AD’s are not applicable to this aircraft, but were entered anyway and Mr Repacholi failed to certify for compliance those ADs which were applicable.
93. The performing of all these 100 hourly and AD activities as single-day occurrences demonstrated a lack of awareness of his LAME responsibilities and disregard for procedural detail.
94. Further, Mr Deal for CASA in his written evidence at paragraph 58 opined it would not have been possible for Mr Repacholi on 4 July 2012, to have performed the 100 hourly, the ADs and the temporary revisions in less than 155 hours even with the help of his son Denis (and there was no evidence that Denis had participated). This is based on the estimate of 22-26 hours for the 100 hourly, 30+ hours for the applicable ADs, the Temporary Revisions taking at least 100-150 hours and the Corrosion Program requirements taking 3-5 hours. No allowance is calculated for any rectification work resulting from the activity.
We find that, by signing the maintenance release (T-Doc 1087) on 4 July 2012 for aircraft VH-BZM, Mr Repacholi breached reg 43(7)(a), in that he issued a maintenance release in respect of an aircraft when all maintenance in respect of that aircraft required to be carried out under the Regulations had been certified as having been completed when indeed it could not have.
96. It was noted by the Tribunal that at T-doc 994, the (cockpit?) photograph of the registration plate for this aircraft is stamped as VH-BMZ not VH BZM. In the Maintenance Log dated 15 April 2010, Mr Repacholi recorded that a stainless steel ID plate had been fitted and it appears that if this is the same ID plate, then it is a mistake that should have been picked up by the Chief Engineer. VH-BMZ is registered as a Piper PA28 R200 registered and operating in Bridgetown WA.
97. Mr Deal in his written statement at paragraph 27 in reference to the Cessna Temporary Revision 5 (TR5), suggests that a supplemental Inspection and Corrosion Prevention Program requires several different types of inspection methods to determine airworthiness across some 23 areas of specific inspections. The log book compliance entry for VH-BZM was limited to “bulkhead, aft spar fitting, rear carry thru spar +spar block +all fittings, tail section inspected ref T/rev 5”. The entry does not provide any findings or results of the inspections or which special inspection process was employed. In effect, it is impossible to reconcile certification in compliance with TR 5 and fails to comply with CAR 42ZE Schedule 6 or CAO 100.5 (3).
98. CASA then raised the issue of a non-destructive inspection (NDI) on aircraft VH-BWW whereby Mr Repacholi had performed a red die inspection for crack detection whereas a flouro-penetrant inspection was necessary. Mr Deal conceded that Mr Repacholi was permitted to perform black-light red die inspections but was of the opinion that for a 500 hourly it must be a flouro-penetrant inspection which is degraded if the red die test is performed first. Mr Repacholi was not qualified to conduct the flouro-penetrant inspection process. The Tribunal felt that the issue went nowhere other than to exemplify Mr Repacholi’s practice of doing things his way regardless of the rules.
99. The Applicant called Mr Bristow-Stagg (B-S) of Northam Air Services to give evidence. He (B-S) had been informed that seven aircraft under Mr Repacholi’s charge were the subject of Show-Cause Notices issued by CASA. At Mr Repacholi’s request, B-S had conducted airworthiness checks on two aircraft VH-DKW and VH-RRI, each the subject of cancellation of their respective Certificates of Airworthiness (COA) by CASA due to inaccurate log books and maintenance data. B-S had spoken with CASA’s Messrs Byfield, Green and Moss about his intended approach to resolving the issues for each aircraft, which they had accepted. Subsequently, Mr Green advised Mr Bristow-Stagg that all the aircraft were rejected for COA renewal.
CASA were particularly concerned about the lack of log-book history following the loss of the original American log book/s for VH-BZM (formally VH-CJM and previously N18277), purportedly in an airfield flood when the aircraft was in America. An attempt had been made to raise a new log book for this aircraft but it was rejected by CASA. Mr Bristow-Stagg has been unable to resolve the log book issues and therefore cannot undertake any further work on these aircraft. He is of the opinion that each aircraft was technically airworthy and could be returned to the COA Register if the log book issue was resolved.
Mr Bristow-Stagg stated that he had “identified additional ADs to those identified in the CASA audit and that he was in general agreement with the CASA version of the audit findings. The two aircraft he had inspected for airworthiness compliance (VH-DKW and VH-RRI) were currently at Narembeen airfield and CASA would not issue an approval to fly them to Northam airfield for further certification work.”
It became apparent to the Tribunal that there was a discrepancy of 500 hours Total Time in Service in the log book for VH - DKW. Mr Bristow-Stagg had been informed by Mr Deal that CASA engineering department can provide a formula to determine whether the missing hours can be incorporated and allow the aircraft to be returned to service.
CASA then has the power to restore the aircrafts’ COA using this particular formula to determine acceptable Aircraft Total Time in Service (TTIS), engine and propeller times. However, the cost and the volume of work required precluded any further action by Mr Bristow-Stagg.
Both CASA and Mr Repacholi acknowledge that there has been continuing tension in their communications over many years. Mr Repacholi emphasised his inability to work with CASA’s Mr Deal (Certificate Management Team Leader – Team 3 Western Region), accusing him of biased and targeted audit action against Mr Repacholi.
Mr Deal’s evidence concentrated on the analysis of the 2012 audit findings which in his opinion “disclosed an alarming and widespread lack of compliance with the maintenance requirements ….poorly kept records …so deficient that it was not possible to verify the airworthiness of any of the aircraft” (subject of the Audit). In his written statement, Mr Deal recorded that his “findings and conclusions formed the basis of the Non Compliance Notices (NCNs) and underpinned the decisions to cancel the Certificates of Airworthiness. The identified deficiencies were extensive and included a lack of proper details as to maintenance tasks recorded and certified as performed, lack of traceability of components and equipment on the aircraft (sic), missing parts of the log books, entries which had been altered or otherwise tampered with, and claims that extensive maintenance tasks were performed in unfeasibly short time frames and with an absence of any corroborating material.”
In cross-examination, Mr Repacholi acknowledged that the aircrafts’ paperwork was not always accurate. It was put to Mr Repacholi, the requirement under CAR 30 for the quality control of maintenance records, with CASA stating that no control sheet was evident that reflected:
(a)the Maintenance Control Programme for each aircraft;
(b)parts ordered, parts held, parts used (for each aircraft);
(c)the shelf-life of appropriate items and their expiry date and re-order action;
(d)the tool-calibration start date and recalibration date;
(e)the job register;
(f)the work package obligations, showing the interconnectivity of entries between the job number, the job register, component worksheet and aircraft worksheet; and
(g)the maintenance release.
Mr Repacholi attempted to allay these observations by saying that he had alternatives such as:
a.he did not hold parts - he ordered them in from suppliers as needed and fitted them accordingly (despite the 2012 Audit identifying unrecorded aircraft parts in various states of repair, distributed throughout the workshop hangar in Narembeen);
b.his belief that the Log book is a substitute for the Controlled-Parts (timed-life) register and that he has not done anything to rectify the need for the Controlled-Parts register as required by CAR 30 (2D);
c.he has a note on the calibrated tools cupboard that shows which tools require recalibration and when (no such document was produced in evidence);
Mr Repacholi admitted that in the case of VH-RQI, a particular job was recorded on 8 May 2012 but the Maintenance Release appropriate to that part was signed on the 7 May 2012, the day before. He also agreed that he was non-compliant with the work package entries for four aircraft and the signatures on paperwork were unreadable. He acknowledged that LAME certification must coincide with LAME qualifications to certify particular work as it affects airworthiness certification.
Mr Repacholi was then asked to describe his utilisation of aircraft maintenance Data Subscription Services such as those provided by Cessna Aircraft Corporation and Pratt and Whitney (engines). Mr Repacholi re-stated that he did not subscribe to on-line services of this nature. Instead, he utilised hard-copy reference material for Cessna aircraft but did refer to a friend’s internet site in the USA for Temporary Revisions data prior to commencing any work on an aircraft. He does not subscribe to the Pratt and Whitney engine data service, instead he uses information from the internet. To this end, Transcoast’s Policy and Quality Manual at Vol 1, Section 2, Page 2 Paragraph 2.2.2.5 states that the Chief Engineer (Mr Repacholi) shall (inter alia) “be responsible for ensuring that all Civil Aviation Legislative material is obtained, amendments are obtained and incorporated and made available to all staff having a need to access these publications/documents.”
Mr Repacholi stated that all his aircraft are maintained under Schedule 5 and that he follows what the Americans do with these aircraft types. He did not agree with CASA’s view that Cessna Temporary Revisions are mandatory, as under Schedule 5 that is not the case.
CASA’s Mr Deal under cross-examination, stated that Temporary Revisions are mandatory.
Whilst Mr Repacholi may elect to maintain all his aircraft under Schedule 5, that is not what is stated in the Policy and Quality Manual (page 9 of 10) which clearly states that Transcoast (trading as West Coast Aircraft Maintenance) uses Schedule 6.
Mr Repacholi failed to produce evidence to support any notification to CASA on the election to adopt Schedule 5. This is in contravention of CAR 42 J, 42 K and 42 L which state:
42J System of maintenance: request for approval
(c)The holder of the certificate of registration for an Australian aircraft may, in writing, request CASA or an authorised person to approve a system of maintenance for the aircraft.
(2)The request must be accompanied by a copy of the system.
42K System of maintenance: submission to CASA
CASA may, under regulation 38, direct the holder of the certificate of registration for a class B aircraft:
(a)to develop a system of maintenance for the aircraft; and
(b)to submit the proposed system to CASA for approval.
42L System of maintenance: matters to be included
A system of maintenance for an aircraft must include:
(a)a schedule that:
(i)sets out the regular maintenance inspections, tests and checks to be carried out on the aircraft; and
(ii)sets out when those maintenance inspections, tests and checks are to be carried out; and
(iii)nominates one of the maintenance inspections referred to in subparagraph (i) as the inspection to be carried out for the purposes of determining whether a maintenance release should be issued for the aircraft; and
(b)a schedule that sets out the inspection to be carried out on the aircraft if it has been struck by lightning and when that inspection is to be carried out; and
(c)a schedule that sets out the inspection to be carried out on the aircraft if abnormal flight or ground loads have been imposed on the aircraft; and
(d)a schedule that sets out the time-lifed aircraft components included in the aircraft and when each of those components is to be retired, overhauled or removed; and
(e)a schedule that sets out the procedures to be followed in carrying out the inspections, tests and checks required by the system of maintenance; and
(f)if permissible unserviceabilities have been approved for the aircraft under sub-regulation 37(1) in the form of a minimum equipment list—that list; and
(g)a statement that sets out:
(i)the name of the holder of the certificate of registration for the aircraft; and
(ii)the type, model and registration mark of the aircraft.
The Respondent had worked through each of the Non-Compliance Notices issued following the 2012 Audit. It transpired that Mr Repacholi’s interpretation of Work Package procedures differed heavily from that required to maintain sound records of aircraft maintenance. Mr Repacholi asserted that Work Packages need only comprise relevant pages as he saw them and that many pages appeared superfluous. He asserted that Work Packages need only be kept for 12 months and these are then destroyed and that this was his practice. This was despite Transcoast’s Policy and Quality Manual recording that all records including Work Packages be held for 7 years (Vol 1, Sect 03, para 3.16.1 page 9 of 9). Mr Repacholi was dismissive of the fact CASA was able to produce to the hearing Transcoast work package history several years old, thus belying his alleged practice.
In Brazier and CASA (2004) AATA 313, Member Fice at 187 records:
“The system of certification of completion of maintenance is a central plank in the Regulations dealing with the maintenance and repair of aircraft. It is essential to the safe operation of aircraft, as it is the only means by which it is possible to determine whether all maintenance required to be performed on an aircraft has been performed in accordance with the requirements of the Act and the Regulations. Without accurate certification of the completion of stages of maintenance by a licenced aircraft maintenance engineer in accordance with Schedule 6 to the Regulations or a system of certification approved by CASA, there can be no certainty that, when a maintenance release is issued for a particular aircraft, its state of airworthiness is accurately described on that document. The breakdown in a maintenance organisation of the system of certification of completion of maintenance is a very serious matter indeed.”
Having regard to all of the above, the Tribunal concludes that the respondent’s decision to cancel the Certificate of Approval issued to Transcoast Enterprises Pty Ltd and its decision to cancel Mr Repacholi’s aircraft engineer’s licence is affirmed.
It is thus unnecessary for the Tribunal to deal with the respondent’s further submissions concerning Mr Repacholi’s approach and attitude to the respondent and the obligations arising from the holding of certificates of approval and aircraft engineer’s licences.
PILOTS LICENCE
The Tribunal sees no reason why the above conclusions ought deny Mr Repacholi of the ability to fly aircraft (subject to him obtaining the necessary medical certifications).
None of the evidence before the Tribunal indicated that Mr Repacholi was not a safe pilot. In short, the respondent’s position was that someone who had the approach to the respondent and the obligations imposed upon the holder of a certificate of approval and aircraft licence such as that shown by Mr Repacholi ought not be permitted to fly an aircraft. In this regard, it was submitted that someone who had such a disregard for authority and the regulations relating to the holders of a certificate of approval and an aircraft licence would in a similar way likely disregard the regulations with respect to flying an aircraft.
The Tribunal rejects that submission.
Put simply, there was nothing in the evidence to suggest that Mr Repacholi was anything other than a safe and careful pilot who complied with all relevant regulations in that regard.
For those reasons, the respondent’s decision to cancel Mr Repacholi’s flight crew licences and flight radiotelephone licence is to be set aside with the effect that Mr Repacholi remains the holder of such licences.
| I certify that the preceding one hundred and twenty-two (122) paragraphs are a true copy of the reasons for the decision herein of Mr S Penglis, Senior Member, Mr W Evans, Member |
....(Sgd) A Tran....................................................................
Associate
Dated 28 May 2015
| Date(s) of hearing | 25 to 28 August 2014 |
| Counsel for the Applicant | Mr P Lithgow |
| Solicitors for the Applicant | Maitland Lawyers |
| Counsel for the Respondent | Mr B Shields |
| Solicitor for the Respondent | Mr A Carter |
Key Legal Topics
Areas of Law
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Administrative Law
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Civil Aviation
Legal Concepts
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Judicial Review
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Administrative Decisions (Merits Review)
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Breach of Contract
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Causation
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Regulatory Compliance
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Stay of Proceedings
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