Grant and Civil Aviation Safety Authority

[2007] AATA 2055

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2007] AATA 2055

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No Q 200600581

GENERAL ADMINISTRATIVE DIVISION		)
Re		GEORGE GRANT

Applicant

And CIVIL AVIATION SAFETY AUTHORITY

Respondent

DECISION

Tribunal Deputy President P E Hack SC

Date14 December 2007

PlaceBrisbane

Decision

The Tribunal:
1. sets aside the decision under review;

2. substitutes a decision that the aircraft maintenance engineer’s licence of the applicant be suspended for a period of two months;

3. specifies pursuant to s 43(5B) of the Administrative Appeals Tribunal Act 1975 (Cth.), that the decision is not to come into operation until midnight on 21 December 2007;

4. certifies that the proceedings have terminated in a manner favourable to the applicant.

...............Signed................

Deputy President

CATCHWORDS

CIVIL AVIATION – licensed aircraft maintenance engineer – applicant falsified aircraft maintenance record and lied to respondent – whether applicant was fit and proper person to hold a licence – maintenance work on Hughes 269B helicopter – false information given to CASA as to dates and work completed – applicant’s conduct fell short of standards expected – applicant’s departure from required standards was an aberration – decision under review set aside and period of suspension imposed

Administrative Appeals Tribunal 1975 (Cth.) – s43(5B)

Civil Aviation Regulations 1988 (Cth.) – regs 30, 31, 50, 269(1)(d)

Civil Aviation Act 1988 (Cth.) – ss 9A, 20AB(2)(a)

Hughes and Vale Pty Ltd v New South Wales (No 2) (1955) 93 CLR 127

Stasos v Tax Agents’ Board (NSW) (1990) 21 ATR 974

Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321

Re Taylor and Department of Transport (1978) 1 ALD 312

Re Griffiths and Civil Aviation Authority (1994) 34 ALD 554

Shi v Migration Agents Registration Authority (2007) 158 FCR 525

REASONS FOR DECISION

14 December 2007 Deputy President P E Hack SC    

Introduction

1.Mr George Grant has been a licensed aircraft maintenance engineer (LAME) for over 25 years. In late 2005 and early 2006 he falsified an aircraft maintenance record and lied to the Civil Aviation Safety Authority (the Authority) when it was undertaking an investigation into this incident.

2.Mr Grant was prosecuted in the criminal courts and fined a substantial sum. The Authority contends that his conduct warrants the cancellation of his licence. Its decision of 9 August 2006 to cancel Mr Grant’s licence is the subject of these proceedings. The Authority contends that Mr Grant was not a fit and proper person to hold a licence as an Aircraft Maintenance Engineer. Alternatively, it contends that his licence should be suspended for a period between 6 to 12 months.

Background

3.There is very little dispute about the facts. Mr Grant is a self-employed LAME. He is now 62 years old. He served in the Royal New Zealand Air Force as an aircraft maintenance engineer between 1965 and 1978. He obtained a New Zealand aircraft maintenance engineer licence in 1979 and an Australian licence in 1991 when he came to this country. In all of that time he had not come to the adverse attention of the Authority.

4.Mr Grant’s licence permits him to certify for the completion of maintenance of fixed-wing aircraft and helicopters including, relevantly, the Hughes 269 B helicopter.

5.The Australian-registered aircraft VH-TGC is a Hughes 269 B helicopter. In November 2005 it was operated by Heli Hire Pty Ltd, a company controlled by Mr Jim McBride. One Kevin Houston was the pilot of TGC. He was based in Alice Springs and used TGC in mustering operations within the Northern Territory. Mr Grant routinely performed maintenance work on TGC as a contractor for AMT Helicopters Pty Ltd. On 14 November 2005 Mr Grant performed a 100 hour maintenance inspection on TGC at Alice Springs.

6.The engine of the Hughes 269 B helicopter is connected to the main rotor and the tail rotor by a series of pulleys. There is a lower pulley assembly and an upper pulley assembly. On 15 November 2005, while Mr Houston was piloting TGC near Mount Swan Station he made a precautionary landing after hearing an unusual noise from the pulley assembly area. Mr Houston took the view that there was a problem with the lower pulley bearings. He removed the lower pulley assembly, which was a relatively straightforward task.

7.Mr Houston made arrangements to obtain a lower pulley assembly from an identical helicopter, VH-FBH, which was based in Brisbane. On 16 November 2005 Mr Houston fitted to TGC the replacement lower pulley assembly from FBH. Mr Houston was not authorised to perform the work of removing or replacing the lower pulley assembly. The defective lower pulley assembly taken from TGC was sent to Mr Grant. He overhauled it on 23 November 2005.

8.On 28 November 2005 a complaint was made to the Authority to the effect that Mr Houston had removed and replaced the lower pulley assembly. Mr Bruce Goode, a Senior Airworthiness Inspector attached to the Adelaide Field Office of the Authority, telephoned Mr Grant who he knew ordinarily undertook the maintenance on TGC. Mr Grant told Mr Goode that he was aware of the fact of a defect in the lower pulley assembly bearing on TGC but that he had not been to Mount Swan Station and was not even aware of where Mount Swan Station was.

9.Later that day Mr Goode rang Mr Houston and spoke to him about the matter. Mr Houston told Mr Goode that he had removed the affected part but that Mr Grant had installed the replacement part. Mr Goode rang Mr Grant back and told him what Mr Houston had said. On this occasion, according to Mr Goode, Mr Grant appeared to be confused and said that he needed to check his diary to see whether he had undertaken the work. He came back to the telephone after a few minutes and told Mr Goode that he had travelled to where the helicopter was located and installed the replacement part. Mr Grant accepted that he had not signed any documents regarding this maintenance, and that Mr Houston had not, as he ought to have, entered the defect on the maintenance release of TGC.

10.Later on the same day Mr Goode received by facsimile an extract from what appeared to be the maintenance release for TGC showing an endorsement i.e. the recording of a defect, “lower pulley bearings damage”. That defect was shown as being “cleared” by a signature of Mr Grant dated 16 November 2005. This document was sent following Mr Goode’s conversation with Mr Grant because, it seems, Mr Goode told Mr Grant that a maintenance release ought be completed for the work that had been done. However, in my view, the circumstances under which the document came to be sent are not of any great significance. The fact is, it was sent and it was false because it purported to record that Mr Grant had performed, or supervised the performance of, the work on 16 November 2005. As at 28 November 2005 when Mr Grant completed the entry, he had not performed the work, he had not supervised the performance of the work, and he had no idea whether the work had been properly performed. All he knew at that stage was that the work had been performed by Mr Houston who was not authorised to perform it. It was not to the point that Mr Grant held the view that Mr Houston had the technical competence to perform the work.

11.Mr Grant departed from his original, truthful, response to Mr Goode that he had not been to Mount Swan Station and then told him, untruthfully, that he had, because Mr Grant spoke to Mr Houston and Mr McBride. Mr Houston told Mr Grant of the original untruthful statement that he had made to Mr Goode in claiming that Mr Grant had installed the replacement part. Mr Houston and Mr McBride urged Mr Grant to go along with this deception. Foolishly, Mr Grant agreed.

12.Mr Grant compounded his folly when he signed a statement following an interview he had with Mr Noel Saffery, an investigator employed at the Authority’s office at Hendra in Brisbane. Mr Saffery had been asked to obtain a statement from Mr Grant as part of the overall investigation into the matter co-ordinated by Mr Mark Haslam, an Adelaide-based investigator. Mr Grant’s statement was executed as a statutory declaration on 14 February 2006. In it Mr Grant continued the false story earlier told to Mr Goode that he had travelled to the helicopter in November 2005 with a replacement part and that he had fitted that part.

13.In the meantime Mr Grant had, in fact, travelled to Alice Springs on 5 December 2005. He removed the replacement lower pulley assembly obtained from FBH and fitted the original part which he had earlier overhauled. He says that he regarded the unauthorised work done by Mr Houston as having been performed correctly. At that time he performed other maintenance work on TGC. He made entries in the maintenance log that indicated that he had performed, or supervised the performance of, an exchange of the lower pulley assembly. He dated that entry 16 November 2005. He also recorded the other maintenance work he completed, albeit that he mistakenly showed the date as 4 December instead of 5 December. Nothing turns on that minor error.

14.As was to be expected, the plan to deceive the Authority came unstuck. Enquiries made by Mr Haslam revealed the Mr Grant flew to Alice Springs on 13 November 2005 and 5 December 2005 but did not travel on the date in November 2005 that he had claimed. When confronted with this information on 20 February 2006 Mr Grant eventually confessed to Mr Haslam about his role in the deception.

15.The various individuals who participated in this deception were dealt with criminally. Mr Houston, who might be regarded as the instigator of the episode, pleaded guilty to one count of failing to record a defect in an aircraft[1], two counts of carrying out unauthorised maintenance[2] and one count of hindering a Commonwealth public official[3]. He was convicted and fined a total of $5000. Mr McBride pleaded guilty to three counts of hindering a Commonwealth public official, constituted by the provision by him to investigators of a false document. In respect of two counts he was discharged, without a conviction being recorded. On the other count he was convicted and fined $1000. Mr Bolton pleaded guilty to one count of hindering a Commonwealth public official, in relation to the provision of a false document, and was fined $2500. Mr Grant pleaded guilty to two counts of hindering a Commonwealth public official – one in relation to his conversation with Mr Goode on 28 November 2005 and the other in relation to the later false statement to Mr Saffery. He was fined a total of $5000.

[1] See s 50, Civil Aviation Regulations 1988.

[2] See s 20 AB(2)(a), Civil Aviation Act.

[3] See s 149.1, Criminal Code.

16.These matters do not bear directly upon the issues that I must decide but they form part of the background against which those issues fall to be determined.

17.The Authority also brought disciplinary proceedings against Mr McBride; however, he surrendered his chief pilot’s licence, thereby rendering the proceedings unnecessary. No action was taken against Mr Houston. In the course of submissions at the hearing I raised with Mr Rule, the solicitor for the Authority, the question of whether the apparent discordance between the disciplinary treatment of Mr Grant and Mr Houston was relevant to my decision. On reflection, I am satisfied that it is not. Notions of parity are relevant in sentencing offenders however they are not germane to the question of whether a person is a fit and proper person and, if not, the appropriate response to that finding.

The Legislative Framework

18.The licence held by Mr Grant and issued pursuant to s 31 of the Civil Aviation Regulations 1988 permits him to carry out maintenance on aircraft, within the scope of his endorsement. Without the licence he would have difficulty in pursuing his livelihood.

19.By virtue of s 269(1)(d) of the Civil Aviation Regulations the Authority may vary, suspend or cancel a licence issued under s 31 if satisfied:

“that the holder of the licence … is not a fit and proper person to have the responsibilities and exercise or perform the functions and duties of a holder of such a licence …”

It was this power that the Authority exercised when it determined to cancel Mr Grant’s licence.

A Fit and Proper Person

20.It is, of course, to be remembered that in considering the issue of a fit and proper person it is unwise to attempt to define the matters that may be legitimately enquired into and that each case must depend upon its own

circumstances[4]. As Hill J observed in Stasos v Tax Agents’ Board (NSW)[5], the content of what is necessary to constitute a person a fit and proper person to occupy a particular office may vary having regard to the office or vocation under consideration. In the present context it is possible to say that a fit and proper LAME is one who has an appreciation of the statutory responsibilities and who discharges them[6]. In Re Taylor and Department of Transport[7] the Tribunal was considering s 258 of the Air Navigation Regulations, the statutory precursor to s 269 of the Civil Aviation Regulations and relevantly identical to it.  The Tribunal said[8]:

“In the context of reg 258(1)(d), the enquiry whether the applicant is a ‘fit and proper person’ is directly focused upon the fitness and the propriety of the applicant exercising the ‘responsibilities’ and performing the ‘functions’ and ‘duties’ of the holder of a licence – in this case a commercial pilot licence. It is not simply a question of competence to fly an aircraft which the Secretary must consider for this purpose.

In our view, what the regulation requires is a consideration of the applicant's conduct measured against the responsibilities, functions and duties of the holder of a commercial pilot licence as they emerge from the provisions of the Air Navigation Regulations. Whilst it would be inappropriate to endeavour to catalogue those responsibilities, functions and duties in any exhaustive fashion, it is clear that they include observing the interests of the safety of air navigation – not only the interests of pilots, passengers and the owners of aircraft, but also the interests of the public at large.”

[4]        Hughes and Vale Pty Ltd v New South Wales (No 2) (1955) 93 CLR 127, 157.

[5] (1990) 21 ATR 974, 985.

[6]        Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321, 349.

[7] (1978) 1 ALD 312.

[8]        Note 8 above at p 321.

21.That passage has been applied in many subsequent decisions of the Tribunal[9]. In my view it is appropriate to apply it in the present case. But in doing so I propose to bear in mind that, by virtue of s 9A of the Civil Aviation Act, the Authority, in exercising its powers and performing its functions, and the Tribunal when performing its role, must regard the safety of air navigation as the most important consideration.

[9]        Re Griffiths and Civil Aviation Authority (1994) 34 ALD 554

22.There is, at present, a controversy about the date at which the question of Mr Grant’s fitness and propriety to hold a licence is to be determined. The holding of the majority in Shi v Migration Agents Registration Authority[10] requires me to consider the question as at 9 August 2006, having regard to any evidence of events after that date that touches upon the position as at 9 August 2006. I note however that Mr Young, the solicitor for Mr Grant, accepted, correctly in my view, that there was no difference in the evidence were the date of the hearing or this decision to be the relevant date.

[10] (2007) 158 FCR 525, but see also [2007] HCA Trans 601.

23.The Authority contends that Mr Grant’s conduct demonstrates that:

(1)he lacks the integrity which is essential to the holding of an aircraft maintenance engineer’s licence;

(2) he lacks a proper appreciation of the need to comply with the regulatory scheme;

(3)he lacks a proper appreciation of the duty of a licensee to cooperate with the Authority;

(4) he lacks a proper appreciation of what is encompassed by “maintenance”;

(5) he lacks a proper appreciation of the vital role played by accurate compliance with the system of certifying maintenance and accurate records in the legislative scheme of air safety.

Thus, it contends, he is not a fit and proper person.

24.I do not accept this argument in its entirety. I accept that Mr Grant’s conduct on this occasion fell short of the standards expected of someone in his position. Had I been satisfied that Mr Grant had initiated this scheme I may well have had a different view of his integrity and of his appreciation of the regulatory scheme. But Mr Grant, having initially been truthful, was persuaded, he accepts now, foolishly, to participate in a deception first practised by others to cover up Mr Bolton’s initial breach. Whilst Mr Grant’s deception extended over a period of months it was in truth, all part of the one “tangled web”. I do not doubt that at the outset Mr Grant did not give sufficient thought to the ramifications of what he was prevailed upon to do; that is, to deceive the Authority into thinking that he had undertaken the maintenance that Mr Bolton had, in fact, undertaken. Having done so, he compounded his original breach by telling further lies, and in a more formal setting in the statutory declaration.

25.In the circumstances of this case there was a single course of conduct which extended over a period of time. It is to be contrasted with the conduct of a licensee who engages in repeated and separate acts of deception or irregularity.

26.The Authority points out, correctly in my view, the fundamental importance to aviation safety of the system of maintenance recording and the fundamental importance of only having properly qualified people performing aircraft maintenance. It is not to the point that the present incident did not result in any adverse outcome to the aircraft. The Authority does not have the resources to provide constant monitoring of licensees; it relies to a very great extent upon trust. Where, as here, that trust has been abused, a finding of an absence of fitness and propriety is warranted. The deception of the Authority by Mr Grant is of lesser significance, a fortiori where it has been the subject of criminal proceedings.

27.As against that, it is the case that Mr Grant has, for very many years, enjoyed the privileges of his licence without coming to the adverse attention of the Authority. It is, of course, the case that the system of regulation relies upon the accuracy and honesty of licensees in both dealings with the Authority and in undertaking and recording licensed functions. In this instance Mr Grant fell below the required standard and, in that way, demonstrated that he was not a fit a proper person. But I am persuaded by the circumstances of the case and by my favourable impression of him that this departure from proper standards was an aberration rather than evidence of an underlying or symptomatic lack of appreciation of the proper standards required. And I am reasonably satisfied that Mr Grant’s appreciation of the proper standards expected of licensees will have been reinforced by the present proceedings. The criminal and disciplinary consequences of his conduct in this instance will, I am sure, continue to remind him of the need for licensees to maintain high standards.

28.In the circumstances I am satisfied that Mr Grant’s conduct on this occasion warrants the conclusion that he was not a fit and proper person to hold a licence as an aircraft maintenance engineer. However I do not regard his failings on this occasion as warranting the conclusion that his licence should be cancelled or even suspended for a lengthy period of time. I propose to suspend Mr Grant’s licence for a short period to reflect the fact that his departure from proper standards, whilst significant, falls at the less serious end of the spectrum. I propose a suspension of two months. During this period Mr Grant will be able to undertake aircraft maintenance work but will be required to do so under the supervision of a LAME. I am confident that the inconvenience of such a regime will provide a timely reminder to Mr Grant of the need for complete probity and accuracy in aircraft maintenance records.

29.I add, for the sake of completeness, that I was urged by Mr Young to impose on Mr Grant’s licence a condition requiring him to undertake further exams. I do not regard that as an appropriate response. A person either is, or is not, a fit and proper person. To condition a licence in this way seems to me to be inconsistent and not an appropriate response in the present statutory setting.

30.I would accordingly set aside the decision of 9 August 2006 to cancel the AME licence held by Mr Grant and substitute a decision that the licence be suspended for a period of two months. In order for Mr Grant to arrange his affairs I will specify, pursuant to s 43(5B) of the Administrative Appeals Tribunal Act 1975 (Cth.), that the decision is not to come into operation until midnight on 21 December 2007.

I certify that the 30 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President P E Hack SC

Signed:         ....................Signed...............................................
  Eleanor O’Gorman, Associate

Date of Hearing  1 November 2007
Final submissions received      28 November 2007        
Date of Decision  14 December 2007
Solicitors for the Applicant        Winchester Young & Maddern  

Solicitor for the Respondent     Mr J Rule, Civil Aviation Authority Legal Services Group