Gross and Civil Aviation Safety Authority and Ors
[2005] AATA 1130
•14 November 2005
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2005] AATA 1130
ADMINISTRATIVE APPEALS TRIBUNAL Nº V2005/426
GENERAL ADMINISTRATIVE DIVISION
Re: RICHARD ANTHONY GROSS
Applicant
And: CIVIL AVIATION SAFETY AUTHORITY
Respondent
And: GA AND KF MORRISON PTY LTD
First Party Joined
And: TGS AIR CHARTER SERVICES
PTY LTD
Second Party Joined
DECISION
Tribunal: Mr E. Fice, Member
Date:14 November 2005
Place:Melbourne
Decision:The Tribunal sets aside the notice of cancellation of Chief Pilot Approval and Mr Gross’ Chief Pilot Approval under the AOC held by Mr Balas should be re-instated.
(sgd) E. Fice
Member
ADMINISTRATIVE APPEALS TRIBUNAL Nº V2005/426
GENERAL ADMINISTRATIVE DIVISION
Re: RICHARD ANTHONY GROSS
Applicant
And: CIVIL AVIATION SAFETY AUTHORITY
Respondent
And: GA AND KF MORRISON PTY LTD
First Party Joined
And: TGS AIR CHARTER SERVICES
PTY LTD
Second Party Joined
DIRECTION [2005] AATA 1130
Tribunal: Mr E. Fice, Member
Date:16 November 2005
Place:Melbourne
Whereas the Tribunal is satisfied that there is an error in the text of the decision of the Tribunal dated 14 November 2005 (№ V2005/426), the Tribunal directs the Registrar, pursuant to s 43AA(1) of the Administrative Appeals Tribunal Act 1975, to alter the text of the decision as follows:
on the last page of the reasons for decision, under the clerk's certification, where "Mr J. Langmead" appears substitute "Mr J. Langmead SC and Ms M. Unsworth".
. . . . . . . . . . . . . . . . . . . . . . . .
Member
CIVIL AVIATION – cancellation of chief pilot approval – serious risk to flight safety – responsibilities of chief pilot – acceptable standard – satisfactory level of performance – overloading aircraft - failure to authorise flights and failure to sight flight details – inappropriate level of supervision of pilot – Air Operators Certificate – past safety record - past compliance record
Civil Aviation Regulations 1988
Civil Aviation Safety Regulations 1988
REASONS FOR DECISION
14 November 2005 Mr E. Fice, Member
1. Mr Gross, who is both the chief pilot and the chief flying instructor of the Tooradin Flying School, received a letter from the Civil Aviation Safety Authority (“CASA”) dated 7 March 2005. In the letter he was asked to show cause why his Chief Pilot Approval, in respect of the Air Operators Certificate (“AOC”) held by Mr Glenn Balas, should not be suspended or cancelled. Mr Gross responded by letter dated 1 April 2005. However, by letter dated 17 May 2005, CASA informed Mr Gross that it had cancelled his Chief Pilot Approval on the grounds that not to do so would constitute serious risk to air safety. The cancellation was to become effective from midnight on 20 May 2005. CASA did not revoke his appointment as chief flying instructor of the Tooradin Flying School. Mr Gross seeks review of the decision to cancel his Chief Pilot Approval.
2. By Order made on 26 May 2005, TGS Air Charter Services (“TGS Air”) and GA and KF Morrison Pty Ltd (“Morrison Pty Ltd”) were each made a party to this application.
3. On 26 May 2005, the Tribunal also ordered that the operation of the decision under review in this matter be stayed until final determination.
BACKGROUND
4. Tooradin Flying School is the business name registered to TGS Air, which owns some of the aircraft used at the Flying School and in charter operations. Other aircraft are owned by Morrison Pty Ltd. Mr Gross, who has worked at the Tooradin Flying School since August 2003, holds a Chief Pilot Approval for that organisation. The AOC is held by Mr Balas, who initially applied to be joined as a party, but subsequently withdrew. The AOC authorises aerial work, flying school and charter operations.
5. Mr Gross obtained his Chief Pilot Approval on 26 August 2003. He holds an Air Transport Pilot Licence, Commercial Pilot Licence, Instructor Rating – Grade 1 and Command Instrument Rating (multi and single engine). He has held those qualifications for approximately 12 years and has about 6400 hours aeronautical experience in fixed wing aircraft. Prior to his employment with Tooradin Flying School, he worked for 10 years at Civil Flying School based at Moorabbin Airport as a flying instructor. During that period he was approved by CASA to act as the Assistant Chief Pilot. Mr Gross is a CASA approved testing officer and he holds a delegation from CASA to conduct flying tests for the issue of private pilot licences, night visual flight rules ratings and the general flying progress test. He holds endorsements on a variety of aircraft.
6. Tooradin Flying School has 5 full‑time staff, 4 of whom are flying instructors. It has approximately 100 clients. The Flying School conducts flying instruction, joy flights, charter flights, aerial work, including photographic work, and banner towing. Approximately 90 per cent of the Flying School's business comprises charter operations.
7. In the course of an audit of operations conducted between 17 and 22 November 2004, CASA noted a number of regulatory breaches, some more serious than others. The auditors raised nine requests for corrective action ("RCA") and five audit observations in respect of the charter operations. CASA officers also raised four RCAs and five audit observations in respect of the Flying School operations. The most significant breaches occurred as a result of one of the employee pilots, Mr Nick Bulfin, having exceeded instrument flight rules ("IFR") weight limits for a PA34 aircraft on four occasions between 23 June 2004 and 11 October 2004. The auditors also raised a number of issues dealing with declogs and passenger manifests which had not been completed or contained a number of errors.
8. CASA conducted a follow‑up audit of Mr Balas' AOC on 8 and 9 February 2005. That audit disclosed that Mr Bulfin, as pilot in command of Piper PA31 aircraft, had exceeded the maximum take‑off and/or maximum landing weight; or he had operated the aircraft with insufficient fuel for the flight on 12 occasions between 14 January 2005 and 14 February 2005. It also disclosed that on two occasions Mr Bulfin carried a dog on board the aircraft at a time when Mr Balas' AOC did not have approval for the carriage of live animals. In addition, when CASA examined the charter authorisation forms which, after the November 2004 audit, Mr Gross said he would use as a means to check operational documents, not all charter authorisation forms had been signed and errors were still apparent in the flight planning documents. Mr Bulfin's commercial pilot licence was suspended on 2 March 2005 pending further testing; but it was subsequently re‑instated. CASA also noted that Mr Gross had failed to compile monthly fuel burn rates for all aircraft and to compare those figures with the stated planning figures in the Operations Manual. According to CASA, this constituted a breach of reg 220(2) of the Civil Aviation Regulations 1988 ("CAR").
9. On 13 May 2005, Mr Gross was the pilot in command of a Tiger Moth aircraft engaged on a charter flight when it ditched into mangroves shortly after take‑off, because, according to CASA, Mr Gross made an error.
PARTIES' CONTENTIONS
10. Mr Gross contends that because CASA took no action against his chief flying instructor approval, that supports his claim that there were no serious risks to flying safety arising from the allegations made by CASA.
11. Mr Gross contends that he took all reasonable steps to ensure that the errors made by Mr Bulfin, when calculating IFR weight limits for the PA34 aircraft, would not be repeated. When Mr Bulfin committed similar errors while operating the PA31 aircraft, Mr Gross amended operational documentation to ensure that correct weight and fuel requirements were specified. He also reminded staff about the regulatory requirements, including amendments to the aircraft Flight Manual and the Operations Manual.
12. Mr Gross contends that he has taken appropriate remedial action following the two incidents involving Mr Bulfin and he has introduced new procedures to ensure that those errors are not repeated.
13. CASA contends that Mr Gross has demonstrated an inability or unwillingness to ensure that pilots employed by Mr Balas comply with weight and loading requirements despite that issue having been brought to his attention. CASA also contends that Mr Gross, as chief pilot, has failed to ensure that the AOC holder’s air operations are conducted in compliance with the Civil Aviation Act 1988 ("the Act"), the CAR, the Civil Aviation Safety Regulations 1998 ("the CASR") and Civil Aviation Orders ("CAO"). Accordingly, CASA contends that Mr Gross' performance as a chief pilot is no longer of an acceptable standard and that his Chief Pilot Approval ought to be cancelled.
CONSIDERATIONS
14. The responsibilities of a chief pilot are set out in CAO 82 clause 2. They include the following:
2.1The Chief Pilot for an operator is to have control of all flight crew training and operational matters affecting the safety of the flying operations of the operator.
2.2The responsibilities of a Chief Pilot must, unless CASA otherwise specifies in writing, include the following responsibilities:
(a)ensuring that the operator’s air operations are conducted in compliance with the Act, the Civil Aviation Regulations 1988, the Civil Aviation Regulations 1998 and the Civil Aviation Orders;
(b)…
(c)maintaining a record of licences, ratings, and route qualifications held by each flight crew member, including:
(i)validity; and
(ii)recency; and
(iii)type endorsements and any applicable licence restrictions;
(d)maintaining a system to record flight crew duty and flight times to ensure compliance with duty and flight time limitations, in accordance with Part 8 of the Orders;
(e)ensuring compliance with loading procedures specified for each aircraft type used by the operator and proper compilation of loading documents, including passenger and cargo manifests;
(f)monitoring operational standards, maintaining training records and supervising the training and checking of flight crew of the operator;
(g)conducting proficiency tests in the execution of emergency procedures and issuing certificates of proficiency as required by section 20.11;
(h)…
(i)…
(j) ….
15. A Chief Pilot Approval remains in force, in the absence of a specified period, subject only to the approved person maintaining a satisfactory level of performance (cl 5.5). Irrespective of clause 5.5, an approval may be cancelled or suspended at any time if, in the opinion of CASA, the performance of the chief pilot is no longer of an acceptable standard (cl 6.1).
16. There is no dispute between the parties that Mr Bulfin, between 23 June 2004 and 11 October 2004, flew the PA34 aircraft in excess of its IFR weight limit of 1755kgs. Mr Bulfin, in an affidavit sworn 21 July 2005, confirmed that he had breached the IFR weight limits on the four occasions alleged by CASA.
17. After the overloading had been detected by CASA, Mr Tim Baker, a flying operations inspector employed by CASA, counselled Mr Bulfin in the presence of Mr Gross. Mr Gross also said in evidence that he conducted a private debrief with Mr Bulfin reminding him of the regulatory requirements regarding IFR weight limits. Mr Gross also said that he went through the PA34 aircraft manual with Mr Bulfin explaining to him the need to maintain a minimum climb rate under IFR conditions. Mr Baker told Mr Bulfin that it was up to Mr Gross as to whether or not he should be allowed to continue flight operations. Mr Gross said that he had no reason to believe that Mr Bulfin was not a competent pilot, as he had worked with him for approximately four years at Civil Flying School. In his view, it was appropriate that Mr Bulfin continue to fly. Mr Gross considered Mr Bulfin to be a good pilot and he had been properly counselled regarding the regulations dealing with maximum weight limits for IFR flight. Mr Gross was satisfied that Mr Bulfin had made an honest mistake and therefore he was not concerned that Mr Bulfin should continue flying operations. Mr Baker did not suggest that Mr Bulfin should be taken off flying duties.
18. In the course of conducting the November 2004 audit, CASA officers also detected a variety of other breaches which, together with Mr Bulfin's breaches, were the subject of a RCA. A number of the problems stemmed from the fact that the aircraft used by TGS Air in its charter operations were also used by TGS Aviation, another AOC holder, which also operated from Tooradin. The pilots on some occasions appeared to be confused regarding the AOC holder for whom the charter flight was being conducted. Both AOC holders operated from the same building and the documentation used was not uniform. In response to the RCA, Mr Gross noted that all staff were briefed on the correct use of paperwork and that Mr Gross intended to standardise any conflicting documentation between the two AOC holders. He also noted that the Operations Manual would be amended to reflect the changes. This response was regarded as satisfactory by Mr Baker.
19. In response to the RCA issued by CASA regarding the IFR overweight flights conducted by Mr Bulfin, Mr Gross said that he and a CASA officer had debriefed Mr Bulfin on the requirements regarding the one per cent climb gradient for aircraft on charter operations operating under the IFR. Mr Gross also noted that all maximum weights had been inserted in the PA34 aircraft checklist and that those weights were displayed in Schedule 6 of the aircraft Flight Manual. All pilots endorsed on that aircraft type had been briefed. CASA noted that Mr Gross' response to that issue was satisfactory.
20. CASA also noted that a number of company pilots had failed to complete details on passenger manifest forms or consignment notes. Further, the Tooradin Flying School Operations Manual required the chief pilot to compile monthly fuel burn rates and to compare those with standard planning figures in the Operations Manual. CASA noted that the current trip records used by Tooradin Flying School did not make provision for the recording of fuel remaining or consumption rates. Mr Gross, in response to RCAs issued regarding these matters, stated that the paperwork would be amended and that he would review all documentation on completion of charter operations to ensure full compliance with the Operations Manual. Mr Gross' responses to those RCAs were regarded as satisfactory by CASA.
21. As far as the RCAs raised in respect of the Flying School operations are concerned, CASA concluded that Mr Gross had been distracted from some of the obligations regarding the completion of monthly logbook checks and progress records by the uncertainty and confusion over charter operations. CASA seemed to be satisfied that Mr Gross' proposed actions would resolve the problem which appeared to stem from the fact that the two AOC holders operated the same aircraft in charter operations. No further action was taken by CASA.
22. CASA conducted a follow‑up audit of Tooradin Flying School charter operations on 8 and 9 February 2005. Mr G. Hogan, a flying operations inspector employed by CASA, noted that on 12 occasions between 14 January 2005 and 4 February 2005 Mr Bulfin, when flying a PA31 aircraft, operated the aircraft either in excess of its maximum take‑off weight and/or its maximum landing weight, or with insufficient fuel for the flight. Given the state of the declogs prepared by Mr Bulfin, it was difficult for CASA to determine exactly the errors which had been made. However, it was Mr Hogan's view that, because of the many incorrect additions, the figures appear to have been "massaged" to ensure that the PA31 aircraft did not appear to exceed weight limits. By "massaging" either the amount of fuel on board or the fuel burn for a particular leg in order to achieve the correct take‑off and landing weights, there was insufficient fuel onboard for the intended flight. According to Mr Bulfin, those errors were not deliberate. He said that he worked too quickly through his calculations using a computer rather than doing the calculations manually. He stated that he has not made a similar error since this had been pointed out to him.
23. CASA's major concern, as far as Mr Gross is concerned, is that Mr Gross appeared not to have properly supervised Mr Bulfin since the overloading problems occurred in November 2004. In particular, CASA noted that, although Mr Gross had introduced a Charter Authorisation Form on a trial basis, which Mr Gross was required to sign as having authorised each charter flight, on at least eight occasions, he did not do so. Mr Gross said that the Charter Authorisation Form was not one which was required to be completed in order to comply with the Operations Manual. In any event, as CASA correctly submitted, a mere signature on that form without an examination of the accompanying documentation for any particular charter flight would not bring to the attention of the chief pilot the errors which were manifest on Mr Bulfin's documentation. Also, despite the fact that Mr Gross had not signed some of the Charter Authorisation Forms, he said in evidence that he was always aware of all charter flights.
24. The effects of Mr Bulfin's errors were that the aircraft was, on the flights in question, between 2 and 49 kg above its maximum landing weight, between 4 and 11kg above its maximum take‑off weight; and it was under‑fuelled by between 26 and 37 litres. Mr Bulfin's commercial pilot licence was suspended on 2 March 2005, pending further testing. Mr Bulfin successfully completed that further testing, including a flight test, and his licence was re‑instated. Mr Gross conducted flight tests of Mr Bulfin on 8 and 16 March 2005. Mr Bulfin was also tested on the correct compilation of operational documents. Mr Gross said in evidence that he now more closely monitors the flight documentation on a day‑to‑day basis. Mr Gross has also introduced a new document entitled "Charter Flight Completion Note". That document requires the pilot in command of a charter flight to set out the fuel onboard at departure, the fuel onboard at arrival and the fuel consumption rate. This has enabled Mr Gross to better assess the average fuel consumption rate for each aircraft. In fact, when planning flights in the PA31 aircraft, pilots were using a fuel consumption rate of 190 litres per hour as a "block" fuel guide. However, after monitoring the actual fuel consumption of that aircraft, Mr Gross reduced the block fuel figure to 165 litres per hour and that amendment was made in the Operations Manual. The amendment was sent to CASA and, because he heard nothing from CASA, Mr Gross said that he assumed CASA approved the amendment. Mr Hogan indicated that, if the Operations Manual amendment did not incorporate a return sheet, CASA's silence would indeed indicate approval. Mr Hogan also said in evidence that he was not aware of any further errors made by pilots operating under the Tooradin Flying School AOC of the type that Mr Bulfin made.
25. On two occasions, Mr Bulfin also carried a dog on board when the Tooradin Flying School AOC did not permit the carriage of live animals. Since that time, Tooradin Flying School has obtained approval to carry live animals.
26. CASA also criticised Mr Gross in respect of an accident in a Tiger Moth on 13 May 2005. Mr Gross was the pilot in command engaged on a charter flight when, according to him, on take‑off, the engine failed to develop full power and he was forced to ditch the aircraft in mangroves at the end of the runway. Although no formal investigation has been completed into the accident, CASA nevertheless alleges that Mr Gross, because he had very little flight time on the aircraft in the preceding 90 days, had the slats on the aircraft closed, thereby precluding the stall warning device from operating. CASA claimed that the aircraft was stalled. Mr Gross flatly denied that and maintained it failed to develop full power. Mr Gross directed me to an Australian Transport Safety Bureau (ATSB) aviation safety database entry which stated that the aircraft's engine did not produce full power and the aircraft failed to climb. However, as CASA pointed out, that was simply the statement provided by Mr Gross to the ATSB. It was not a finding or a view adopted by that body. CASA was also critical of the fact that Mr Gross had not taken steps to identify the problem with the engine. Apparently, the aircraft engine has not been dismantled to enable a thorough investigation. In any event, in the absence of any additional evidence, it is certainly not possible for me to draw any conclusions from that incident whatsoever.
27. CASA also claimed that Mr Gross had breached CAO 20.11 because he did not hold an emergency procedures certificate in relation to the Tiger Moth. In response, Mr Gross said that when he was tested in November 2004 for emergency procedures in all of the aircraft operated by the Tooradin Flying School, he was not specifically tested on each aircraft and was merely asked which aircraft should be entered on the certificate. He said that he forgot about the Tiger Moth. In any event, Mr Gross said that because the only emergency action that can be taken in the Tiger Moth while it is on the ground is to exit the aircraft, the omission of the Tiger Moth from the emergency procedures certificate was not significant. I agree.
28. Since the February 2005 audit, there have been no further overloading and under‑fuelling problems such as those caused by Mr Bulfin. In fact, Mr Bulfin is no longer employed by Tooradin Flying School. At the time of that audit, CASA also noted that the other pilots appeared to be fully complying with the Operations Manual, the regulations and CAOs. Mr Gross said that he now monitors all documents in respect of charter flights to ensure that the calculations are accurate. He said that he signs the foot of the charter flight completion note; that there have been numerous charter flights since February 2005; and that the errors noted at that time have not been repeated.
CONCLUSIONS
29. It appears to me that Mr Gross ran into some difficulty as chief pilot of Tooradin Flying School because of confusion resulting from two AOC holders at the same airfield operating the same aircraft. The actions of Mr Bulfin seem to indicate that he considered himself to be accountable to the chief pilot of the TGS Aviation AOC and not to Mr Gross. In my view, this issue was satisfactorily dealt with after the February 2005 audit. There has been no recurrence of such problems.
30. Mr Gross has also worked on updating the Operations Manual and has made a number of significant amendments which will improve the operations under the Tooradin Flying School AOC. There is evidence that he has addressed the problems which arose; although, it must be said, he did not do so immediately after the November 2004 audit. It was only after the February 2005 audit that he appeared to take positive steps to ensure that the problems caused by Mr Bulfin would not be repeated
31. It is also apparent that Mr Gross is held in high regard by CASA for his ability as a pilot. For example, after a private pilot, Mr B. Holloway, crashed an aircraft at Tooradin Airport on its approach to land, Mr Hogan asked Mr Gross if he would do a flight review of the pilot and provide CASA with a full report of the outcome. He has done several flights with the pilot concerned and he has provided an interim verbal report to Mr Hogan.
32. Although I accept that, for a brief period, Mr Gross' performance as a chief pilot may have dropped below a satisfactory level, it appears to me that he has taken significant steps in order to remedy that problem; and it cannot now be said that Mr Gross’s performance as chief pilot is below an acceptable standard. On the evidence, I am reasonably confident that Mr Gross will maintain a satisfactory level of performance in the future. I do not consider that his performance now constitutes a serious risk to air safety.
33. Therefore, CASA's notice of cancellation of Chief Pilot Approval dated 17 May 2005 should be set aside and Mr Gross' Chief Pilot Approval under the AOC held by Mr Balas should be re‑instated.
I certify that the thirty‑three [33] preceding paragraphs are a true copy of the reasons for the decision of:
Mr E. Fice, Member
(sgd) Catherine Thomas
Clerk
Dates of hearing: 12—16 September 2005
Date of decision: 14 November 2005
Counsel for applicant: Mr J. Langmead
Solicitors for the applicant: Wollerman ShacklockSolicitor for the respondent: Mr A. Anastasi
Office of Legal Counsel, Civil Aviation Safety Authority
Solicitors for the first party: Wollerman Shacklock
Solicitors for the second party: Wollerman Shacklock
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