Lewis and Civil Aviation Safety Authority and Ors
[2005] AATA 1129
•14 November 2005
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2005] AATA 1129
ADMINISTRATIVE APPEALS TRIBUNAL Nº V2005/425
GENERAL ADMINISTRATIVE DIVISION
Re: MARTIN JAMES LEWIS
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:1. The Tribunal affirms the decision under review.
2.The stay order, which was granted on 20 May 2005, is revoked and shall cease to have effect from the date of this decision even if Mr Lewis avails himself of the appeal provisions set out under s 43 of the Administrative Appeals Tribunal Act 1975.
(sgd) E. Fice
Member
ADMINISTRATIVE APPEALS TRIBUNAL Nº V2005/425
GENERAL ADMINISTRATIVE DIVISION
Re: MARTIN JAMES LEWIS
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 1129
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 (№ V2005/425), 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 - responsibilities of chief pilot – serious risk to flight safety – acceptable standard – satisfactory level of performance – over water flight – Bass Strait crossings – flight planning - unauthorised maintenance – turbine engine washing – maintenance release not completed – Air Operators Certificate – past safety record - past compliance record
Air Services Act 1995
Civil Aviation Act 1988
Civil Aviation Regulations 1988
Civil Aviation Safety Regulations 1998
Civil Aviation Orders
Briginshaw v Briginshaw (1938) 60 CLR 336
REASONS FOR DECISION
14 November 2005 Mr E. Fice, Member
1. Mr Lewis, who holds a Chief Pilot Approval for TGS Aviation Services (TGS Aviation), received a Notice of Proposed Action to Suspend or Cancel Approval of Appointment as Chief Pilot from the Civil Aviation Safety Authority (CASA) dated 3 March 2005. The notice asked him to show cause why his appointment as chief pilot in respect of the Air Operators Certificate (AOC), held by TGS Aviation, should not be suspended or cancelled. Mr Lewis responded to the notice. After considering Mr Lewis’ response, CASA cancelled Mr Lewis’ Chief Pilot Approval and advised him of the cancellation by a letter dated 17 May 2005. He seeks a review of that decision.
2. By Order made on 26 May 2005, TGS Aviation, 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 of the application. CASA was granted leave to apply to vary or revoke the stay order on 24 hours notice.
4. On 27 July 2005, CASA requested that the stay order be varied or revoked and the parties agreed that the substantive hearing should be brought on without delay.
BACKGROUND
5. Mr Lewis has worked in the aviation industry for about 19 years. He has approximately 3000 hours aeronautical experience in fixed wing aircraft, of which 320 hours is on turboprop aircraft and about 830 hours on multi-engine aircraft. He has been flying commercially since 1994. Mr Lewis holds an Air Transport Pilot Licence, Commercial Pilot Licence, Private Pilot Licence and a Flight Radio Telephone Operator Licence. He has held a multi-engine command instrument rating for 10 years and has numerous endorsements on a variety of aircraft types.
6. Mr Lewis was granted the Chief Pilot Approval on 24 September 2004. He was then appointed to the position of Chief Pilot of TGS Aviation, which trades as TGS Air Charter. The aircraft used in that operation are owned by TGS Air and Morrison Pty Ltd. TGS Aviation’s AOC was granted on 1 October 2004.
7. Between 18 and 22 November 2004, CASA officers audited the operations conducted under TGS Aviation’s AOC. CASA noted that TGS Aviation was conducting fare-paying passenger charter operations in single engine aircraft over water between Tooradin and Flinders Island and Tooradin and King Island. CASA officers found that TGS Aviation pilots were planning flights direct to King Island from Tooradin or via Wonthaggi to Flinders Island. According to CASA, planning to fly those routes was a direct breach of instructions issued in a document entitled En Route Supplement Australia (ERSA), which sets out mandatory routes for Bass Strait crossings in single engine aircraft. CASA also pointed out that reg 258(1) of the Civil Aviation Regulations 1988 (CAR) prohibits flight over water at a distance from land greater than the distance from which the aircraft could reach land if the engine…[in a single engine aircraft] were inoperative. CASA also noted that in a document entitled Aeronautical Information Publication – En Route (AIP-ENR), aircraft normally prohibited by CAR 258 from flying over water at a distance from land greater than the distance from which the aircraft could reach land in the event of an engine failure, were nevertheless permitted to fly over water provided that the distance from land areas suitable for an emergency landing did not exceed 25 nautical miles.
8. CASA brought this deficiency to the attention of Mr Lewis by means of a Request for Corrective Action (RCA). Mr Lewis responded to the RCA and identified the cause of the breach as "unfamiliarity with CAR 258 and Jeppesen ATC Pg AU‑1105, subsection 6" (the Jeppesen ATC being a private publication in which AIP-ENR and AIP-ERSA are published). Mr Lewis also sent a facsimile to TGS Aviation pilots drawing their attention to the requirements for single engine operations over Bass Strait and he attached copies of the relevant documents setting out the requirements for such crossings. Mr Lewis also included a "Notice Awareness Record" to be signed by the pilots and he altered the standard domestic flight plan to reflect the correct routes.
9. On 11 February 2005, Mr Lewis was the pilot in command of a Cessna 208 Caravan aircraft (the Caravan) on a flight from West Sale to Flinders Island. The Caravan is a single engine, turboprop aircraft. Mr Timothy Baker, a flying operations inspector employed by CASA, conducted a ramp check of the aircraft at West Sale, prior to its departure.
10. At the time the ramp check commenced, baggage had already been loaded onto the aircraft and Mr Lewis was completing his weight calculations. After completing those calculations, Mr Lewis indicated that he needed to remove 26kg of baggage, but then he became confused and thought it should be 26lbs. The problem was that the weight calculations on Mr Lewis’ trip sheet were in kilograms, although the passenger manifest indicated all weight in pounds as the scales at the terminal were calibrated in pounds only. After some considerable confusion, and the removal of baggage from the aircraft, CASA determined that the aircraft was overloaded by 90kg. Mr Lewis was therefore forced to remove all baggage from the aircraft and weigh the passengers and baggage again. Passengers were asked to remove items which were not essential and the aircraft was also defuelled to meet the requisite maximum take off weight.
11. After the aircraft had departed West Sale, Mr Baker monitored the East Sale departure frequency and he heard the East Sale air traffic controller clear the Caravan to track direct to Flinders Island at 8500 feet. Mr Baker did not attempt to contact the aircraft to inform Mr Lewis that, by tracking direct from West Sale to Flinders Island, he would be in contravention of the mandatory route prescribed in ERSA and that he may also be outside the 25 nautical mile maximum distance from a suitable landing area prescribed by paragraph 76 of AIP-ENR.
12. After the flight on 11 February 2005 between West Sale and Flinders Island, and after a stay of the operation of the reviewable decision was granted by the Tribunal, CASA had reason to inspect the Caravan aircraft on 20 June 2005 at Moorabbin Airport. The aircraft had been flown from Tooradin to Moorabbin by Mr Lewis with a TGS Aviation line pilot, Mr Gordon Brown. The purpose of the flight was to have maintenance completed on the aircraft. An inspection of the maintenance release for the aircraft revealed that two items of maintenance, which were due, had not been certified as having been completed. No special permit had been obtained from CASA to fly the aircraft in that condition. It was also noted that a tyre on the aircraft was worn, and, although it may have been within acceptable limits, Mr Lewis was not able to say how that should be determined.
13. On 27 June 2005, two CASA officers conducted another scheduled audit of TGS Aviation operations. They noted the following discrepancies:
(a)compressor and compressor turbine washes were not being conducted in accordance with Airworthiness Directive AD/PT6A/28;
(b)Mr Lewis was not authorised to perform compressor turbine washes;
(c)pilot files were not up to date;
(d)two engineering papers, completed by pilots seeking endorsement on particular aircraft, did not appear to have been assessed;
(e)Mr Lewis did not have or hold a current Civil Aviation Order (CAO) 20.11 certificate for the GE‑8 Skyvan aircraft;
(f)TGS Aviation pilots, including Mr Lewis, had not been trained to conduct and sign off daily inspections on aircraft listed on the AO, as required by the Operations Manual;
(g)on 18 January 2005, Mr Lewis exceeded his duty time as set out in CAO 48.1;
(h)on 23 May 2005, Mr Brown exceeded the permissible flight time provided for in CAO 48.1;
(i)TGS Aviation line pilots were not completing operational forms set out in the Operations Manual; and
(j)on 12 October 2004 and 13 October 2004, Mr Lewis failed to take the required rest period preceding a tour of duty as prescribed in CAO 48.1.
PARTIES' CONTENTIONS
14. CASA contends that Mr Lewis has demonstrated an inability to comply with the basic requirements of aviation legislation. According to CASA, his failure to ensure that compressor and compressor turbine washes on the engine of the Caravan were being performed correctly could have resulted in that engine failing due to sulphidation. This aircraft had previously experienced such a failure in operations over water. CASA also contends that Mr Lewis chose to ignore the requirements concerning compressor washes. Overall, CASA contends that Mr Lewis has a poor attitude to aviation safety and that his performance as Chief Pilot of TGS Aviation is below an acceptable standard.
15. Mr Lewis contends that he is a qualified and experienced pilot, having worked in the aviation industry for 19 years. He has never been prosecuted and no administrative action has previously been taken against any of his licences or ratings. He has never had an accident as pilot in command.
16. Mr Lewis also contends that he has introduced a number of safety measures for the purpose of improving the safety of operations of TGS Aviation. He contends that he is a safe pilot and is aware of the regulatory requirements including his responsibilities under CAO 82.0.
17. Mr Lewis submits that the Tribunal should bear in mind the effect of an adverse decision on his professional and economic interests and the effect on the TGS group and its employees.
18. Regarding the flight from West Sale to Flinders Island, Mr Lewis contends he was never more than 25 nautical miles from land suitable for an emergency landing. Even if CASA’s allegation can be proved, he would have only been beyond the 25 nautical mile limit for less than one minute in the course of that flight.
19. As for initially overloading the aircraft at West Sale, Mr Lewis contends that the error was rectified immediately despite the stress and difficulties of being surrounded by 12 passengers and 2 flying operations inspectors giving instructions. He contends that this error has never been repeated.
20. Mr Lewis contends that all compressor and compressor turbine washes he conducted complied with the relevant regulations and were adequate to protect the engine of the Caravan aircraft. He claims he was authorised to conduct those washes.
21. As for flying the Caravan aircraft at a time when maintenance items were outstanding on the maintenance release, Mr Lewis contends that although there may have been a technical breach of regulations, the aircraft was serviceable and flight safety was not compromised.
CONSIDERATIONS
22. On 24 September 2004, Mr G. Hogan, a flying operations inspector employed by CASA, conducted an oral examination and a flight check of Mr Lewis, who had sought approval for appointment as chief pilot of TGS Aviation pursuant to CAO 82.0 Appendix 1. Following a satisfactory oral examination of Mr Lewis' knowledge of legislative requirements, flight planning, loading and performance, systems management assessment and an assessment of Mr Lewis' overall suitability to carry out the responsibilities of a chief pilot as set out in paragraph 2 of CAO 82.0, Mr Hogan subjected Mr Lewis to a flight test in the Caravan aircraft. Other than minor deficiencies in his Instrument Flight Rules (IFR) knowledge, which were discussed with him and corrected, Mr Lewis' performance in every other respect was satisfactory and he flew the Caravan aircraft to a good standard. Mr Hogan assessed Mr Lewis as being capable of carrying out the responsibilities of a chief pilot.
23. CASA's functions are set out in s 9 of the Civil Aviation Act 1988 ("the CA Act"). It is one of CASA's functions to conduct the safety regulation of civil air operations in Australian territory by a variety of means including:
(a)developing and promulgating appropriate, clear and concise aviation standards;
(b)developing effective enforcement strategies to secure compliance with aviation standards; and
(c)conducting comprehensive aviation industry surveillance, including assessment of safety‑related decisions taken by industry management at all levels for the impact on aviation safety.
Section 9A of the CA Act also provides that CASA must regard the safety of air navigation as the most important consideration when exercising its powers and performing its functions.
24. I have set out CASA's functions and some of the ways in which it can perform those functions because the applicant strongly criticised the way in which CASA performed its enforcement role in the course of the ramp check at West Sale where the CASA inspectors monitored Mr Lewis’ radio calls on departure, knew he may have been about to breach regulations, but took no steps to prevent a breach from occurring.
25. It is true to say that CASA's functions include encouraging a greater acceptance by the aviation industry of its obligation to maintain high standards of aviation safety. It is required to do so through safety education and training programmes; accurate and timely aviation safety advice, and by fostering an awareness in industry management and within the community generally, of the importance of safety in aviation and compliance with relevant legislation. CASA is also required to promote full and effective consultation and communication with all interested parties on aviation safety issues (CA Act s 9(2)). But an important means of conducting the safety regulation of civil air operations is by the development of effective enforcement strategies to secure compliance with aviation standards.
26. I do not perceive any conflict between CASA's consultative or educative functions and its enforcement obligations. Ideally, consultation and education would precede enforcement, but that is not a requirement. All persons holding certificates, licences, registrations or permits under the CA Act or CAR can reasonably be expected to be familiar with and to comply with the relevant legislation. Should there be any doubt about the operation of any particular legislative enactment, I would expect a pilot, AOC holder or maintenance engineer to consult with CASA's officers prior to taking any action which might breach the relevant legislation.
27. I reject the applicant’s suggestion that the CASA officers who conducted the ramp check at West Sale attempted to “trap” Mr Lewis when they failed to warn him that the route he planned to fly to Flinders Island might cause him to breach the regulations. For the reasons set out in paragraphs 41 and 42 below, I accept Mr Baker’s evidence that when conducting the ramp check, he did not notice the planned route was direct to Flinders Island from West Sale.
November 2004 Audit
28. Between 17 and 22 November 2004, Mr Hogan and Mr Baker, conducted an audit of the air operations at Tooradin airfield. After examining the records of TGS Aviation, Mr Baker noted that TGS Aviation pilots, including Mr Lewis, were planning flights either direct to King Island from Tooradin or via Wonthaggi to Flinders Island. Under the Air Services Regulations made pursuant to the Air Services Act 1995, the Aeronautical Information Service is required to publish, in a document entitled Aeronautical Information Publication (AIP), aeronautical information that is essential to safe air navigation and which is of lasting relevance. AIP‑ERSA sets out specific tracking requirements for single engine aircraft being used for passenger carrying charter operations. The mandatory routes prescribed by the AIP‑ERSA (at para 1.1.1b) require that aircraft engaged in fare-paying passenger charter operations track via Cliffy Island, Hogan island and Deal Island, then via Cape Portland or Waterhouse Island to Flinders Island. For flights to King Island, the mandatory track is via Cape Otway, Bold Head and Hunter Island. These mandatory routes are also published in a private publication referred to as Jeppesen ATC and are set out in paragraph 6.2 which is entitled Bass Strait Crossings. According to Mr Baker, when this error was raised with Mr Lewis at the audit, he said he thought that the requirement applied only to piston‑engine aircraft and not turbine‑powered aircraft. No such distinction is set out in AIP-ERSA or elsewhere.
29. On 23 November 2004 Mr Baker issued a RCA to TGS Aviation. The RCA stated that CAR 258 does not permit flights to be conducted which are outside the gliding distance of a suitable landing area in the event of an engine failure unless otherwise directed by CASA. The RCA also stated that AIP‑ENR s 1.1‑99 paragraph 76.2 allowed flights to be conducted outside gliding distance of a suitable landing area if those flights were within 25 nautical miles of such a landing area. Mr Baker directed attention to the ERSA section dealing with mandatory routes to be flown on Bass Strait crossings by single engine aircraft conducting charter operations.
30. The AIP‑ENR paragraph 76.2, which is reproduced at paragraph 9 in the Jeppesen ATC, provides:
9. FLIGHTS OVER WATER
9.1 Aircraft engaged in private, aerial work, or charter operations, and which are normally prohibited by CAR 258 from over‑water flights because of their inability to reach land in the event of engine failure, may fly over water subject to compliance with the conditions in this section. These conditions are additional to the requirements for flight over land.
9.2 In the case of passenger‑carrying charter operations, the distance from land areas suitable for an emergency landing must not exceed 25 nautical miles…
31. In response to the RCA, Mr Lewis stated that he took the remedial action of contacting all line pilots by telephone to let them know about the mandatory routes and that he had studied the relevant regulations. He stated that the root cause of the identified deficiency was his unfamiliarity with CAR 258 and the mandatory requirements set out in paragraph 6 of the Jeppesen ATC document. As for the corrective action taken, Mr Lewis noted that he had read and understood CAR 258 and paragraph 6 of the Jeppesen ATC document; that line pilots had been notified and their familiarity with those documents confirmed by having them sign an attached Notice of Awareness form; and that the standard flight plan on his planning software had been amended to reflect the correct route to Flinders Island from Tooradin. The Notice of Awareness form was signed by the two line pilots at that time employed by TGS Aviation, Gordon Brown and Nicholas Bulfin. CASA noted that Mr Lewis' response was satisfactory and that no further action would be taken.
32. On 18 November 2004, Mr Hogan conducted a ramp check inspection of a charter operation being conducted by Mr Lewis on a return charter from Flinders Island. Mr Hogan observed that Mr Lewis did not carry the current weather reports and relevant NOTAMs with him on that flight, as is required by s A16 of the Company Operations Manual (COM). CAR 215(9) provides that every member of the operations personnel of an operator must comply with all instructions contained in the COM in so far as they relate to his or her duties or activities. An RCA was issued and in response to that RCA Mr Lewis said that he had re‑familiarised himself with the relevant part of the COM. He said that he failed to comply with the regulation because he was unfamiliar with COM s A16.1. He notified other line pilots and confirmed their awareness by getting them to sign a Notice of Awareness form. CASA noted that Mr Lewis' response was "only just satisfactory". Mr Hogan also recommended that further surveillance of this operator was required.
West Sale to Flinders Island Flight
33. On 11 February 2005, Mr Baker and Mr Hogan flew to West Sale Aerodrome to check on Mr Bulfin, as CASA had, in the course of the November 2004 audit, detected overloading and/or under‑fuelling of an aircraft by him. They noted that he was rostered to fly to West Sale on that day and they wished to check his documentation. However, Mr Bulfin's flight was apparently cancelled; but Mr Lewis had flown the Caravan aircraft to West Sale to embark passengers for a flight to Flinders Island. Mr Baker and Mr Hogan therefore decided to conduct a ramp check of that operation. Mr Baker led the check with Mr Hogan assisting him. At the commencement of the check, Mr Baker noted that the aircraft was to carry 12 fare paying passengers from West Sale to Flinders Island. The passengers’ baggage had already been loaded onto the aircraft and Mr Lewis was re‑checking his weight calculations. When he had completed checking the baggage weight he told Mr Baker that he needed to remove 26kg of baggage because the aircraft would otherwise be overweight. He then appeared to become confused and announced that this should be 26lbs. Some baggage was removed from the aircraft.
34. Mr Lewis then gave Mr Baker the declog which he had completed and Mr Baker noted that all the weight calculations on the trip sheet were in kilograms. The passenger manifest weight calculations were in pounds because the scales, which were used to weigh passengers and their baggage, were only calibrated in pounds. Mr Lewis had apparently weighed the passengers together with their bags. Therefore, he was unable to tell Mr Baker the exact weight of the baggage onboard, although the passenger manifest showed a figure of 2706lbs for passengers and 293lbs for baggage. The 293lbs allocated to baggage appeared to be extra baggage, although Mr Lewis was not able to clearly explain to Mr Baker the nature of the extra baggage.
35. Mr Hogan examined the aircraft's fuel gauges and he told Mr Lewis and Mr Baker that the aircraft had been fuelled with 720lbs of fuel. Mr Lewis did not disagree with this figure. Using the calculations on the passenger manifest, Mr Baker determined that the total payload for the aircraft was 2999lbs or 1363kg. Mr Lewis had removed 26kg of baggage, thereby leaving a total payload of 1337kg. The trip record for the aircraft disclosed that the aircraft’s basic empty weight together with the pilot was 2327kg. However, the flight manual for the Caravan aircraft states that its basic empty weight is 2327kg, not including the pilot's weight. It was obvious to Mr Baker that Mr Lewis had failed to add his own weight to the trip record which, he said, was 90kg. The result was that the aircraft had been overloaded by at least 90kg. Mr Baker brought this to Mr Lewis' attention. He told Mr Lewis that he could only carry a payload of 1247kg given that he had 329kg of fuel onboard the aircraft. According to Mr Baker, Mr Lewis became confused and could not work out what his payload was and what weight he needed to remove from the aircraft in order to ensure that he complied with the maximum take‑off weight limitations for the aircraft.
36. Mr Baker then suggested to Mr Lewis that he ought to weigh the passengers and the baggage again. All the baggage was removed from the aircraft and the passengers were weighed without their baggage. The total passenger weight was 1037kg. This permitted the aircraft to carry 210kg of baggage. The baggage was then weighed and when 210kg was reached there was a substantial amount of baggage remaining. The passengers were then asked to remove items which were not essential and this caused a further delay in the departure of the aircraft of about 1hr. Mr Baker then suggested to Mr Lewis that he could de‑fuel the aircraft to the minimum required for that flight, being some 633lbs or 288kg. Mr Lewis suggested that he could further reduce fuel weight by removing the 15 per cent variable reserve which the aircraft was required to carry. Mr Baker reminded him of the COM requirement to carry the 15 per cent variable reserve when conducting charter operations. Mr Baker subsequently admitted that the COM actually referred to 10 per cent and that he was mistaken in making that statement. However, at the time he was concerned that Mr Lewis was prepared to remove some of the variable reserve component of fuel which he was legally required to carry. After de‑fuelling, Mr Hogan noted that the aircraft's fuel was 620lbs or 281kg. Mr Baker then calculated the take‑off weight of the aircraft to be 3961kg, some 9kg beneath the maximum take‑off weight. However, Mr Baker noted that Mr Lewis had allowed 20kg for taxiing the aircraft prior to take‑off whereas the Pilot Operating Handbook makes an allowance of 16kg. Nevertheless, the aircraft was now within its permissible maximum take‑off weight.
37. Mr Baker also asked Mr Lewis about balance calculations and Mr Lewis said that he knew the aircraft was in balance if the bulk of the weight was loaded over the centre section. In the aircraft folder containing the documentation for that flight, the only weight and balance sheet available was for the aircraft in its freight configuration and not for carrying passengers. Nevertheless, Mr Lewis maintained that, based on his experience, the aircraft was in balance. This entire episode caused a substantial delay in the departure of the flight and caused Mr Lewis to become quite frustrated and angry with the CASA officers.
38. In evidence Mr Lewis agreed that, but for the intervention of Mr Baker and Mr Hogan, he would have taken‑off at a weight which exceeded the maximum take‑off weight of the Caravan aircraft by at least 90kg. When asked about the effect of this excess weight on the performance of the aircraft, Mr Lewis said that it would have had little, if any, effect that he was aware of. He thought that it would have increased the take‑off distance marginally and, in the event of an engine failure after take‑off, it may have slightly reduced the glide range of the aircraft. He did not consider either of those factors to be a major safety issue. Mr Lewis did agree that had he taken off overweight at West Sale, it was most likely that he would have been in excess of his landing weight on arrival at Flinders Island, by possibly up to 30kg. When asked about the effect on the aircraft of landing 30kg overweight, Mr Lewis said that he was uncertain as to the effect on the airframe, but that he did not think that it was significant. Mr Baker gave evidence that an increase in take‑off weight would affect the performance of the aircraft, increasing the take‑off distance, climb rate, and general performance of the aircraft throughout the flight including causing higher fuel consumption. The problem, according to Mr Baker, is that there is no data available from the manufacturer for calculating the performance of an aircraft in excess of its maximum take‑off weight. Mr Baker was asked if he had ever given approval for an aircraft to operate above its maximum take‑off weight and he answered "No". He was not aware of any such approval ever having been granted. When asked if he was aware of long range ferry flights, particularly from the United States of America to Australia, Mr Baker said that he was. He was also aware that such aircraft were frequently fitted with additional fuel tanks which were approved under CAR 35. Mr Baker was also asked whether he was aware that there was a rule of thumb allowing an aircraft to operate up to 10 per cent over its maximum take‑off weight. He said that he was not aware of any such rule. Mr Baker agreed that if Mr Lewis had been authorised or had dispensation to take‑off at up to 90kg in excess of the maximum take‑off weight, that would not have created an unacceptable risk for the flight.
39. Mr P. Wilson, a senior airworthiness inspector employed by CASA, who has had some experience with an aircraft seeking approval to operate above the maximum take‑off weight, said that he did not know what affect an over-weight landing would have on an aircraft; but he thought that it might affect the life of certain components, such as the wing spar. He said that he did not have the confidence to give a firm opinion.
40. CASA did not raise a RCA in respect of the loading problems that Mr Lewis had at West Sale, although those problems were noted in a surveillance results report.
Non‑compliance with mandatory route across Bass Strait
41. After the weight issues had been resolved with Mr Lewis at West Sale, Mr Baker and Mr Hogan returned to their aircraft. They monitored the East Sale departure frequency and then the East Sale approach frequency on the aircraft's radio. They heard the East Sale air traffic controller clear the Caravan aircraft to fly from West Sale direct to Flinders Island at 8500ft. After the Caravan aircraft became airborne, Mr Baker and Mr Hogan monitored the departure call on the East Sale approach frequency and they heard Mr Lewis call that he was turning left after take‑off to track 144 degrees on climb to 8500ft. It was common ground between the parties that a track of 144 degrees from West Sale would cause the aircraft to fly directly to Flinders Island, and not via the mandatory route for single engine charter aircraft flying across Bass Strait. The applicant suggested to Mr Baker and to Mr Hogan that they were aware that Mr Lewis had flight planned to track direct from West Sale to Flinders Island, but they had said nothing in the course of the ramp check in order to catch Mr Lewis in the act of failing to comply with the AIP‑ERSA requirement. Mr Baker and Mr Hogan strenuously denied that suggestion. Mr Baker said that he did examine the documents which were in the cockpit of the Caravan aircraft; and that he saw the flight plan. He said that it was folded over and he only examined the fuel calculation on the lower half of that document. Mr Hogan said that he did not examine any of the documentation for the flight and he had not seen the flight plan at the time of the ramp check. It was also put to Mr Hogan that, at the time the radio call was made by Mr Lewis to the East Sale air traffic controller, it was open to either him or Mr Baker to contact the aircraft or the air traffic controller, to warn Mr Lewis that the route that he was about to fly would cause him to be in breach of the AIP‑ERSA regarding mandatory routes across Bass Strait. Mr Hogan said that, although something could have been done, neither of the flying operations inspectors had the power to prevent Mr Lewis from flying that route if he chose to do so. He also said that neither he nor Mr Baker were alert to the mandatory route issue at that time, but rather Mr Baker had indicated that he was concerned that the aircraft track would take it beyond 25 nautical miles of an area which was suitable for a forced landing. It was only after the flight that Mr Baker and Mr Hogan realised that Mr Lewis had, in any event, failed to comply with the mandatory route when crossing Bass Strait. I have no reason to doubt either Mr Baker or Mr Hogan on their evidence regarding this point.
42. The RCA, issued by Mr Baker on 16 February 2005, tends to support what Mr Baker said about the incident. After citing details of the deficiency, being that Mr Lewis asked for and accepted an airways clearance allowing him to track from West Sale direct to Flinders Island, the RCA states that CAR 258 does not allow a single engine aircraft to fly over water beyond the distance where it could make land in the event of the engine becoming inoperative. There is no mention in that document about the mandatory flight routes. Nevertheless, in Mr Lewis' response to the RCA, he stated that he had once again read the Jeppesen document dealing with mandatory routes for Bass Strait crossings; that he had put the standard route in the flight plan software for single engine aircraft crossings of Bass Strait; and that a flight plan via the mandatory routes had been programmed into the global positioning system. He also said that the cause of that incident was that he was distracted by the delay in leaving West Sale. However, that statement cannot possibly be correct given that Mr Lewis' flight plan, prepared prior to the ramp check at West Sale, indicated a route direct from West Sale to Flinders Island, tracking 144 degrees at an altitude of 7500ft. Mr Lewis' evidence was that he simply made a mistake and forgot about the mandatory route requirement. Mr Lewis admitted that after take‑off from West Sale, he made a left turn and set track from about 1 to 2 nautical miles abeam West Sale airfield, heading directly to Flinders Island. He said that at that time he only had some 3 months experience of flying to Flinders Island and that this was the first time he had tracked from West Sale to Flinders Island. Before joining TGS Aviation, Mr Lewis said he had been operating in North Queensland and he had become accustomed to tracking direct to his destination. He nevertheless maintained that he was, at all times, within 25 nautical miles of a suitable landing area and therefore not in breach of CAR 258 by reason of the exception set out in paragraph 76 of the AIP‑ENR. Despite that, when CASA served Mr Lewis with an infringement notice dated 25 February 2005, he admitted the breach and paid the prescribed penalty. However, despite that admission, Mr Lewis sought at the hearing of this matter to persuade me that he had not, in any event, breached the regulation.
43. On a World Aeronautical Chart (WAC) of the Melbourne area, Mr Lewis drew a track between a point approximately 2 nautical miles to the east of West Sale aerodrome and Flinders Island. On that track, he had marked a point at which the aircraft was 25 nautical miles from the coast (Ninety Mile Beach) and also 25 nautical miles from an island in the Hogan group called East Islet. At all other times, according to Mr Lewis, his track was within 25 nautical miles of an area suitable for a forced landing.
44. Mr Baker obtained, from Air Services Australia, a radar plot of Mr Lewis' flight on 11 February 2005 from West Sale to Flinders Island; and he was able to obtain latitude and longitude information which provided the aircraft's position on a minute‑by‑minute basis. He then plotted the track on a Bass Strait Oil Fields Marine Chart. The radar plot of the aircraft's track also provided the altitude of the aircraft at various points as indicated by its transponder. It appears that Mr Lewis flew initially at an altitude of approximately 3500ft and then, a short time after crossing the coast, he climbed to reach a maximum altitude of 8000ft. By using the maximum glide chart for the aircraft with the propeller feathered; flaps up and zero wind, Mr Baker determined that, for a distance of some 41½ nautical miles along track, Mr Lewis could not glide to reach any land whatsoever. Furthermore, by Mr Baker’s calculations, there is a very short distance along track, which would have taken the aircraft approximately 1½ minutes to fly, when the aircraft was further than 25 nautical miles from land. Mr Baker would not accept that East Islet provided a suitable forced landing area for the Caravan aircraft. Photographs of East Islet were produced by Mr Lewis and Mr Baker. The photographs disclose a very rough rocky outcrop, slightly west of Hogan Island. According to Mr Lewis, East Islet measures 625 metres by 300 metres and it has two peaks, one 29metres high and the other 49 metres high. Nevertheless, Mr Lewis marked out on his photograph a suitable forced landing area. Mr Langmead, counsel representing Mr Lewis, pointed out that Mr Baker's plotting of the track of the aircraft may have been subjected to a number of errors, including inherent errors in the radar and errors due to the particular projection of the marine map, which was unknown.
45. It is difficult to say, with precision, the distance that the aircraft was from a suitable landing area at any point during its flight. In any event, despite the AIP‑ENR permitting flight as far as 25 nautical miles from a suitable landing area, because no altitude restrictions apply, an aircraft may well comply with the AIP‑ENR but be unable to reach a suitable landing area in the event of an engine failure because it had insufficient height when the engine became inoperative. That of course raises the question why the AIP‑ENR refers to 25 nautical miles from a suitable landing area when the aircraft may never be able to reach a landing area at all. This was in fact the case with Mr Lewis' flight, as Mr Baker calculated that the Caravan aircraft, at about 8000ft in nil wind conditions, would glide 17 nautical miles before impacting the ground or water. For a significant time during that flight, the aircraft would have been forced to ditch in Bass Strait in the event of an engine failure. In my opinion, the wording of the AIP‑ENR makes no sense as it stands. It is therefore academic whether East Islet provides a suitable forced landing area when in fact the aircraft was, for at least 41½ nautical miles along its track, not able to glide to any land.
46. Flying the mandatory route for Bass Strait crossings, via Cliffy Island, Hogan Island and Deal Island, at the altitudes that Mr Lewis had planned, would no doubt have provided him with a better chance of reaching a suitable landing area in the event of an engine failure. However, as was pointed out by Mr Langmead, even the mandatory routes for crossing Bass Strait have no applicable altitude restrictions other than for the purpose of maintaining radio contact. Accordingly, one could fly the mandatory route, at an altitude where the aircraft could not glide to a safe landing area in the event of an engine failure, while nevertheless complying with the AIP‑ERSA. As I understood the thrust of Mr Langmead's argument about the Bass Strait crossing, despite the fact that Mr Lewis had not flown the mandatory route, the risk attached to the route which he in fact flew was not unacceptable. However, it was conceded that Mr Lewis failed to comply with AIP‑ERSA by not flying the mandatory route. Mr Baker, in cross‑examination, agreed that the route flown by Mr Lewis on 11 February 2005 did not pose an unacceptable risk.
47. Mr Lewis also put into evidence documents which indicated that CASA has been re‑examining the problem of single engine aircraft flights over water by charter operators. In particular, a discussion paper produced in 1998 indicated that CASA was examining the possibility of freeing up the restrictions placed on single engine aircraft operations over water, where the aircraft was powered by a turbine engine. It seems to be accepted by all parties that a turbine engine is substantially more reliable than a piston engine. It was suggested that statistically, turbine engines were in the order of 10 times more reliable than piston engines. For that reason, the proposal was to move from a distance-based limitation to a time-based limitation; which would substantially increase the distance from land which a single engine turbine powered aircraft could operate lawfully. Another discussion paper was produced by CASA's Operational and Flight Crew Licensing Standards Branch in March 2002. Again, a similar proposal seems to have been put in that discussion paper regarding single engine turbine powered aircraft. However, it appears that those proposals have not progressed beyond the discussion stage. Mr Lewis produced those documents to illustrate the fact that his flight from West Sale to Flinders Island, which may have exceeded the 25 nautical mile limit for a period of approximately 90 seconds, did not significantly alter the risk to aviation safety.
48. Although I accept that, by flying from West Sale directly to Flinders Island, the risk to air safety was not significantly increased, there was a clear breach of the mandatory provisions in the AIP-ERSA and possibly the AIP-ENR. More significantly however, it is clear that Mr Lewis considered neither provision when planning this flight. For that reason, it is my view that Mr Lewis also breached CAR 239(1)(d), which requires a pilot in command, before beginning a flight, to make a careful study of all available information appropriate to the intended operation and the air traffic control rules and procedure appertaining to the particular flight.
Ramp check 22 June 2005
49. On 22 June 2005 Mr Wilson was at Moorabbin airfield where he had a meeting with Mr Baker regarding an upcoming scheduled audit of TGS Aviation. He was concerned to know whether regular engine compressor washes were being performed on the Caravan aircraft. He attended the premises of the holder of a maintenance approval, The Aviation Centre, to review maintenance data regarding compressor washing of the aircraft. As he was about to leave The Aviation Centre, he observed the Caravan aircraft taxi up to the maintenance facility. Mr Lewis was the pilot in command. Upon returning to his office, Mr Wilson asked Mr Baker to accompany him to do a ramp check of the aircraft as there was no certainty that it would be available at the time when the scheduled audit was to take place during the week commencing 27 June 2005. He introduced himself to Mr Lewis and Mr Brown, the other pilot, and asked if he could take advantage of the aircraft’s presence on the tarmac in order to carry out an inspection. Mr Lewis was fully co‑operative and agreed.
50. On inspecting the aircraft, Mr Wilson observed that:
(a)the Nose Oleo was leaking;
(b)the nose wheel steering limit line on the upper torque link was in very poor condition;
(c)both shoulder belts on the inertial belt assembly for the left hand pilot’s seat were frayed along their edges;
(d)there were signs of an oil leak which the Chief Pilot [Mr Lewis] confirmed was a minor weep from the dipstick and was being taken care of by maintenance personnel;
(e)the right main tyre was noticeably worn; and
(f)the propeller blades needed dressing.
51. Upon examining the current maintenance release for the aircraft, Mr Wilson noted that there were two items of maintenance due on 21 June 2005 which had not been certified as having been completed. One was an Airworthiness Directive (AD/INST/9) and the other indicated that the pilot inertial reel belt required replacing. The aircraft had been specifically flown to Moorabbin Airport on 22 June 2005 to have those items of maintenance completed. However, reg 39.003(1) of the Civil Aviation Safety Regulations 1998 (CASR) provides that a person must not operate an Australian aircraft covered by an Airworthiness Directive while any requirement of an Airworthiness Directive has not been complied with. Furthermore, in flying the aircraft on 22 June 2005, Mr Lewis breached CAR 133(1)(c) and (d), which provide:
133(1) Subject to regulation 317 and regulation 21.197 of CASR, the pilot in command of an Australian aircraft must not commence a flight if each of the following requirements is not satisfied:
(a)the aircraft has a nationality mark and a registration mark painted on, or affixed to, it in accordance with Part 45 of CASR;
(c)the flight is not in contravention of any condition that:
(i)is set out or referred to in the maintenance release or in any other document approved for use as an alternative to the maintenance release for the purposes of regulation 49, or subregulation 43 (10); or
(ii)is applicable to the maintenance release by virtue of a direction given under regulation 44;
(d)any maintenance that is required to be carried out before the commencement of the flight, or that will be required to be carried out before the expiration of the flight, to comply with any requirement or condition imposed under these regulations with respect to the aircraft has been certified, in accordance with regulation 42ZE or 42ZN, to have been completed;
(e)…
No such certification was made on the maintenance release prior to the aircraft being flown on that day. If that were not sufficient, the COM (at paragraph 3 s A10.1) provides that:
…a pilot in command must ensure that the aircraft is not flown if any airworthiness directives or maintenance due item recorded in Part 1 of the maintenance release, is due or will fall due during the flight.
52. According to Mr Wilson, when he explained to Mr Lewis that in order to fly the aircraft in accordance with the regulations on that day he needed to apply to CASA for a special flight permit, Mr Lewis appeared vague and apparently said that he was not aware that he could not fly the aircraft with an Airworthiness Directive outstanding in order to have that maintenance completed. Section A10.8 of the COM provides instructions about how to apply to CASA for a special flight permit. Mr Wilson, understandably, was extremely surprised by Mr Lewis' response.
53. In order to comply with Airworthiness Directive AD/INST/9 Amdt 6, which came into effect in June 2003, an operator must select one of the following options:
1.Pressure altimeters - Test the altimeter in accordance with the requirements of USA Federal Aviation Regulations Part 43 Appendix E. or
2.a. Check the integrity of all aircraft instruments and instrument systems in accordance with the requirements previously specified in AD/INST/9 Amdt 5. and
b.Verify the integrity of the aircraft pitot and static systems in accordance with the requirements previously specified in AD/INST/9 Amdt 5.
If option 1 is selected, then the interval between testing the altimeters must not exceed 24 months. However, if option 2 is selected, then the intervals between checking must not exceed 3 years.
54. The aircraft maintenance certification log discloses that AD/INST/9 Amdt 5 was carried out on 21 June 2002. At that time, the maintenance on that aircraft was being conducted by Flight Safety (Australia) Pty Ltd (Flight Safety (Australia). In maintenance release number 23813, issued by Flight Safety Australia on 27 February 2004, under the maintenance required section is an entry "AD/INST9A5 due 21/6/05". This is in accordance with AD/INST/9 Amdt 5, before it was superseded. The integrity of all aircraft instruments and instruments systems were required to be checked for aircraft approved for IFR operations and those checks had to be conducted at intervals not exceeding three years. However, when AD/INST/9 Amdt 6 was introduced in June 2003, operators had the option of either simply checking the pressure altimeters every two years or conducting an integrity check of all aircraft instruments and instruments systems, including the aircraft pitot static systems, at intervals not exceeding three years.
55. Mr C. Heazlewood, a licensed aircraft maintenance engineer (LAME), is the sole director of South Gippsland Aviation Pty Ltd (South Gippsland Aviation) which holds a Certificate of Approval from CASA to conduct aircraft maintenance. It appears that South Gippsland Aviation took over the maintenance of the Caravan aircraft from Flight Safety Australia. Mr Heazlewood said in evidence that prior to 21 June 2005 he had discussed with Mr Lewis the effect of AD/INST/9 Amdt 6. Mr Heazlewood said that an altimeter check had already been carried out on the aircraft and certified on 1 February 2005. According to Mr Heazlewood, this satisfied the requirements of AD/INST/9. However, Mr Heazlewood decided that, at the time of issuing the Maintenance Release, it would be far more conscientious to continue to have all instruments checked at three‑year intervals rather than adopting what CASA considered was an adequate level safety, i.e. only checking the altimeters. The Airworthiness Directive was entered on the Maintenance Release as a reminder to have the work done. He produced a letter dated 5 August 2005 addressed to Mr Lewis to that effect. However, there is no certification for the completion of that maintenance either in the Maintenance Release or in the aircraft log book. Mr Heazlewood pointed to an Airworthiness Directive special inspection work sheet which indicated that AD/RAD 43 and 47 were completed satisfactorily on 1 February 2005. Mr Heazlewood also claimed to have made the entry calling up the instrument Airworthiness Directive on 21 June 2005 in the Maintenance Release, in order to change the checking regime under the Airworthiness Directive from merely checking altimeters every two years to checking all of the aircraft instruments every three years. Mr Heazlewood gave no satisfactory explanation as to why the due date of 21 June 2005 was entered against that Airworthiness Directive. My opinion is that Mr Heazlewood merely continued to make the same entry as the previous maintenance organisation had made in respect of that Airworthiness Directive which indicated the due date of 21 June 2005. Other than a worksheet entry suggesting that AD/RAD 43 and 47 had been completed satisfactorily in February 2005, there was no evidence that the Airworthiness Directive had been certified as completed in February 2005. A competent LAME would have ensured that completion of that maintenance was certified by a person authorised to do so.
56. Mr Lewis said he relied on his conversation with Mr Heazlewood during which he was told that it was lawful to fly the aircraft without the instrument Airworthiness Directive having been certified as completed. Given that there was some uncertainty about compliance with the instrument Airworthiness Directive, Mr Lewis was asked why he did not query the matter with CASA. He said that he was afraid of seeking guidance from CASA as he thought he had to be very careful, although he did mention that Mr Hogan had been helpful at times. Mr Lewis could not recall Mr Heazlewood checking the altimeters in February 2005. In any event, Mr Lewis admitted that it was wrong to fly the aircraft without the Airworthiness Directive having been certified as completed and said that he would not do that again. I have difficulty in accepting Mr Heazlewood's explanation for the entry in the Maintenance Release. I am also unable to accept Mr Lewis’ explanation that he relied on Mr Heazlewood when he was told that the aircraft could lawfully be flown despite the fact that there were items on the Maintenance Release which had not been certified as having been completed. This is something which would be known by the most junior of pilots let alone a chief pilot. In flying the aircraft without the maintenance required to comply with the Airworthiness Directive having been certified as completed, Mr Lewis was clearly in breach of CASR 39.003(1) and CAR 133(1)(c) and (d). He was also in breach of CAR 215(9).
57. Mr Lewis said that on 22 June 2005, he inspected the pilot's inertial reel belt in the course of conducting a pre‑flight inspection. He found the seat belt to be serviceable. He said that he was told by Mr Heazlewood that, as long as he was of the opinion that the seat belt was serviceable, it was lawful to fly the aircraft despite the fact that the entry in the Maintenance Release required maintenance of the seat belt on or before 21 June 2005. This is plainly incorrect and I have serious doubts about whether Mr Lewis believed that such a flight could be performed lawfully.
58. Mr Heazlewood said in evidence that he made the entry in the Maintenance Release on or about 19 May 2005, at a time when the inertial reel seat belt was serviceable although it was “a little bit worn” and it was nearing the end of its life. He said that if it was unserviceable at that time, he would have replaced it immediately. However, that does not explain why Mr Heazlewood made the entry that he did in the Maintenance Release. Mr Langmead suggested that it indicated that the seat belt did not suddenly become unserviceable on 21 June 2005, and therefore the aircraft was not unsafe to fly in that condition despite the fact that, technically, there was a breach of regulations. However, the entry made by Mr Heazlewood regarding the inertial reel seat belt makes no sense. If Mr Heazlewood was of the view that the inertial reel seat belt was not unserviceable at the time he made the entry, then why did he state it had to be replaced by 21 June 2005? There was no evidence before me to suggest that he could determine or even estimate the date upon which it would become unserviceable. I believe that the better view is that Mr Heazlewood determined that the seat belt was unserviceable when he made the entry but, to avoid grounding the aircraft at that time, he did not make an endorsement in Part 2 of the Maintenance Release as he probably ought to have done. That allowed the aircraft to continue flying, at least until 21 June 2005 when the aircraft had to go in for maintenance because of AD/INST/9 Amdt 6.
59. Mr Wilson's evidence was that when he examined the inertial reel seat belt, part of the belt had become frayed and it was also discoloured and hard, indicating exposure to ultra‑violet light. He explained that continuous exposure to ultra‑violet light severely weakens a belt and that was of more concern to him than the fraying on the edges. It was put to Mr Wilson in cross‑examination that he did not mention, at paragraph 10(c) of his witness statement, that he had detected discolouration and hardening of the belt. Mr Wilson said that he did not go into detail because the item was being replaced. He was absolutely certain that the seat belt was unserviceable prior to its removal from the aircraft.
60. Given that I do not accept Mr Heazlewood's explanation for the entry in the Maintenance Release regarding the inertial reel seat belt, I am inclined to accept what Mr Wilson says about the belt upon his inspection. That seems to be the more logical explanation for having an entry in the Maintenance Release, although, as I have said above, it probably should have been an endorsement on Part 2.
61. On the ramp check, Mr Wilson also detected that one of the tyres on the aircraft had significant wear and he was uncertain that it was serviceable. Both pilots, when questioned by Mr Wilson, were also uncertain as to whether it was serviceable. Mr Wilson asked a LAME from The Aviation Centre to assess the extent of tyre wear and that person reported that the tyre was serviceable. Although Mr Wilson accepts that this is correct, he was concerned that Mr Lewis was unable to tell him whether the tyre was serviceable. According to Mr Wilson, he was concerned with Mr Lewis' ability to train pilots to correctly perform a daily inspection. Mr Wilson explained to Mr Lewis that, if he had concerns as to the serviceability of an aircraft and the pilots were not sufficiently trained to satisfy him that the assessment of the tyre was accurate, he might have been forced to possibly ground the aircraft while the pilots found out whether the aircraft was serviceable. Apparently, Mr Lewis responded "I would have continued to operate the aircraft until the canvas was showing on the tyre as I'm operating on dirt strips".
62. This caused Mr Wilson sufficient concern to obtain, from the Internet, details regarding acceptable tyre wear on Goodyear Flight Custom III tyres, the tyre type in question. Mr Lewis also relied on that information and pointed out that tyres can remain in service with visible cord in the tread area only if the top fabric layer is not worn through or exposed for more than one‑eighth of the circumference of the tyre, and the exposure is not more than one inch wide. Mr Lewis relied on these limitations to justify the response he gave to Mr Wilson. However, those limitations only apply to enable the aircraft to be returned to a maintenance base for replacement. In fact, it is not intended to indicate a normal level of wear after which the tyre should be replaced. As far as tread wear is concerned, the Goodyear information provides that tyres should be removed when tread has been worn to the base of any groove at any spot.
63. While this not a major safety issue given that the tyre was serviceable, it did cause Mr Wilson some concern that the chief pilot under an AOC, and a person who conducts daily inspections of aircraft, was not aware of tyre wear limits on an aircraft which he regularly operated. I share Mr Wilson's concerns.
June 2005 Audit – Compressor and Compressor Turbine Washes
64. On 27 June 2005, Mr Wilson and Mr Hogan conducted a scheduled audit of TGS Aviation. Mr Wilson was particularly concerned with an Airworthiness Directive which was relevant to the PT6A turbine engine which powered the Caravan operated by TGS Aviation. That Airworthiness Directive (AD/PT6A/28) requires compressor washes and compressor turbine washes to be conducted in accordance with the engine manufacturer's recommendation. It appears that the Airworthiness Directive was issued as the result of an engine failure in the same aircraft on 21 August 1998 although this was at a time when the aircraft was under the control of a different operator. The engine failed during flight and it was discovered that a compressor turbine blade had failed as a result of sulphidation which was caused by operating in a salt laden environment. Sulphidation is the reaction of sulphur containing compounds with metallic components that have been exposed to a hot gaseous environment. According to an ATSB accident report into this incident, corrosive sulphates are formed during the combustion process from sulphur in the fuel and sodium and potassium salts present in the fuel and air, in particular the air in a marine environment. If accumulations of sulphur containing salts are not removed from the surface of the turbine blades and vanes, the protective oxide coating would become detached and the underlying alloy rapidly corroded.
65. AD/PT6A/28 applies to all PT6A series engines installed in single engine aircraft which carry passengers for hire or reward and which conduct those operations in a salt laden environment. In the Airworthiness Directive, a salt laden environment is described in the following way:
… For the purpose of this directive, operating in a salt laden environment is defined as a take-off and landing within 10 nautical miles of the sea or, the flight route is within 10 nautical miles or over the sea and at an altitude of less than 10,000 feet.
66. The Airworthiness Directive makes it mandatory for the operator to carry out engine compressor and compressor turbine water washing in accordance with the procedure detailed in the applicable Pratt & Whitney Canada Maintenance Manual. Visual inspections are also required to be carried out either by boroscope or by a hot section inspection. An operator will comply with the Airworthiness Directive provided that the engine is washed in accordance with the "Wash Schedule Recommendations" table, detailed in the applicable Pratt & Whitney Canada Maintenance Manual. The Directive also states that it has been issued for the purpose of requiring an inspection of the compressor turbine blades for evidence of sulphidation and water washing of the compressor and compressor turbine. The Directive requirement reflects concern for the airworthiness of single PT6A engine aircraft operated in a salt laden environment, where water washing is not carried out at a frequency recommended by the manufacturer.
67. The Pratt & Whitney Canada Maintenance Manual generally describes the method used for internal washing of the PT6A engine. It states that a compressor wash is done by injecting the applicable cleaning fluid into the engine intake, using either an installed compressor wash ring or a hand held wash wand. A compressor turbine wash is done by injecting the applicable cleaning fluid through a wash tube installed into the gas generator’s igniter boss. The wash medium, in the case of a compressor desalination wash and a compressor turbine desalination wash is drinking quality water. The manual also states that when desalination washes are done in conjunction with each other, it is essential that the compressor desalination wash is done first.
68. The wash schedule recommendations are set out in Table 701 of the Pratt & Whitney Canada Maintenance Manual. As far as desalination compressor and compressor turbine washes are concerned, two schedules are strongly recommended by the manufacturer. In the first case, a daily wash for the compressor and compressor turbine is strongly recommended after the last flight of a day where the aircraft is operating in a continuously salt laden environment. Where the environment is occasionally salt laden, a weekly wash of the compressor and compressor turbine is strongly recommended and the manufacturer recommends that the interval between the washes be adjusted to suit the engine condition. A performance recovery wash, which applies to the compressor only, is strongly recommended in all operating environments and the frequency suggested is on an as required basis. The manufacturer recommends that, although these washes, which involve motoring the engine in the course of the wash using water or cleaning solution, are required less frequently and their frequency should suit the engine operating condition.
69. A major issue regarding this maintenance was whether the Caravan aircraft operated by TGS Aviation encountered a continuously salt laden environment, or whether the environment could be classified as occasionally salt laden. CASA relied upon the definition set out in AD/PT6A/28 in respect of a salt laden environment. Tooradin is located on the northern edge of Western Port Bay. There are extensive mud flats and mangroves which extend to approximately 100 meters from the runway threshold. Nevertheless, Mr Lewis said that, despite Tooradin's location in relation to Western Port Bay, it is some 22 nautical miles from Phillip Island where, in his opinion, the ocean begins. According to Mr Lewis, the area around Tooradin should be classified as occasionally salt laden because where the mud flats are situated there is no spray from the ocean. He agreed that at high tide, the water line would be approximately 100 meters from the end of the runway. He would not agree that the prevailing winds were south-westerly. He said that at Tooradin, it was not common to see an accumulation of sea salt scum on the aircraft. He agreed that the aircraft would be landing over water at Flinders Island. The standard flight plan from Tooradin to Flinders Island indicated an altitude less than 10,000ft. Mr Lewis said that approximately 65 per cent of the TGS Aviation business is the carriage of live seafood from Flinders Island and the aircraft would remain overnight at Flinders Island once in every 5 weeks or so. He agreed that it was windy at Flinders Island and that there was sea-spray in the air which resulted in salt deposits being left on the aircraft. He maintained that salt deposits on aircraft were not a consideration for operations out of Tooradin.
70. Mr Heazlewood’s opinion was that the environment at Tooradin was not salt laden. He preferred to describe it as occasionally salt laden. He referred to it as a tidal mud flat, with the ocean being some 20 nautical miles from Tooradin.
71. The Airworthiness Directive refers to take‑off and landing within 10 nautical miles of the sea. Sea is defined in The Shorter Oxford English Dictionary as …part of the general body of salt water, having certain land‑limits or washing a particular coast, and having a proper name, as Red, Black, Adriatic. The sea can also refer to different parts or tracks of the ocean. There is no question at all that Western Port Bay is part of the body of water described as Bass Strait and occasionally as the Tasman Sea, which is a general body of salt water. The fact that the area around Tooradin is tidal is neither here nor there. The fact is that Tooradin is located within 10 nautical miles of the sea. It is not reasonable to suggest otherwise. For that reason, and also because the aircraft frequently conducts flights over the sea at an altitude of less than 10,000ft, I am satisfied that the aircraft operates in an environment which can be described as "salt laden". Therefore, in order to comply with the Airworthiness Directive, both the compressor and compressor turbine must be washed daily after the last flight of the day.
72. According to Mr Lewis, Mr James Dakin, a LAME employed by The Aviation Centre at Moorabbin Airport, completed compressor and compressor turbine washes approximately every three months. He said that the compressor turbine was washed every day except when the aircraft remained at Flinders Island overnight where there are no facilities to conduct such a wash. According to Mr Heazlewood, it was the compressor turbine wash which was critical; and he had, in any event, adopted a conservative approach requiring that the compressor turbine be washed daily when the aircraft was flown over the ocean and after landing near the ocean. Mr Heazlewood said that his discussions with Mr Crowe, a representative of Pratt & Whitney, indicated that compressor washes were less critical. Mr Heazlewood also said that when the aircraft remained overnight at Flinders Island and the compressor turbine wash was done the following day upon return to Tooradin, that complied with the requirement under Table 701. However, that is plainly incorrect, as the daily wash must be done after the last flight of the day. Therefore, although Mr Heazlewood said that compressor turbine washes were being conducted daily and therefore in compliance with the Airworthiness Directive, that is not the case. Compressor washes were being conducted infrequently and compressor turbine washes were only being conducted at Tooradin, even though the aircraft may have remained on the ground overnight at Flinders Island. Therefore, in my opinion, TGS Aviation has not been meeting the requirements of AD/PT6A/28.
73. Mr Heazlewood was not responsible for conducting daily compressor and compressor turbine washes. Mr Lewis said that he had received training from Mr Dakin and that he conducted both the compressor and compressor turbine washes. He also said that he was sometimes assisted by other pilots. When asked by Mr Wilson to explain how the washes were done, Mr Lewis told Mr Wilson that he had a laminated card which detailed the process for washing the engine. According to Mr Wilson, Mr Lewis told him that he used the same equipment for both the compressor and compressor turbine wash. When Mr Wilson explained to him that the same hose fitting could not be used for a compressor wash as the adaptor would not fit onto the compressor spray ring, Mr Lewis admitted that he was only doing the compressor turbine wash. He said that he had been told by the Pratt & Whitney technical representative (Mr Crowe) that this was the only wash which was required. Mr Lewis also admitted that the engine was not washed when the aircraft remained overnight at Flinders Island, and, according to Mr Wilson, he said that it was unrealistic to expect strict compliance as there was no suitable equipment at Flinders Island. Mr Dakin confirmed to Mr Wilson that he had taught Mr Lewis to perform engine washes and that he had "signed him off" as competent to perform the task.
74. However, after Mr Lewis completed each compressor turbine wash, he made no record of having done so. This is despite the fact that, according to Mr Wilson, the washing of the compressor turbine is maintenance in accordance with the definition set out in CAR 2. Maintenance is broadly defined as doing any work on the aircraft that may affect the safety of the aircraft or cause the aircraft to become a danger to person or property. That being the case, in order to comply with CAR 42ZE, Mr Lewis was required to ensure that completion of maintenance was certified in accordance with that section. No such certifications were made by pilots performing engine washes, although certification for power recovery washes were made by the LAME who carried out that maintenance.
75. Also, according to Mr Wilson, because Mr Lewis is not the holder of an aircraft maintenance engineer licence, he is required, pursuant to CAR 42ZC(6), to hold an approval from CASA to perform the compressor and compressor turbine washes or to hold a maintenance authority. It is common ground that Mr Lewis did not have approval from CASA to conduct that maintenance and he did not hold a maintenance authority. In fact, Mr Lewis only requested CAR 42ZC(6) approval on or about 30 June 2005. Nevertheless, Mr Lewis maintained that such approval was not necessary because the compressor turbine washes, which he had been conducting, fell within a class of maintenance which can be conducted by a pilot under CAR 42ZC(4). Schedule 8 of the CAR sets out the maintenance which can be conducted by a pilot under CAR 42ZC(4) and Mr Lewis relied upon clauses 12 and 18. Clause 12 provides that a pilot may replace, clean, or set the gaps of, spark plugs. Clause 18 provides that a pilot may apply a preservative or protective material, but only if no disassembly of the primary structure or operating system of the aircraft is involved.
76. In order to conduct a compressor turbine wash the igniter must be removed and the coupling on the water hose attached to the igniter boss to permit water to be injected into the compressor turbine area. According to Mr Lewis, an igniter is basically a spark plug fitted to a gas turbine engine. It does the same work as a spark plug and looks very similar. It can be removed and replaced in a similar way to a spark plug. Also, Mr Lewis said that by applying water to the compressor turbine, he was simply applying a preservative or preventive material in accordance with clause 18 of Schedule 8 of the CAR. CASA disagreed strongly with this interpretation of the nature of maintenance which may be carried out by a pilot under clauses 12 and 18 of Schedule 8.
77. Mr Wilson said that not all PT6A engines are the same. Some engines have a P3 compressor bleed air line attached which needed to be disconnected and blanked off. This did not apply to the Caravan aircraft, but, according to Mr Wilson, it demonstrated that compressor washing was not a task similar to the replacement, cleaning or setting gaps of a spark plug. Also, the laminated card which Mr Lewis was working from to conduct washes apparently did not contain complete information, including the torque required for re‑installing the igniter plug. According to Mr Wilson, re‑torquing the igniter plug is critical because the plug is screwed into a lightweight sheet metal liner which may be damaged if excessive force is used to tighten it. Mr Lewis claimed that he did have a torque wrench available, but there was no evidence that he was aware of the torque pressures required.
78. In my opinion, the task of washing the compressor turbine is certainly maintenance under the CAR. However, it is not an item of maintenance contemplated by Schedule 8 of the CAR to be carried out by pilots. Although in conducting a compressor turbine wash, the igniter plug must be removed, the maintenance which is performed is in fact a turbine wash. It involves the application of drinking quality water, in a sufficient quantity and in a particular way, to ensure that salt deposits are removed from the compressor turbine. It is not a simple task of replacing a spark plug as is contemplated by clause 12 of Schedule 8. Nor is the application of water to clean the compressor turbine an application of a preservative or protective material as Mr Lewis contended. Although the maintenance items set out in Schedule 8 are fairly broadly described, there is nothing in that Schedule which even suggests that a pilot may conduct a compressor or compressor turbine wash. For that reason, I am of the view that, because Mr Lewis did not hold a maintenance authority, nor was he authorised to conduct the maintenance under CAR 42ZC, he was in breach of that regulation. Although Mr Lewis subsequently applied to CASA for authorisation in June 2005 that has not yet been granted.
79. Mr Langmead nevertheless submitted that the proof of the pudding is in the eating. Mr Heazlewood said that boroscope testing had been carried out on the engine of the Caravan aircraft on 17 April 2005. He said the result showed no evidence of sulphidation. He also said that a hot section inspection was recently conducted by The Aviation Centre and he had been told by Mr Dakin that there was no evidence of any sulphidation. However, CASA produced a letter dated 13 September 2005, written by Mr Allan Schwarze, the managing director of The Aviation Centre, which stated that sulphidation was noted, presumably, on the compressor turbine, but it was considered to be at stage 1. Stage 1 sulphidation is described in the Pratt & Whitney Canada Maintenance Manual as light sulphidation (initial coating deterioration) or a slight roughening of the surface and localised breakdown of the protective surface layer without the substrate being affected. Mr Langmead submitted that this was minor as it only involved the surface coating of turbine blades without corrosion having affected the turbine blades. However, the ATSB accident report explained that after the protective oxide coating is attacked, the underlying alloy will rapidly corrode. Although there is no guarantee that the wash regime recommended by Pratt & Whitney will entirely eliminate sulphidation, the fact that stage 1 sulphidation was evident on a hot section inspection should be reason why extra care must be taken in complying with the recommended wash regime.
Time between overhaul
80. On inspecting the engineering documents relating to the Caravan aircraft, Mr Wilson noted that the PT6A engine is subject to Airworthiness Directive AD/ENG/5 Amdt9. That Airworthiness Directive provides that the PT6A engine installed in the Caravan required overhaul or inspection in accordance with one of three options set out in clause 1.3 of the Airworthiness Directive. Currently, TGS Aviation has been maintaining the aircraft in accordance with clause 1.3(b), which permits 5,000 hours time in service between overhauls. However, that limitation is subject to compliance with the maintenance requirements detailed in Appendix A of the Airworthiness Directive. Appendix A requires the engine to be maintained in accordance with the system of maintenance approved under CAR 42M. TGS Aviation does not have that approval. Therefore, according to Mr Wilson, TGS Aviation must comply with clause 1.3(a) of the Airworthiness Directive. This requires that the engine be overhauled at periods listed in, and subject to the requirements of, the appropriate Pratt and Whitney Canada Service Bulletin, which mandates the overhaul period as 3600 hours. Although the particular engine fitted to the Caravan aircraft has only had some 1700 hours in service, it is a matter which must be taken into account by Mr Heazlewood and, of course, the chief pilot, in operating this aircraft.
June 2005 audit – Records, Flight Crew Duty and Flight Times
81. A number of breaches of the CAOs, Regulations and/or the Operations Manual were detected by Mr Hogan in the course of the June 2005 audit. Mr Hogan noted that Mr Lewis did not hold a current CAO 20.11 certificate for the GA‑8 Airvan aircraft. Mr Lewis said that this was a minor omission and he has a current CAO 20.11 certificate under the Flying Training School AOC, as he is also employed by that organisation. Although technically in breach of the CAO, Mr Lewis maintained that nothing arose out of that as he did hold a certificate but under a different organisation.
82. Mr Hogan also noted that company pilots, including Mr Lewis, had not been trained, and “signed off” as having been trained, to conduct daily inspections on the aircraft, as per the requirements of the Operations Manual Part A A7.2, 2, 3, and 4. According to Mr Lewis, all of the pilots were qualified to conduct daily inspections, but the training certificates had not been signed off. The Operations Manual also requires the training certificate to be completed and placed on each pilots' file as evidence that the training had occurred. None of the pilot files had these completed forms on them.
83. The flight time records disclosed that on 18 January 2005, Mr Lewis had a 14‑day duty time of 91.2hrs, which exceeded by 1.2hrs the limits set out in paragraph 1.13 of CAO 48.1. This was apparently an oversight by Mr Lewis. Mr Lewis claims that no breach in fact occurred because the excess 1.2hrs occurred on a day when he was not rostered to fly. He did not in fact fly on that day and he was not rostered to fly on that day. Mr Hogan conceded that that may well be the case.
84. Mr Hogan noted that Mr Brown flew 10.1hrs and completed a duty period of 11 hours on 23 May 2005; and that he was then rostered for duty on 25 May 2005 at 0900 hours without having had the required rest period, given that he had a 7‑day flying total of 30.7 hours. This was contrary to paragraph 1.16 of CAO 48.1. Mr Lewis acknowledged that there was a breach to the extent of .7 hours and when he discovered the breach, he gave the pilot 24 hours off duty and documented the event. He also discussed the limitations set out in CAO 48.1 with Mr Brown.
85. Mr Hogan found that a number of line pilots were not completing operational forms which were required to be completed in accordance with the Operations Manual. This was a breach of CAR 21.5(9). In most cases, pilots, including Mr Lewis, had not completed the section required to state the fuel used for a flight on a declog; and, in one case, a consignment note was accepted without the weight of the payload to be carried identified.
86. On 12 and 13 October Mr Lewis did not have the required rest period between tours of duty, as prescribed by paragraph 1.2 of CAO 48.1. Although Mr Lewis had 9 consecutive hours rest, it was not between 10:00 p.m. and 6:00 a.m. as required by the CAO.
CONCLUSIONS
87. According to CAO 82 clause 5.5, a Chief Pilot Approval remains in force, where a period is not specified in the Instrument of Approval, subject only to the approved person maintaining a satisfactory level of performance. Clause 6.1 provides that in spite 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.
88. The only means available to CASA to measure whether a chief pilot has met an acceptable standard when acting as chief pilot, is by comparing the chief pilot's performance against the responsibilities set out in clause 2 of CAO 82. The relevant responsibilities are as follows:
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)arranging flight crew rosters;
(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)….
89. In the course of an audit conducted by CASA on 17 and 20 November 2004, CASA drew Mr Lewis' attention, specifically, to Bass Strait crossings in single engine charter aircraft. According to Mr Lewis, he took a number of steps to ensure that failure to track the mandatory routes would not occur in the future. However, despite the legislation being brought to Mr Lewis' attention in November 2004, some three months later, when planning to fly from West Sale to Flinders Island, Mr Lewis completely overlooked the mandatory route requirements. Mr Lewis, at first, when the RCA was issued, claimed that he was put under extraordinary pressure by the CASA officers conducting a ramp check at West Sale, causing him to completely forget about the mandatory route requirements. However, when it was later pointed out to him that the flight plan, which he had prepared earlier that day before flying from Tooradin to West Sale to embark passengers was planned by the direct route and not the mandatory route, Mr Lewis said that he simply forgot about the mandatory route requirement and he believed that was due to the fact that he was unaccustomed to operating aircraft across Bass Strait, having only been employed by TGS Aviation for a short period of months. He also said that he had previously been flying in Queensland where, as a general rule, direct routes were flown. However, little was said about the requirement of a pilot in command of an aircraft to properly plan every flight. Under CAR 239, the pilot in command is required to make a careful study of, amongst other things, all available information appropriate to the intended operation and the air traffic control rules and procedure pertaining to the particular flight being contemplated. It is difficult to excuse a person who acts as a chief pilot for an AOC holder for failure to comply with mandatory planning requirements, especially when there is no indication that he was under any particular pressure when he conducted that planning.
90. Mr Lewis’ claim that, in any event, he did not breach any regulations because he remained within 25 nautical miles of a suitable forced landing area does not assist him. If in fact his route was within 25 nautical miles of a suitable landing area, that was merely fortuitous and had nothing whatsoever to do with planning. In fact, there was no evidence that Mr Lewis carried a WAC chart with him on the flight; and the line drawn on the chart presented to me in evidence was produced only for the purpose of demonstrating that there was no breach of regulations.
91. Mr Lewis sought to make much of the fact that, in the event of an engine failure, he was always within 25 nautical miles of a suitable landing area. However, an examination of what appears to be a relaxation of the requirement set out in CAR 258 discloses a serious conflict between the CAR and the AIPs. AIP‑ENR paragraph 76 apparently overrides the requirement under CAR 258 which prohibits flights in single engine aircraft over water beyond gliding distance to a suitable landing area. It is unclear to me how an AIP, issued under the Air Services Regulations, can override a mandatory provision in the CAR. Furthermore, by doing so without the stipulation of a minimum altitude when flying at up to 25 nautical miles from land, the AIP‑ENR appears to permit single engine aircraft to fly well beyond their glide range to any land whatsoever, thereby seeming to frustrate the CAR 258 requirement, and possibly placing an aircraft and its occupants in a perilous position. Despite that, the AIP‑ENR refers to 25 nautical miles from “a suitable landing area”. It is difficult, if not impossible, to understand the reason for that when, without any minimum altitude limitations, that requirement would, in many instances, be irrelevant. There seems to be no point at all in mandating that an aircraft can fly within 25 nautical miles of a suitable landing area if, in the event of an engine failure, it cannot reach land because it is at an altitude which does not permit the aircraft to glide that distance. In my opinion, this apparent contradiction is unsatisfactory and may result in unsafe operations. It should receive urgent attention from CASA.
92. Although it was generally agreed that Mr Lewis' action in flying direct from West Sale to Flinders Island did not pose an unacceptable risk to air safety, and I accept Mr Langmead's submission that air safety is not an absolute, I nevertheless have difficulty in accepting that Mr Lewis' conduct in respect of this incident displays performance of a standard acceptable for a chief pilot.
93. Mr Lewis' problems with loading the aircraft at West Sale, when looked at in isolation, may not seem like a significant breach of the regulations although, it is surprising that an experienced pilot would make such errors. Of more concern is the fact that Mr Lewis, in order to resolve his aircraft’s weight problem, initially suggested the removal of some of the variable reserve fuel which the aircraft was required to carry in accordance with the Operations Manual. I am concerned that this action was even contemplated, particularly by the chief pilot.
94. The ramp check, conducted on 22 June 2005, occurred after the Tribunal had granted a stay of the operation of the cancellation of Mr Lewis' Chief Pilot Approval. Although a stay was granted, it was on the condition that CASA have liberty to apply, on 24 hours notice, to have the stay revoked in the event that CASA detected any serious breaches of the Act, the CARs, the CSR or the CAOs. Despite being cautioned at the stay hearing, Mr Lewis nevertheless flew the Caravan aircraft to Moorabbin at a time when the Maintenance Release for that aircraft indicated that maintenance was due and it had not been certified as having been completed. It is extraordinary that Mr Lewis would have even contemplated taking such a step given that he must have been aware that CASA was carefully monitoring the operations of TGS Aviation. The reasons given by Mr Lewis for flying the aircraft with maintenance items outstanding are unsatisfactory. Ultimately, he must have been aware that it was his responsibility to decide whether to accept the aircraft in the condition that it was; and relying on Mr Heazlewood's advice does not excuse him from that responsibility. As a chief pilot, he must be in control of all operational matters affecting the safety of flying operations and it is his duty to ensure that the AOC holder’s operations are conducted in accordance with all of the regulations and orders relevant to a particular flight. Despite that, Mr Lewis chose to rely on inappropriate advice which he must have been aware was inappropriate. Any pilot with minimal aviation experience would not have flown the aircraft where due maintenance had not been certified as having been completed, irrespective of any advice about the safety risk involved in doing so. The CASR and CAR are absolutely clear about the operations of an aircraft where an Airworthiness Directive has not been complied with and where maintenance required to be carried out has not been certified as complete. There was no reason for Mr Lewis to rely on Mr Heazlewood at all.
95. Although the worn tyre incident seems reasonably innocuous by itself, it highlighted an apparent deficiency in Mr Lewis' general knowledge regarding operations of that aircraft and a lack of concern about ensuring that all pilots who operated under the TGS AOC were properly trained and fully understood the limitations which attach to the operation of various aircraft.
96. The situation regarding the compressor and compressor turbine washes is the cause of major concern regarding Mr Lewis' suitability to act as chief pilot. The handling of this maintenance work was not only unsatisfactory; but in my opinion, it raised serious safety issues. It also exposed Mr Lewis' apparent inability to exert control over operational matters at TGS Aviation. Mr Lewis again sought to rely on advice given to him by Mr Heazlewood, despite the fact that, ultimately, operational matters affecting the safety of flying operations were his responsibility. His adoption of an unquestioning reliance on Mr Heazlewood's advice indicates to me that Mr Lewis is only too ready to abdicate to others his responsibility for compliance with the appropriate regulations. This is the very antithesis of the chief pilot's authority and responsibility under the CAOs.
97. I was also concerned by Mr Lewis' response to some of the criticisms levelled at him regarding compressor and compressor turbine washes. In particular, I was concerned by what certainly appeared to me to be an attempt to mislead CASA when he was asked whether he did both the compressor and compressor turbine washes. He said that he did both when he must have known that only the compressor turbine wash was being conducted. Further, despite not having maintenance approval to conduct the washes, Mr Lewis, belatedly, attempted to rely on clauses 12 and 18 of Schedule 8 of the CAR as authorising him to conduct the washes. Furthermore, Mr Lewis expressed reluctance to conduct compressor and compressor turbine washes at Flinders Island because suitable equipment was not available to conduct that maintenance. Again, that is not the response which one would expect from a chief pilot.
98. The breaches of the CAO, CAR and/or Operations Manual regarding the records of flight crew duty and flight times are indicative of the generally low standard displayed by Mr Lewis as chief pilot of TGS Aviation. Although some of the breaches may be described as relatively minor, they are indicative of a lower level of performance than is acceptable.
99. Mr Langmead submitted that the operations conducted by TGS Aviation are small and constitute "first base" for a chief pilot. He explained that one should not expect the same standard of proficiency in a small operation as one would in a major regular public transport operation. Although I accept that standards will vary and that, in a small operation such as TGS Aviation, it is unlikely that the operator will attract the same standard of candidate as would a regular public transport operation, the standard nevertheless needs to be high and maintained. It is not unreasonable to expect that the chief pilot of a small operation will not only comply with all of the regulations pertaining to that operation but will also set an example for all other pilots operating under the AOC.
100. Mr Lewis has, by his actions and omissions, demonstrated that he is not a person either capable or willing to take control and responsibility for the safe air operations of the AOC holder. It appears that he is far too readily swayed by opinions given to him by others; opinions which must have been apparent to him, at least on the major issues, to have been incorrect. In my view, a chief pilot should display very sound knowledge of all operating procedures as he is required to set the standard for line pilots. It is unacceptable for the chief pilot to tell line pilots to comply with regulations, and then not do so himself, as was demonstrated by his failure to comply with the mandatory routes for Bass Strait crossings. I was also concerned by Mr Lewis' response to RCAs, which seemed to me to indicate that he did not consider the breaches found by CASA to be all that serious. It also appeared to me that Mr Lewis was reluctant to discuss matters with CASA even though considerable effort was made to show that he could and would work well with CASA officers in the future. At this point in time, I am not satisfied that Mr Lewis would do so.
101. Mr Langmead submitted that I should have regard to the statement made by Dixon J, as he then was, in Briginshaw v Briginshaw (1938) 60 CLR 336 (at 361‑363). Mr Langmead particularly relied on the following passage (at 362):
…The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters "reasonable satisfaction" should not be produced by inexact proofs, indefinite testimony, or indirect inferences.
102. While I certainly accept Mr Langmead's submission that all of the matters described by Dixon J should be taken into account in considering whether the breaches alleged by CASA to have been committed by Mr Lewis in fact occurred, in my view, the evidence plainly points to such breaches in this case. Having found on the balance of probabilities that such breaches occurred, the only decision which I am required to make is whether Mr Lewis' performance as a chief pilot is of an acceptable standard. In my view, it is not. For that reason, CASA's decision to cancel Mr Lewis' Chief Pilot Approval should be affirmed.
103. The stay order, which was granted on 20 May 2005, is revoked and shall cease to have effect from the date of this decision even if Mr Lewis avails himself of the appeal provisions set out under s 43 of the Administrative Appeals Tribunal Act.1975.
I certify that the one hundred and three [103] 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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