Re Snook and Civil Aviation Safety Authority
[2003] AATA 285
•27 March 2003
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2003] AATA 285
ADMINISTRATIVE APPEALS TRIBUNAL )
) No W2002/85
GENERAL ADMINISTRATIVE DIVISION ) Re PETER JOHN SNOOK Applicant
And
CIVIL AVIATION SAFETY AUTHORITY
Respondent
DECISION
Tribunal Associate Professor S D Hotop, Deputy President
Air Marshal I B Gration, MemberDate27 March 2003
PlacePerth
Decision The Tribunal sets aside the decision under review and, in substitution therefor, decides that the applicant’s Certificate of Approval Number 5156 Issue 02 should not be cancelled.
...........(sgd S D Hotop).............
Deputy President
CATCHWORDS
CIVIL AVIATION – Civil Aviation Regulations 1988 (“the Regulations”) – certificate of approval – applicant installed engine in aircraft without authorised release certificate – applicant had previously contravened the Regulations – whether engine installation constituted a contravention of the Regulations – whether applicant a fit and proper person to hold certificate of approval – whether applicant’s certificate of approval should be cancelled.
Civil Aviation Act 1988 ss 31,98
Civil Aviation Regulations 1988 regs 30, 35, 42U, 42W, 42WA, 269, Dictionary Pt1Re Griffiths and Civil Aviation Authority (1994) 34 ALD 554
Maxwell v Dixon [1965] WAR 167
Re Taylor and Department of Transport (1978) 1 ALD 312REASONS FOR DECISION
27 March 2003 Associate Professor S D Hotop, Deputy President
Air Marshal I B Gration, MemberIntroduction
1. This is an application by Peter John Snook (“the applicant”) for review of a decision of a delegate of the Civil Aviation Safety Authority (“CASA”), dated 26 February 2002, cancelling a Certificate of Approval (Number 5156, Issue 02) granted to the applicant by CASA on 17 August 2001. That decision was made under reg 269(1) of the Civil Aviation Regulations 1988 (“the Regulations”).
2. At the hearing the applicant was represented by Mr P Berman of Counsel and CASA was represented by Mr B Shields of Counsel. The Tribunal had before it the statement and documents (“T documents”, T1-T57, pp 1-202) lodged by CASA pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 and various documentary exhibits tendered in evidence by the applicant (Exhibits A1-A6) and by CASA (Exhibits R1-R8). Oral evidence was given by the applicant and by the following additional witnesses: Walter Thomson and Clive Phillips (who were called by the applicant), and John Gregory, Richard Koch, Phillip Little and Roger Watson (who were called by CASA).
The Factual Background
3. The factual background to the abovementioned decision of 26 February 2002 and the present application for review of that decision, as appears from the T documents and about which there is no dispute between the parties, is as follows.
4. The applicant operates a business trading under the name “Aeronautique Australia” whose main location is at Jandakot Airport in Western Australia.
5. On 26 May 1993 a delegate of the Civil Aviation Authority (the predecessor of CASA), pursuant to reg 269(1) of the Regulations, suspended the applicant’s Aircraft Maintenance Engineer Licence (No W9414), which had been granted to him on 7 August 1984, and required him to undergo an Airworthiness Administration examination. (T4) The applicant subsequently passed that examination, attaining a mark of 83%, and his licence was reinstated “without prejudice” on 11 August 1993. (T5)
6. By letter dated 13 May 1994 an officer of the Civil Aviation Authority notified the applicant that it had been “discovered” that he had not complied with an Airworthiness Directive in relation to Piper Aircraft PA 38 VH-MMB. No further action was taken regarding this matter because of an undertaking by the applicant to show greater diligence in such matters. (T6)
7. On 1 February 1995 a delegate of the Civil Aviation Authority, pursuant to reg 269(1) of the Regulations, suspended the applicant’s Aircraft Maintenance Engineer Licence (No W9414) “until at least 31 October 1995”.. (T7) On 15 September 1995, following a request by the applicant for reconsideration of the suspension accompanied by supporting documentation, the delegate “revoked” the suspension. (T9)
8. By letter dated 16 August 1999 an officer of CASA notified the applicant that a recent audit of his records had revealed that he had not maintained up-to-date maintenance data in relation to 3 aircraft, and directed that he conduct a complete review of such maintenance data to ensure that it was up-to-date. (T12)
9. On 22 November 1999 an officer of CASA issued 2 “Non-compliance Notices” to the applicant stating that his organisation’s system of quality control did not contain a description of the audit system or the period between audits, and that no periodic internal audit had been carried out. It was subsequently recorded by that officer that the applicant had taken satisfactory corrective action on 24 November 1999 and 3 December 1999, respectively. (T13)
10. Following an audit of the applicant’s organisation by a CASA officer on 19 October 2000, 7 “Request for Corrective Action” notices were issued to him in relation to specified deficiencies in his quality control system. Corrective action was taken by the applicant in response to each of those notices and it was subsequently recorded by the abovementioned officer that a follow-up audit on 9 April 2001 was satisfactory. (T17-T23)
11. On or about 17 November 2000 the applicant issued 3 Maintenance Releases in respect of 3 PZL M-18 “Dromader” aircraft, namely, VH-NID, VH-NIN and VH-NIO. The maximum take-off weight of each aircraft was 5,300 kg whereas the applicant’s Certificate of Approval (Number 5156) at that time authorised maintenance activities for which a Maintenance Release was required to be issued, such activities being limited to the maintenance of aircraft with a maximum take-off weight not exceeding 3,500 kg. On 18 September 2001 a CASA Investigator recommended that an Infringement Notice be issued to the applicant in respect of 3 breaches of reg 30(3A) of the Regulations said to be constituted by the issuing of the 3 abovementioned Maintenance Releases. (T38) On 21 November 2001 CASA issued such an Infringement Notice to the applicant. (T45)
12. Meanwhile, on 12 July 2001 the applicant had lodged with CASA an “Application for Grant or Change of a Certificate of Approval” form in which he sought CASA’s approval of a change in the maintenance activities authorised by Certificate of Approval Number 5156, namely, a change in the maximum take-off weight of the aircraft, in respect of which maintenance was authorised, from 3,500 kg to 8,000 kg. On 17 August 2001 CASA granted to the applicant Certificate of Approval Number 5156 Issue 02, valid until 31 August 2004, authorising him to carry out the following aviation-related activities:
“Maintenance of the following Class B aircraft:
(a) Aircraft with a maximum take-off weight not exceeding 3500 kg
(b) PZL MA18 Dromader series aeroplanes.”
(Exhibit R5)
13. On 14 December 1999 Northampton Holdings Pty Ltd (whose proprietor was Ian Dunn) had lodged with CASA an “Application for Issue of a Special Certificate of Airworthiness” form in respect of PZL-M18A “Dromader” aircraft VH-NIN, requesting a Certificate in the Restricted category for agricultural and fire-fighting purposes. That application form was accompanied by supporting documentation in relation to that aircraft, including a document entitled “Airplane Flight Manual – PZL M18A ‘Dromader’ equipped with: ASz – 62IR-M18 Engine” dated May 1987, and an “Export Certificate of Airworthiness” (No E 354391) issued by the Federal Aviation Administration (USA) on 17 August 1999. (T31) On 23 December 1999 the requested Special Certificate of Airworthiness (No PH/10032) was issued by a CASA authorised person. (T32)
14. On 6 January 2000 CASA issued a Certificate of Registration (No PH/10032/02), in respect of aircraft VH-NIN, to Northampton Holdings Pty Ltd certifying that it was the owner of the aircraft and that the aircraft was first entered in the Australian Register on 10 December 1999. (T33)
15. A facsimile dated 7 December 2000 from Rudy Spiessl of Rudy’s Aero Engines Pty Ltd in Sale, Victoria to the applicant stated:
“To formalize our verbal discussions in reference to ASZ 62IR M-18 engines. My company is at your service to supply you with any technical data and advice for the above engine”.
(T34)
16. A facsimile dated 16 March 2001 from Rudy Spiessl to Mick Roberts c/- Maintenance Standards Branch, CASA, Canberra stated:
“From our recent phone conversation, RE: Imported PZL ASZ62IR-16 as fitted to the A.N.2 and the ASZ62IR M18 as fitted to the Dromader.
I seek clarification on C.A.S.A’s position on these engines in reference to AD ENG 4 AMDT 7, Requirement 2, and Note 4 page 5.
I also would like clarification on C.A.S.A’s position to PZL ASZ62IR-16 engines being converted in the field to the ASZ62IR M18 engines for the purpose of being installed to the Dromader.”
(T35)
17. On 23 April 2001 an Engineering Order (No EA 010402) was prepared by Edge Aviation (Aust), Sale, Victoria. The contents of that Engineering Order were as follows:
“TITLE: Conversion of ASZ-62IR-16 to ASZ-62IR-M18 Configuration.
EFFECTIVITY: ASZ-62IR-16 engines only.
This EO authorises the conversion of ASZ-62IR-16 engines to ASZ-62IR-M18 configuration.
NOTE: This EO is only applicable to engines converted and test run by Rudy’s Aero Engines Pty Ltd at West Sale Airport, Victoria.
1. Remove Oil Pump P/N MSZ-8A from engine.
2. Clean rear case surface where oil pump was removed.
3.Remove 4 off P/N 62.611.39 & 4 off P/N 6.11.14 studs. Replace with 8 off P/N 62.30.01 studs.
4.Install Oil Pump P/N MSZ-8M.
5.Fit engine to test truck and test run. Engine shall be run in accordance with the standard Rudy’s Aero Engines engine test run schedule. All engine parameters shall comply with the manufacturer’s data for the ASZ-62IR-M18 engine.”
The Engineering Order contained an endorsement that it had been “approved pursuant to CAR 35” and bore the signature “R MacGillivray”.. (T36, p118)
18. A “Log Book Entry”, dated 23 April 2001, was prepared by Trent Stothers of Rudy’s Aero Engines Pty Ltd for Ian Dunn Aviation in relation to Engine Model No “ASZ-62IR-M18”, Engine Serial No “K16344225”. The Log Book Entry commenced with the words:
“To convert ASZ-62IR-16 engine to ASZ-62IR-M18 the following was done”
and then described the work that was done and the parts that were used in carrying out that conversion in accordance with the abovementioned Engineering Order. (T36, p117)
19. By letter dated 5 May 2001 Mick Roberts, Section Head, General Aviation/Aerial Work, Maintenance Standards Branch, Aviation Standards Division, CASA, Canberra replied to Rudy Spiessl’s facsimile of 16 March 2001 (see paragraph 16 above) as follows:
“Re: PZL ASZ62IR-16 and the ASZ62IR-M18 engines.
…
I am pleased to take this opportunity to provide clarification of the matters raised in your fax dated 16th March 2001.
The subject engines may be fitted to an Australian registered aircraft after importation, provided they are supplied under documentation that meets the requirements of CAR 42W.
The Airworthiness Directive AD/Eng 4/AMDT 7; Requirement 2, and Note 4 page 5, only becomes applicable at the time the engine is overhauled.
These engines may be converted in the field for the purpose of being installed in aircraft other than originally intended under a CAR 35 or STC Approval process.
I trust this response provides the clarification you require.”
(T37)
20. By letter dated 11 January 2002 the applicant was given a “Notice of Proposed Action to Vary, Suspend or Cancel Certificate of Approval Number 5156 Issue 2" by John Slaughter, Area Manager, West, CASA in the following terms:
“I am writing to give you notice that, in accordance with sub-regulation 269(3) of the Civil Aviation Regulations 1988 (CAR 1988), I am considering recommending to the Delegate that the Certificate of Approval number 5156 be varied, suspended or cancelled on the basis of the facts and circumstances described below.
FACTS AND CIRCUMSTANCES
1.You are now, and at all times mentioned in this notice, the holder of Certificate of Approval number 5156 Issue 2 (‘the COA’), which authorises the following activities:
1.Maintenance of the following Class B aircraft:
(a) Aircraft with a maximum take-off weight not exceeding 3500Kg;
(b) PZL MA18 Dromader series aeroplanes.
2.The COA authorises you to carry out the activities specified in the COA at the following locations:
(a)26B Compass Road
Jandakot Airport
JANDAKOTWA 6164
(b)Hangar 110
Geraldton Airfield
GERALDTON WA 6530
(c)Temporary and Remote locations as required.
3.You have carried out and certified for completion of maintenance on, amongst other aircraft, PZL M18A aircraft VH-NIN.
4.Engine Model ASZ-62IR-16, Serial Number K16344225, had been previously modified on or about 23 April 2001 by Rudy’s Aero Engines Pty Ltd at West Sale Airport Victoria Australia.
5.Edge Aviation (Aust) of Sale Victoria Australia Engineering Order EO 010402 relates to a change from ASZ-62IR-16 to ASZ-62IR-M18 configuration. Rudy’s Aero Engines Pty Ltd allegedly used this engineering order to modify the engine.
6.Type Certificate Data Sheet (TCDS) Number E1ONE clearly shows that EO 010402 does not in fact actually change the engine model to ASZ-62IR-M18 which is the required model for fitment to the PZL M18A aircraft. A visible difference between the ASZ-62IR-16 engine and the ASZ-62IR-M18 is that the former is fitted with an air compressor and the latter with a hydraulic pump necessary for the operation of the hydraulic components contained in the PZL M18A aircraft. Further close inspection (including internal inspection) of the engine may need to be carried out to establish whether the engine meets TCDS Number E1ONE as a ASZ-621-M18 (sic) engine.
7.Neither EO 010402 covering the modification nor the loose leaf log book statement covering the modification issued by Rudy’s Aero Engines Pty Ltd make mention of fitment of the hydraulic pump or other inspections necessary to establish the ASZ-62IR-M18 engine configuration has been met.
8.You should have been alerted by the engine configuration on delivery from Rudy’s Aero Engines Pty Ltd and by the engine data plate which clearly showed the engine to be of ASZ-621-16 (sic) configuration.
9.On or about 24 April 2001, you installed engine Serial Number K16344225 into VH-NIN.
10.By fitting unapproved engine Serial Number K16344225 into VH-NIN, you modified the aircraft in contravention of regulation 42U of the Civil Aviation Regulations 1988.
11.Regulation 42U states in part that:
‘A person must not modify or repair an Australian aircraft unless:
(a)the design of the modification or repair:
(i)has been approved under regulation 35; or
(ii)is specified in the aircraft’s approved maintenance data; and
(b)the modification or repair is in accordance with that design.’
12.Evidence before me suggests that:
(a)the only documentation accompanying engine Serial Number K1634425 (sic) was a Russian Style Log Book;
(b)you undertook to raise an Australian Engine Loose Leaf Log Book;
(c)the engine data plate fitted to engine Serial Number K1634425 (sic) clearly stated that the engine was a ASZ-62R-16 (sic) model which is not suitable for the PZL M18A aircraft;
(d)engine Serial Number K16344225 was not accompanied with the documentation detailed in CAO 100.16 Appendix 1 – in this case an Authorised Release Certificate (JAA Form 1) for the original acquisition of the engine from Poland; and
(e)engine Serial Number K16344225 was not accompanied with the documentation required by subregulation 42W(4)(d) of the Civil Aviation Regulations 1988 – in this case an Authorised Release Certificate (Form 1) for the maintenance carried out on the engine by Rudy’s Aero Engines Pty Ltd.
13.The requirements for documents that should accompany an aircraft component and should be on hand prior to fitment to an aircraft are clearly stated in CAO 100.16 Appendix 1 and in Civil Aviation Advisory Publication 42W-1(1).
14.You should have been well aware of the required documentation accompanying an aircraft component after maintenance has been carried out on it prior to fitment to an aircraft.
15.It is my opinion that engine Serial Number K16344225 was fitted to PZL M18A aircraft VH-NIN contrary to the requirements of subregulation 42W(4) of the Civil Aviation Regulations 1988.
16.Subregulation 42W(4) of the Civil Aviation Regulations 1988 states in part:
‘Subject to regulations 42Y and 42Z, a person must not install an aircraft component in an aircraft unless:
(d) if regulation (sic) (5) applies to the component, and the component was supplied by another person – the supplier of the component supplied an authorised release certificate with it and for it;’
17. Subregulation 42W(5) of the Civil Aviation Regulations 1988 states in part:
‘This subregulation applies to:
(b) an aircraft component that has had maintenance carried out on it.’
18.The following is a history of your previous breaches of the regulations and of enforcement actions by the Authority:
…
[See paragraphs 5-11 (above) of the Tribunal’s Reasons where that history is set out.]
GROUNDS FOR VARIATION, SUSPENSION OR CANCELLATION
19.Paragraph 269(1)(a) of CAR 1988 provides that it is a ground for the variation, suspension or cancellation of a certificate of approval if the holder of the certificate has contravened a provision of the Act or the Regulations.
20.On the basis of the matters set out in paragraphs 3-17, I have reason to believe that you have contravened the following provisions of Civil Aviation Regulation (sic) 1988:
(a)Regulation 42U; and
(b)Sub-regulation 42W(4)
21.Further, pursuant to paragraph 269(1)(d) of CAR 1988, CASA may vary, suspend or cancel a certificate where CASA is satisfied that the holder of the certificate is not a fit and proper person to have the responsibilities and exercise and perform the functions and duties of a holder of that certificate.
22.The matters set out in paragraph 18 together with the matters set out in paragraphs 3-17 indicate to me that you are not a fit and proper person to have the responsibilities and exercise and perform the functions duties (sic) of a holder of that certificate.
SHOW CAUSE
In accordance with subregulation 269(3) of the Regulations I am allowing you 28 days from the date of this notice to show cause why, on the basis of the facts and circumstances set out above, I should not recommend to the delegate that the Certificate of Approval number 5156 Issue 2 issued to you be varied, suspended or cancelled.
…”.
(T48, pp 144-149)
21. On 15 January 2002 the applicant responded in writing to the above Notice and also requested the holding of a “Show Cause Conference”.. (T49) Such a conference was held on 22 January 2002, present at which were Ms K Levinge, Legal Officer, CASA, Mr J Slaughter, Mr T Watson, Senior Airworthiness Inspector, CASA, and the applicant. The conference was recorded on audiotapes and a transcript thereof was made. (T50)
22. On 20 February 2002 Terry Farquharson, Area Manager – West Area Office, CASA made a recommendation to Mr Slaughter that a Notice of Cancellation of Certificate of Approval Number 5156 Issue 2 be signed by him. (T54)
23. On 26 February 2002 a Notice of Cancellation of Certificate of Approval Number 5156 Issue 2 was signed by Mr Slaughter and was subsequently served on the applicant. (T3)
24. On 11 March 2002 the applicant lodged with the Tribunal an Application for Review of the abovementioned decision to cancel his Certificate of Approval. (T1)
25. On 21 March 2002 the Tribunal made an Order, pursuant to s41(2) of the Administrative Appeals Tribunal Act 1975, staying the implementation of the abovementioned decision to cancel the applicant’s Certificate of Approval, subject to specified conditions. On 6 June 2002 a request by CASA that the abovementioned stay order be revoked was refused by the Tribunal.
The Applicant’s Evidence
26. The applicant, who described himself as an aircraft technician, confirmed that he had sworn 2 affidavits in relation to the present matter and he verified the contents of those affidavits.
27. The contents of the applicant’s affidavit sworn on 20 March 2002 (Exhibit A5), omitting the “Exhibits” thereto, are as follows:
“. . .
Background Matters
2.I am a qualified licensed aircraft maintenance engineer. My wife and I run a light aircraft engineering business at Jandakot Airport, Western Australia. We are a partnership and trade as Aeronautique Australia.
3.I am a well qualified and experienced licensed aircraft maintenance engineer. CASA has issued to me an aircraft maintenance engineer licence in the following categories:
a)Airframes: group 1 (airframe systems); group 5 (power driven fluid systems); group 6 (air-conditioning systems) and group 10 (pressurisation systems).
b)Engines: group 1 (piston engines and systems) and group 3 (supercharging systems).
4.I have worked continuously as a licensed aircraft maintenance engineer since 1984. Between 1984 and 1989 I subcontracted as a licensed aircraft maintenance engineer to various Certificate of Approval holders. Between 1989 and 2002 I have operated with my own certificate of approval. I have hired additional licensed aircraft maintenance engineers from time to time, as well as a clerk, a cleaner and two apprentices. My wife has worked in the partnership since 1989, assisting with financial and other administrative tasks.
5.A licensed aircraft maintenance engineer can only perform maintenance, modification, repair and related testing and inspection functions under the auspices of a Certificate of Approval.
6.I am 52 years of age, and my wife and I endeavour to support our four children from the Aeronautique Australia business.
7.Aeronautique Australia operates from a hangar owned by my wife and me. We provide routine inspection, maintenance and repair services for light aircraft. Prior to the cancellation of the Certificate of Approval, we maintained around 30 light aircraft.
8.In Western Australia Dromader aircraft are used in fire suppression activities. Ian Dunn of Ian Dunn Aviation operates Dromader aircraft for this purpose. In November 2000 Ian Dunn approached me to discuss the maintenance of Dromader aircraft by Aeronautique Australia. My Certificate of Approval was amended on 17 August 2001 to permit this work. Prior to this amendment my Certificate of Approval was limited to aircraft with a maximum takeoff weight of less than 3500g, and the maximum takeoff weight of a Dromader is just under 5000kg.
9.On 15 February 2002 my maintenance authority to certify for Dromader engines was re-issued by CASA, expressed to be valid until 30 April 2002. This permits me to inspect and issue a maintenance release for a Dromader engine, but does not authorise me to overhaul a Dromader engine.
. . .
The allegations upon which CASA relies to support the cancellation of my Certificate of Approval
27.Apart from historical dealings with CASA in relation to regulatory compliance, CASA in cancelling my Certificate of Approval relies on two main issues which relate to the fitting of an engine to a Dromader aircraft:
a)fitting an unapproved engine to a Dromader aircraft; and
b)fitting that engine to a Dromader aircraft without an accompanying authorised release certificate.
The facts concerning the allegation that I fitted an unapproved engine to a Dromader aircraft
28.a) Ian Dunn of Ian Dunn Aviation asked me to fit an overhauled engine to a Dromader aircraft.
b)He produced to me a United States of America Export Certificate of Airworthiness which confirmed that the engine was a dash 16 engine which had been newly overhauled. I understand that such a USA Export Certificate of Airworthiness is issued by the FAA (the US equivalent to CASA), and that its contents can be relied upon as stating that in accordance with the laws of the United States of America governing aviation, the engine was newly overhauled.
c)I note that in the CASA letter of cancellation of my Certificate of Approval (Exhibit PJS3 to this affidavit) it is alleged in paragraph 10 that Mr Dunn has denied in writing that an FAA Certificate of Airworthiness exists for the engine in question. I note that this denial is said to have occurred in response to a CAR 301 request. CAR 301 requires a person who has custody of a document required under the CARs to be kept, to surrender it to CASA upon request in writing. I do not know whether Mr Dunn’s letter in which he denies the existence of an FAA Certificate of Airworthiness for the engine in question states that he did not have it in his custody at the time of the request from CASA, or whether he states that so such Certificate of Airworthiness ever existed.
d)Mr Dunn recently informed me of his intention to travel to Poland, and I believe he is presently travelling in Poland. I have no means of contacting him.
e)If Mr Dunn says that there was never a USA FAA Certificate of Airworthiness for the engine, he is wrong. He showed it to me and there is no doubt at all as to what it was or what it said. It clearly stated that the engine in question was zero time.
f)Ian Dunn also produced to me at that time a log book for the engine which was in a foreign language. While I could not read the foreign language I did observe the serial number of the engine to which it related, which was the same as the serial number on the USA Export Certificate of Airworthiness for the engine. Ian Dunn arranged for this log book to be translated, and he informed me that the translated log book confirmed that the engine in question was newly overhauled. I did not sight the translation of the log book, and trusted Ian Dunn as to his report of its contents.
g)I have known Ian Dunn since 1985. I have done a lot of work for him. Ian Dunn Aviation is the largest agricultural aircraft operator in Western Australia, and Ian Dunn and his firm enjoy a good reputation in the aviation industry. I trust Ian Dunn’s word, and have never had any cause to question his integrity. It is on these bases that I trusted his report to me that the translated log book further confirmed that the engine was freshly overhauled.
h)I was therefore not concerned that the engine was anything but a freshly overhauled Dash 16 engine for a Dromader aircraft. I believed the paperwork to be completely in order.
i)What did concern me though was that I was aware that the Dromader aircraft to which Ian Dunn wanted the engine fitted, could only take a Dash 18 engine. I pointed this out to Ian Dunn. He said he would take the necessary steps to convert it to a Dash 18 engine, commencing with taking it to a person authorised by CASA to approve under CAR 35 the design of modification of aircraft components such as would be required to convert the Dash 16 engine to a Dash 18 engine.
j)I subsequently learned that Ian Dunn had obtained an engineering order dated 23 April 2001 from Edge Aviation at Sale Victoria, which authorised for the purposes of CAR 35 the modification of the engine from a Dash 16 to a Dash 18 configuration. Now produced and shown to me and marked with the letters PJS5 is a copy of the said engineering order.
k)I also learned that Rudy’s Aero Engines Pty Ltd performed the work specified on the engineering order which is Exhibit PJS5 to this affidavit, and that they produced a document dated 23 April 2001 which was stated to constitute a log book entry for the engine, which said that the engine had been converted from a Dash 16 to a Dash 18. Now produced and shown to me and marked with the letters PJS6 is a copy of the said log book entry.
l)Having sighted both the engineering order and log book entry (Exhibits PJS5 and PJS6 to this affidavit) before installing the engine on the Dromader, I was satisfied that it was in fact a Dash 18 engine.
m)Prior to fitting the engine to the Dromader, I noted that the manufacturer’s data plate on the engine still showed it to be a Dash 16. I mentioned this to Ian Dunn and he told me that Rudy’s Aero Engines Pty Ltd had omitted to change it and that he Ian Dunn would arrange for the data plate to be changed to Dash 18.
n)I fitted the engine to the Dromader in question on 24 April 2001. I raised an Australian log book for the engine, and entered in it that all historical details about the engine were contained in the previous log book, and in the attached log book statement from Rudy’s Aero Engines Pty Ltd (Exhibit PJS6 to this affidavit), and in the engineering order from Edge Aviation (Exhibit PJS5 to this affidavit). I certified in the engine log book that the engine installation had been correctly carried out by me.
o)At all times I reasonably believed that the engine I fitted to the Dromader was a Dash 18.
p)After CASA raised with me the issue of a release note in late 2001, I contacted Rudy’s Aero Engines Pty Ltd and asked Rudy for a release note.
q)Rudy told me that he could not issue a release note in terms of the original engineering order (Exhibit PJS5 to this affidavit), but could only issue a release note in accordance with a second version of the engineering order which at that stage I had never seen or heard of. This engineering order was dated 5 December 2001 and identified as issue 2. It plainly contradicted issue 1 of the same order (being Exhibit PJS5 to this affidavit) by stating that the work it describes is not effective to convert the engine from a Dash 16 to a Dash 18. Now produced and shown to me and marked with the letters PJS7 is a copy of the said issue 2 of the engineering order.
r)I removed the engine in question, and installed another engine. I do not know what became of the engine in question, save that it was returned to Ian Dunn.
s)CASA airworthiness personnel have since told me that in their view Rudy’s Aero Engines Pty Ltd should have raised a log book for the engine on completion of the work carried out by them. Rudy’s Aero Engines Pty Ltd should also have raised a release note.
t)My Certificate of Approval has been cancelled in part because I relied on the engineering order produced by Edge Aviation (Exhibit PJS5 to this affidavit) and the log book entry produced by Rudy’s Aero Engines Pty Ltd (Exhibit PJS6 to this affidavit), which turn out to contain the entirely misleading information that the approved modification to the Dash 16 engine converted it to a Dash 18 engine. Edge Aviation and Rudy’s Aero Engines Pty Ltd are both authorised by CASA to perform work on aircraft engines. They made a mistake, and I am being punished for their mistake.
u)An important part of the aircraft maintenance system in Australia is reliance on documentary certification by parties approved by CASA to perform various maintenance tasks. I relied on the certifications by Edge Aviation and Rudy’s Aero Engines Pty Ltd, both CASA-approved organisations. That they were in error should not be a basis for CASA to cancel my Certificate of Approval.
The facts concerning the allegation that I fitted an engine to a Dromader aircraft without an accompanying authorised release certificate
29.a) As stated in sub-paragraphs 28(a) to 28(e) above, I had sighted papers and had been given information which satisfied me that the engine in question was in fact a freshly overhauled engine.
b)To this day I know nothing which suggests that the engine in question was anything other than a freshly and correctly overhauled engine.
c)My experience has been that a freshly overhauled engine does not require a release note, but does require a log book entry. Freshly overhauled parts on the other hand in my experience do require a release note.
d)If a release certificate was required for the engine by reason of the maintenance performed on it by Rudy’s Aero Engines Pty Ltd, I did install the engine without that release certificate. But I was not aware at the time of installing the engine, that the procedure I followed was an incorrect procedure.
e)However, I installed the engine in relation on the documents described above, in the clear and reasonable belief that the engine was a freshly overhauled engine, correctly modified to a Dash 18 engine.
My history of regulatory compliance
30.CASA in their cancellation letter (Exhibit PJS3 to this affidavit) in paragraph 23 list a history of breaches of regulations and enforcement actions by CASA.
31.I have never been charged or prosecuted by the DPP for any breach of regulations.
32.CASA lists 6 matters:
a)In 1993 my AME licence was suspended for 60 days, and was restored after I successfully submitted to re-examination in air legislation as it relates to aircraft maintenance.
b)In 1994 my AME licence was suspended in 1 category only (airframes). I consider this action was unjustified. This suspension related to the flap bracket on an aircraft I maintained. I observed some corrosion on the flap bracket of the aircraft during routine maintenance. I was of the opinion that it would remain serviceable for another 100 hours of flying or 12 months, but that as a matter of prudence the owner should replace it within 25 to 50 hours flying time. I discussed it with the owner, who agreed to have the maintenance performed within 25 to 50 hours flying time. The owner during the currency of the maintenance release I issued, changed over to a competitor of mine on the same airfield. That competitor alleged that the flap bracket required replacement earlier than the period I had specified. I disagree with his opinion. In any event, he reported me to CASA who initiated the suspension.
c)In November 1999, NCNs were issued in relation to my quality control system. The NCN is a standard device used by CASA in routine surveillance of engineering organisations, to improve systems and practices. The matters they related to were all rectified by me.
d)In August 2000, during routine surveillance by CASA, it was discovered that maintenance documents for two aircraft types were not of the latest revision status. At the time I was not maintaining any examples of those types, and as a matter of course would update the revision status of documents relating to any aircraft I worked on. I have always worked from current documents.
e)In October 2000 during normal annual audit, CASA issued some requests for corrective action. This is an entirely routine matter. These RCAs related to paperwork matters, all of which were rectified. This is part of the normal process of refining the practices, procedures and standards of an operation. I know of no maintenance organisation which has not received NCNs and/or RCAs as a result of routine surveillance by CASA.
f)In November 2000 when I started work on Dromader aircraft, I was aware that my Certificate of Approval related to aircraft under 3500kg. I inspected the flight manual for the Dromader and ascertained that its empty weight was considerably less than 3500kg. I therefore mistakenly formed the view that no amendment to my Certificate of Approval was required. The maximum takeoff weight of a Dromader is just under 5000kg. My Certificate of Approval 3500kg limit was I later discovered a reference to maximum takeoff weight.
g)Upon discovering my error, I sought and received approval for amendment of my Certificate of Approval to permit work on Dromader aircraft. This amendment was obtained on 17 August 2001.
The safety of the Dromader was never compromised
33.I am not aware of any accident or incident attributable to any work performed by me on any aircraft or on any aircraft component in the entire time I have worked as a licensed aircraft maintenance engineer.
34.I am not aware that the engine I installed on the Dromader ever posed any threat to the safety of the aircraft in which it was installed. It operated without any problem for all the time it was installed in the Dromader. I am not aware that the engine in question was other than what its documents represented – a freshly and correctly overhauled engine.
35.My relationship with CASA over the years has of course involved input from CASA as to ways in which Aeronautique Australia could improve its operation. I have invariably been receptive and responsive to such input. It must be remembered that many of the quality control issues relate to documentation for new systems and processes progressively instituted by CASA as requirements for Certificate of Approval holders, during the period in which I have been in business. Both CASA and Certificate of Approval holders have had teething problems with the progressive implementation of quality control systems over the years.
. . .”.
28. The applicant’s second affidavit, sworn on 20 June 2002, refers chiefly to an incident involving the removal of a propeller from a Cessna aircraft on 18 April 2002 (“the propeller incident”). The relevant contents of that affidavit (Exhibit A6), omitting the “Exhibits” thereto, are as follows:
“. . .
11.The aircraft subject to the concerns raised by CASA is Cessna 188 registration VH-AUW (‘AUW’). The aircraft is owned by Lajette Corporation Pty Ltd of which Mr Phillip Little (‘Little’) is a Director.
12.AUW was registered in Australia on 1 March 2002, having previously been on the aircraft registry in Hungary. The aircraft AUW was brought to my hangar on 28 February 2002, by Little to undergo maintenance for the issue of a Certificate of Airworthiness (‘CoA’). The aircraft was delivered to the hangar with the engine and propeller already attached to the airframe, together its (sic) Hungarian log books and other relevant documentation.
13.During the course of the CoA, AUW was moved to Skyworx Aviation Engineering (‘Skyworx’), another maintenance organisation on Jandakot Airfield, for additional work in the form of a modification to the aircraft.
14.AUW was in the Skyworx hangar on 18 April 2002, when Little came into my own hangar and requested me to assist him to remove the propeller from AUW.
15.Little told me that he had another Cessna 188 aircraft, VH-ZAP (‘ZAP’) an unserviceable propeller (sic) and that he intended to use the propeller from AUW for a short period of time while the propeller for ZAP was being repaired. ZAP was located at an airfield some 100 km north of Perth, and was maintained by Northam Air Services (‘Northam’), a different maintenance organization to either my own or Skyworx. Little told me that the engineer from Northam would conduct all of the maintenance requirements including all log book entries and certification for the proposed fitment of the propeller to ZAP and its subsequent removal. It was intended that the propeller be refitted to AUW after it was subsequently removed from ZAP.
16.AUW was not flying and I was about two thirds (2/3) through the CoA and the associated documentation on 18 April 2002, however, I had raised an Australian propeller log book for AUW from the maintenance documentation accompanying the aircraft from Hungary and which referred to its serial number, 752621.
17.The propeller was attached to the engine and by the authorised release certificates issued by the Hungarian Civil Aviation Administration, which detailed all of the relevant information concerning the propeller, including its total time in service since overhaul, there was no reason to remove the propeller from the engine in the course of the CoA inspection, unless there were apparent defects or damage to the propeller evident during the inspection.
18.There were no defects or damage evident with the propeller during the inspection and on the basis of the documentation before me, and in light of the fact that the propeller was already attached to the engine and with no reason for its removal, I raised the Australian propeller log book for the propeller for AUW and recorded its primary entry in the maintenance log as follows:
‘Date 18/04/02 TIS 580.80 Refer attached log book entries for O/H (overhaul) and AD (airworthiness directive) status details. Attached to PPCB 65. Refer JAA form one H9 CAA-009 and WO no. Z002104. 1 fitted prop.’
19.I removed the propeller from AUW with the assistance of Little. While we were removing the propeller, Little noted that the engine oil, that is normally present between the prop and engine approximately ½ to a litre which spilled out into a drip tray had a reddish tinge, and appeared a little discoloured.
20.I did not believe that the discolouration observed by Little was of any serious concern however, as I had only been asked to remove the propeller, and that I had been told that all subsequent work and use of the propeller would be under the control of the Northam engineer, I left the Skyworx hangar leaving the propeller from AUW with Little and returned to my own hangar and commenced work on other matters.
21.About half an hour (1/2) after I had removed the propeller, Little arrived at my hangar and asked that I immediately give him the propeller log book for AUW which was to be delivered to the Northam engineer.
22.The log book belongs to the owner of the aircraft and must travel with the propeller and I complied with Little’s request. I told Little that I expected the Northam engineer to correctly comply with all the maintenance requirements and recording of documentation associated with the propeller log book and that all would be in order when the propeller was returned for fitting to AUW.
23.When the propeller log book was given to Little on 18 April 2002, it was marked as the propeller log book for AUW. It was never marked for ZAP by myself as has been alleged in the Koch statement. I note with concern that a person unknown to myself has put a line through the letters AUW at page 2 of the log book and put in the letters ZAP. The markings VH-ZAP appear on the front page of the propeller log book however, they were not put there by myself.
24.The propeller was never fitted to ZAP.
25.I was not engaged in any subsequent repair to the propeller which had been removed from AUW, and indeed, I was unaware that any repairs had been conducted on the propeller at the time a Mr Ivan Burroughs of CASA arrived at my hangar on 29 April 2002.
26.Mr Burroughs brought to my attention a propeller log book he was carrying and pointed out that the letters AUW had been crossed out and that the letters ZAP(sic). I told Mr Burroughs that I had raised the propeller log book for AUW and that I had no idea who would have changed the registration from AUW to ZAP on this log book. This explanation did not satisfy Mr Burroughs who said that I could quite easily lose my engineers licence over this incident. I did not understand why this could be so as I have not changed the registration markings as alleged. Mr Burroughs did not tell me that the propeller was in for repair. I was unaware at this stage that the propeller was being repaired.
27.On 17 May 2002, Little approached me and advised that an organization at Jandakot known as Airflite Pty Ltd (‘Airflite’) had completed some repair work on the propeller for AUW and requested that I refit the propeller to AUW.
28.I refitted the propeller on to AUW, and made the appropriate entry at page 15 of the propeller maintenance log book. I noted that the propeller log book as it was presented to me, still had the registration ZAP at page 2. I knew that this was an incorrect entry and so I put a line through the letters ZAP and re wrote the letters AUW, being the correct registration of the aircraft to which the propeller relates and initialled the entry. Now shown to me and marked ‘PJS4’ is a true copy of the McCauley propeller log book for propeller serial number 752621, being the propeller fitted to AUW.
29.AUW is still in the hangar at Skyworx awaiting the completion of modification works to the aircraft by them.
30.On 3 June 2002, I asked Little to send my solicitor a statement regarding events associated with the collection of the propeller from AUW from myself. Little gave me a statement signed by himself and asked me to send it to my solicitor by facsimile. Now shown to me and marked ‘PJS-5’ is a true copy of the statement sent by Little from my facsimile to Mr John Maitland on 4 June 2002.
31.On 4 June 2002, I received a copy of facsimile from CASA which enclosed a witness statement of Little signed 3 June 2002. Now shown to me and marked ‘PJS-6’ is a true copy of the facsimile and witness statement.
32.I refer to exhibit ‘PJS-6’ and say:
(a)Little stated that red dye ‘fluid’ gushed (now changed to dripped) from the hub of the propeller on removal.
(b)When we removed the propeller the normal quantity of engine oil which is present spilled to the floor into a drip tray which is placed on the hangar floor for the purpose of catching expected spillage. At that time, Little was squatting next to the drip whilst I was still on a ladder. Little made a mention that he thought that the colour of the oil appeared red. I observed the oil from the position of the ladder and said that I thought it resembled the colour of inhibiting or anti corrosive additive. On a closer inspection, I had no reason to change my mind and believed that it was inhibiting fluid.
(cThe red dye would not become evident until the engine oil contained in the hub of the propeller had been removed from the engine had been completely cleaned (sic). This had not been done when I left the propeller with Little and it would have been picked up by the subsequent engineer concerned with the proposed fitment of the propeller to ZAP. This was obviously done.
33.In relation to paragraph 6 of the Koch statement, I reiterate that at no time did I change the marks in the propeller log book by crossing out AUW and substituting the mark ZAP.
34.In relation to paragraph 7 of the Koch statement, I was unaware of the defect in the propeller found by the Northam engineer and any such defect should have been inserted by the engineer discovering the defect.
35.In relation to paragraph 8 of the Koch statement, I refer to and repeat the content of paragraph 17 above and say that I certified the propeller as being ‘fitted’ meaning that the propeller was already affixed to the engine.
36.In relation to paragraph 9 of the Koch statement, there has been no breach of CAR 42ZP by myself. I refer to and repeat the content of paragraphs 34 and 35 above and say further I had no opportunity to make the entry into the log book concerning the purpose for the removal of the propeller as it was taken from me by the owner before such entry was made. I had expected the Northam engineer to make the appropriate entries into the log book, however, as events turned out, the propeller was not fitted to ZAP (as would have been recorded in the propeller log book by the Northam engineer), but was repaired by Airflite and subsequently reinstalled on to AUW by myself on 17 May 2002 and certified.
37.In relation to paragraph 10 of the Koch statement, there was no false statement in breach of CAR 283.
38.In relation to paragraph 11 of the Koch statement, the dye oil leakage was not apparent. I refer to and repeat the content of paragraph 34 above.
39.In relation to paragraph 12 of the Koch statement, there has been no breach of CAR 52 as alleged. I refer to and repeat the content of paragraph 34 above and say further that the owner through its director, Little was present at the time of the propeller removal and that it was Northam engineering who discovered the defect and subsequently advised the owner.
40.I reiterate that I have complied with the conditions contained in the order made by the AAT on 21 March 2002, that CASA has been well aware of all of my activities since that date, and further, there has been no breach of air safety in respect of the propeller incident as alleged by CASA …”.
[The witness statement of Phillip Little dated 3 June 2002 and the “Koch statement” (namely, a witness statement of Richard Koch dated 28 May 2002) are set out below in, respectively, paragraph 48 and paragraph 45 of these Reasons.]
29. The applicant’s oral evidence-in-chief did not add substantially to the contents of his abovementioned affidavits and, accordingly, no useful purpose would be served by summarising it here.
30. In cross-examination the applicant was referred to the original log book (Exhibit R1) for engine serial number K16344225 – that is, the engine which (it is common ground) he installed in PZL-M18A “Dromader” aircraft VH-NIN on 24 April 2001. He acknowledged that the entries in that log book were in a foreign language which he was unable to read and that he had never been in possession of a transcript of that log book in the English language. He said, however, that he was present when a person who was able to read the log book did so and that person confirmed what Ian Dunn (the owner of the aircraft and the engine in question) had informed him, namely, that the engine had been “recently overhauled”.. He added that that person confirmed that the last entry in the log book (dated 18 June 1990) recorded that the engine had been overhauled.
31. The applicant also reiterated that he had seen an Export Certificate of Airworthiness in relation to the abovementioned engine. He was, however, uncertain as to precisely when and where he saw that certificate – he said that he saw the certificate before he first saw the engine in April 2001, probably during the period January - April 2001; and he saw it either in his hangar at Jandakot Airport or at the “bomber base” at Perth Airport, probably at the former location. Asked whether he compared the serial numbers on the certificate and the log book, he said that he perused both documents and was satisfied that they “related to one another” but that he did not then “make a specific point of recording the numbers” and did not now have a clear recollection of the serial number stated either on the certificate or in the log book. The applicant was referred to a letter dated 29 January 2002 from Ian Dunn to CASA in which, in response to a request from CASA to produce “any export certificate of airworthiness which is associated with engine Serial Number K16344225, be stated:
“To the best of my knowledge no FAA or JAA export C of A exists for Engine serial # K16344225”..
(T47, T51)
The applicant was unable to explain this discrepancy, merely commenting that CASA should have made more extensive inquiries with a view to confirming the existence of that certificate. Asked whether he had made any attempt to locate that document, he said that he had not because he regarded it as of no significance regarding the present matter. He said that the documents which were of most concern to him as regards installing the engine in the aircraft were the Engineering Order (prepared by Edge Aviation pursuant to reg 35 of the Regulations), and the Australian log book entry (raised by Rudy’s Aero Engines Pty Ltd), confirming that the engine had been converted from a “-16” engine to a “-18” engine, and that he had seen both of those documents before he installed the converted engine in the aircraft.
32. The applicant was also questioned about the propeller incident which occurred on 18 April 2002. He confirmed that Phillip Little was the principal of Lajette Corporation which owned Cessna 188 aircraft VH-AUW which had been imported from Hungary and that he (the applicant) was doing some work on that aircraft with a view to the issue of a Certificate of Airworthiness. In the meantime Mr Little had acquired another aircraft, VH-ZAP, and he required a propeller for fitting on that aircraft. It was decided that the propeller then on aircraft VH-AUW would be removed therefrom and fitted on aircraft VH-ZAP, and Mr Little sought the applicant’s assistance in the removal of that propeller from aircraft VH-AUW. The applicant confirmed that he personally removed the propeller from aircraft VH-AUW.
33. The applicant was referred to a “Propeller Log Book” (Attachment “B” to the Koch statement set out in paragraph 45 below) and he confirmed that that was the log book he had created in respect of the propeller he removed from aircraft VH-AUW. He also confirmed that he had never seen aircraft VH-ZAP on which that propeller was proposed to be fitted. He was referred to a page in the log book headed “Propeller Installation and Removal Record” on which, under the heading “Installation”, there was a reference to the aircraft identification in which the initials “AUW” were written and struck out and the initials “ZAP” were written alongside. He confirmed that the signature which appeared at the foot of that page was his, but that the information written on that page was incorrect because the relevant propeller had not been installed in aircraft VH-ZAP. He said that he had no recollection of having written the information on that page but ultimately acknowledged that he had done so but was at a loss to explain why he had done so.
34. The applicant confirmed that when he removed the propeller from aircraft VH-AUW Mr Little noticed that some “reddish” coloured fluid was leaking from the propeller and he brought that to the applicant’s attention. The applicant said that he merely commented to Mr Little that it looked like “inhibiting fluid” and left him to ponder what he was going to do about it. He added that Mr Little never asked him to inspect the propeller or to provide him with technical advice regarding the condition of the propeller. He denied that he said to Mr Little that the condition of the propeller was “not a concern”.. He acknowledged, however, that he was not then concerned about the condition of the propeller and that, if he had been, he would have so advised Mr Little.
35. In re-examination, the applicant explained that the propeller contained a fluorescent red dye, the leaking of which would indicate a possible crack in the hub, but that the fluid he observed leaking from the propeller did not appear to be that red dye and was more consistent with “inhibiting fluid or preservative oil”.
36. The applicant confirmed that that propeller was not in fact subsequently fitted on aircraft VH-ZAP but was instead sent for repairs after which he, on Mr Little’s instructions, refitted it on aircraft VH-AUW. He said that he then certified in the propeller log book that he had installed the propeller in aircraft VH-AUW on 17 May 2002.
The Evidence of Walter Thomson
37. Mr Thomson, the proprietor of an aircraft design business trading as “Thomson Design” which operates at Jandakot Airport in Western Australia, confirmed that he has held a delegation from CASA for “CAR 35” (that is, reg 35 of the Regulations) design work since 1992 and that he also holds an Aircraft Maintenance Engineer Licence issued by CASA. He also confirmed that the contents of his witness statement (filed on 22 July 2002) are true and correct. The contents of that witness statement (Exhibit A1) are as follows:
“…
1.Introduction
I am requested by the Applicant, Mr Snook, to provide evidence in respect of his application for a review of the decision of the Civil Aviation Safety Authority (‘CASA’) to cancel his Certificate of Approval on 26 February 2002. I understand that the issue central to the decision by CASA to cancel the Certificate of Approval is their allegation that Mr Snook fitted an unapproved engine to a Dromader aircraft VH-NIN.
My statement herein relates to the history of events surrounding the fitment of engine serial number K16344225 to VH-NIN.
2.History of Events
2.1 Early in the year 2001, the C of R Holder for VH-NIN requested Aeronautique to fit a specific engine to the aircraft. As the engine model number of the engine did not match the type listed in the airframe log book, Aeronautique advised the C of R Holder that approved data would be required before the engine could be fitted.
2.2 The C of R Holder arranged for an aircraft maintenance engineer speaking Russian and/or Polish to inspect the log book in the presence of Peter Snook of Aeronautique. The interpreter verified that the log book showed the most recent entries were for a full overhaul of the engine.
2.3 At the request of the C of R Holder for VH-NIN, on 27/3/2001, Thomson Design provided a draft Engineering Order (EO) to convert the –16 model engine to the –18M Model. The content was the result of prior discussion with CASA Melbourne Engineering and on 28/3/2001 CASA were faxed a copy for review. Their verbal comment was that the agreed requirements had been complied with and approval could proceed. Included with the EO was a draft Flight Manual Supplement (FMS), part of the agreed structure for approval.
2.4 In the course of preparing the EO, Thomson Design spoke with a US operator of Dromaders and Rudy’s Aero Engines Pty Ltd, both of whom rejected the need for the degree of parts changes indicated by the parts catalogues and insisted that only the external accessories applicable to the aircraft systems had to be changed.
2.5 While preparing the draft EO for the operator of VH-NIN, Thomson Design was shown the log book for an engine to which the modification was intended. When asked for a copy of the engine name plate details the following was supplied:
T(X)(*) A W-62(X)P No.K16344225
CEP (X)R 16 PEMOHT i ii iii iv v
A ata
Where (X) is a reversed capital ‘N’ and (*) is a figure like a flat topped N. The C of R Holder was asked if this was a Polish or Russian engine and assured me it was Polish. I could not read the log book to confirm this, or tell whether it was in Polish or Russian. A Russian acquaintance notes the ‘W’ after the A in the type number is actually a Cyrillic letter which translates as ‘Sh’ in Russian or ‘Sz’ in Polish. The type then becomes ASh-62, the Russian notation for this model engine, or Asz-62…...-16. The above verifies that the engine was the model intended to be modified.
2.6 A short time later, while talking to Peter Snook of Aeronautique Australia he mentioned that he was to perform maintenance on the fleet of Dromaders which included VH-NIN. I warned him that –16 engines could not be fitted in place of –18M’s without a CAR 35 approval (Engineering Order). He replied that he was already aware of this.
2.7 On 23/4/2001 Edge Aviation (Australia) approved an Engineering Order (No. 010402) for Rudy’s Aero Engines titled ‘Conversion of ASZ-62IR-16 to ASZ-62IR-M18 configuration’..
2.8 On the same day, Rudy’s Aero Engines raised a log book statement for engine serial number K16344225 beginning: ‘To convert ASZ-62IR-16 engine to ASZ-62IR-M18 the following was done …’.. The customer is listed as the C of R Holder for VH-NIN.
2.9 Engine K16344225 was supplied by the C of R Holder of VH-NIN to Aeronautique, together with copies of the Engineering Order approving the engine’s modification to an ASz-612R-M18 (sic) and the log book statement verifying that this modification had been incorporated. The operator’s instructions were that the engine was to be fitted to VH-NIN.
2.10Aeronautique then performed the following actions:
(a)Installed the engine in the aircraft.
(b)Raised an Australian log book for the engine and made a certified entry stating:
(i)The previous history of the engine was contained in the original log books.
(ii)That the engine was being installed under the Edge EO for the model change.
(iii)That Aeronautique had installed the engine in VH-NIN.
I was advised by Aeronautique that CASA has alleged that the engine Serial Number K16344225 fitted to VH-NIN, should not have been fitted by Mr Snook. At the request of Mr Snook I have considered the facts and examined the documentation and have come to the conclusion that Mr Snook was entitled to fit the engine to VH-NIN.
In providing my reasons for this conclusion it will be of assistance to the Tribunal if I provide relevant background information and then refer the actions of Mr Snook to the relevant sections of the CAR and the CAAP upon which he is entitled to rely in the fitting of the said engine to VH-NIN.
3.Background
3.1 In addition to its country of origin Polish certification, the PZL M18 Dromader aircraft has a Type Certificate issued in the USA, on a reciprocal agreement recognising each other’s certification process.
3.2 The Dromader US Type Certificate Data Sheet (TCDS) No. A47EU lists only one engine as being approved for installation, the Polish manufactured PZL-KALISZ ASz-62IR-M18.
3.3 The letters WSK are often included (but not on TCDS A47EU) when defining this engine, ‘PZL-KALISZ’ being a trading name of the entity ‘Wytwornia Sprzetu Komunikacyjnego’.
3.4 This engine is but one modern license built version of the American Wright Cyclone 1820 engine, dating from the 1930s.. Variants of the engine have been widely manufactured for over sixty years in America, Russia, Poland and China. Differing certification standards and model differences restrict the interchangeability of parts and engines.
3.5 The WSK PZL-KALISZ ASz-62IR-M18 engine also has its own USA TCDS, No.E1ONE, under the same reciprocal agreement.
3.6 For use in the USA and Australia, each aircraft and engine must be specifically defined as complying with the US type certificates, as aircraft and engines manufactured for other markets may not need or have this distinction. The engine in question, S/N K16344225 is of Polish manufacture but is not marked on its nameplate as being covered by the US TCDS. The engine was one of a batch manufactured for use in Russia and the name plate is in the Russian language.
3.7 PZL-KALISZ also manufacture another model of this engine, the WSK PZL-KALISZ ASz-62IR-16, which also has US certification, by being included on TCDS E1ONE. The –16 is the normal model, suited to a wide range of aircraft, while the –M18 is a specialised agricultural aircraft version, developed for the Dromader, hence the M18 in its designation.
4.Summary of Issues:
In anticipation of issues that may arise in these proceedings, I have formulated a number of statements and responses to same to assist the Tribunal:
4.1 Statement: ‘Although the engine Type and Model are acceptable in Australia, this engine was of a batch manufactured for use in the Eastern Bloc and was not supplied as compliant with the USA Federal Aeronautics Administration approval. It should therefore not have been installed in an Australian aircraft’.
4.2 My Response: There is no general process by which this fact should become known to Aeronautique. CASA themselves had to carry out considerable research to resolve this and it is unreasonable to expect Aeronautique to have been aware of this distinction.
4.3 Statement: ‘The modification of the engine from one model to another, to make it suitable for the intended aircraft was completely inadequate and the final engine did not comply with the configuration required in this aircraft.’
4.4 My Response: The engine was modified by Rudy’s Aero Engines Pty Ltd and Edge Aviation (Aust.), both organizations holding approvals pursuant to the CAR in respect of this engine and in accordance with an approved Engineering Order. Edge Aviation (Aust.) holds a CAR 35 delegation to approve this modification and Rudy’s Aero Engines Pty Ltd holds a CAR 30 approval to carry it out.
4.4.1 Subsequent to the modification a log book entry was made by Rudy’s Aero Engines Pty Ltd into the engine log book on , (sic) for aircraft VH-NIN in respect of engine Serial Number K16344225 which states ‘to convert ASZ-62IR-16 engine to ASZ-62IR-M18 the following was done …’.
4.4.2 In my expert opinion Mr Snook was entitled to rely upon this log book entry in accepting that the engine had been modified to a –M18 engine and that it could be fitted to VH-NIN.
4.5 Statement: ‘Aeronautique fitted the engine without sighting the Authorised Release Certificates required by the regulations for both the original engine importation and the modification from one model to another’.
4.6 My Response: An ARC was not necessary in this case as alternative evidence acceptable under the Rules was available to Mr Snook. The CAR and its explanatory Civil Aviation Advisory Publication (CAAP) are contradictory, however, Mr Snook is entitled to rely on the CAAP and Industry Practice which is that a log book statement is sufficient. The status quo is that a log book statement is more often than not the only documentation supplied. It is unreasonable to consider Aeronautique should have expected a variance from normal practice in this case.
4.7 Statement: ‘Fitting an aircraft component to VH-NIN which has had maintenance carried out on it without an accompanying Authorised Release Certificate’
4.8 My Response: I refer to and repeat the contention of 4.6 above and say further:
4.8.1 Civil Aviation Advisory Publication (CAAP) 42W-1(2) sets out the documentation to be expected to accompany an aircraft component. An Authorised Release Certificate is one of the methods given. An alternative given for ‘used aeronautical products’ is ‘Evidence identifying the product and providing details of service life and maintenance history’. However, the regulation which the CAAP is expanding on, CAR 42W(4)(d) states that, for any case where a component is supplied by another person, it is to be accompanied by an ARC. This conflicts with the CAAP 42W-1(2) where alternatives to the ARC are given as detailed above.
4.8.2 A survey of three engine overhaul shops in WA, showed that, in the time period being discussed, none considered an ARC mandatory or necessary for an engine after work or overhaul. The great majority of engines were, and still are, being supplied with a log book entry only, to describe the work or overhaul. The grounds for this decision is that it is compliant with the second alternative given in CAAP 42W-1(2) and as a log book entry is required anyway, an ARC would be needless duplication and introduce the possibility of contradictory dates etc, as the ARC might not be raised on the same day as the log book entry. If CASA’s opinion of the regulations differed, they should have been telling the issuing organizations then, rather than now asking a recipient why it did not request one at that time.
4.8.3 For the work performed by Rudy’s Aero Engines Pty Ltd a log book entry was provided. In consideration of the interpretation of the CAAP, and current Industry Practice, whereby the provision of log book entries is sufficient evidence of maintenance conducted by an organization to which CAR 35 relates, it is both unnecessary and unreasonable for CASA to say that Aeronautique should have sighted an ARC as well as the log book entry.
4.9 Statement: ‘There is a requirement to provide details of service life and maintenance history’
4.10 My Response: The log book does contain the required data, in the foreign language. The C of R Holder and Aeronautique used an interpreter to verify the significant details, sufficient to show that the engine had certifications for the most recent maintenance being a full overhaul. On this basis, Aeronautique raised an Australian Log Book. When the availability of the interpreter is included in the process, the requirements of the CAAP can be said to have been met, although not as definitively as any of the parties would have desired.
5.Conclusion
5.1 The Rudy’s Aero Services (sic) Pty Ltd log book entry is a simple statement that the engine has been modified.
5.2 The Edge Aviation Engineering Order No. 010402 approves changing a –16 into a –M18 and therefore the correct engine to fit in a Dromader. Aeronautique were in no position to question the veracity of this document. It was properly issued and approved by a CASA delegate under CAR 35.
5.3 Having thirty four years as a LAME and twelve years raising CAR 35 engineering orders, I can say that given the wording of the Edge EO, and the log book entry contained in the engine log book of VH-NIN, a LAME could only draw the conclusion that the modification and use of the engine in the Dromader had been approved. And that it was reasonable in all of the circumstances for Mr Snook to fit the engine to VH-NIN.”
38. In his examination-in-chief Mr Thomson said that Ian Dunn had approached him and requested him to prepare an Engineering Order for the conversion of a “–16” engine so that it could be fitted in aircraft VH-NIN. He said that he asked to see, inter alia, the engine log book and he subsequently viewed it with Ian Dunn and a person who was able to read the Russian or Polish language in which it was written. He said that that person, who he knew worked as an aircraft maintenance engineer, verified that the engine had been manufactured in Poland and that its most recent maintenance had been a full overhaul. He therefore understood it to be a “zero time engine”.. He subsequently prepared a draft Engineering Order stating the requirements for the conversion of the engine to a “–M18” and, after obtaining informal approval from a CASA officer, he showed it to Ian Dunn who did not accept it because he thought that most of the specified requirements were unnecessary. In the result, Mr Thomson’s draft Engineering Order was not proceeded with and the relevant Engineering Order was ultimately prepared by Edge Aviation.
39. Most of the remainder of Mr Thomson’s evidence (including his cross-examination) related to his interpretation and understanding of regs 35 and 42W of the Regulations (in particular, the provisions in reg 42W dealing with an “authorised release certificate”) and CASA “Civil Aviation Advisory Publication October 2000” entitled “CAAP 42W-1(1) Documents for the supply of aeronautical products”. These are matters about which the Tribunal is required to form its own opinion and it does not, with respect, derive significant assistance for this purpose from Mr Thomson’s evidence regarding his own opinion regarding those matters. Likewise, those parts of Mr Thomson’s witness statement in which opinions and assertions in relation to those matters are expressed – in particular, paras 4.6-4.8 thereof – have been given no significant weight by the Tribunal.
The Evidence of Clive Phillips
40. Mr Phillips said that he is an aircraft accident investigator, a licensed aircraft maintenance engineer, and was the Manager of the Melbourne field office of the Bureau of Air Safety until 1999 when he retired from that position. He confirmed that he had prepared and signed a witness statement dated 19 July 2002 and he verified the contents of that statement (Exhibit A4). Those contents are as follows:
“…
1. Introduction
1.1I am requested by the Applicant, Mr. Snook, to provide evidence in respect of his application for a review of the decision of the Civil Aviation Safety Authority (‘CASA’) to cancel his Certificate of Approval on 26 February 2002. I understand that the issue central to the decision by CASA to cancel the Certificate of Approval is their allegation that Mr. Snook fitted an unapproved engine to a Dromader aircraft VH-NIN.
1.2I have read the material provided to me by Mr. Snook’s Solicitors, which includes the Section 37 T documents, the witness statement of Mr. Walter Thomson and other relevant material central to these proceedings
2. Summary of Relevant Issues and Conclusion
The only issue central to the decision to cancel the Certificate of Approval of Aeronautique is the fitment of the engine and the allegation that Mr. Snook contravened the Civil Aviation Regulations in the course of his fitting the engine to VH-NIN. I have examined the documents and relevant Civil Aviation Regulations and I have concluded that Mr. Snook was entitled to rely upon the documentation before him in fitting the engine and that it was unreasonable for CASA in the circumstances to allege that he had breached the provisions of the CAR.
To aid in the clarity of my reasoning I refer the Tribunal to the Section 37 documents and in particular to the document starting at folio #5 comprising a letter from CASA to Snook dated 26 February 2002. That letter at paragraph 3 sets out the CASA case in regard to the fitting of an alleged unapproved engine to VH-NIN.
The reasons for my conclusion are set out below.
2.1At folio 115 of the Section 37 documents is a letter dated December 7th, 2000 from Rudy’s Aero Engines formalising Rudy’s advice to Snook that Rudy’s can supply technical data and advice re ASZ 621R M-18 (sic) engines.
2.2At folio 116 is a letter dated March 16, 2001 from Rudy’s to CASA seeking clarification of the methods by which the –16 engine can be modified to a –18.
2.3At folio 120 is a letter dated 5 May 2001 from CASA to Rudy’s giving clarification to those queries. This letter advises that ‘The engines may be converted in the field (ie at Rudy’s – CP) for the purpose of being installed in aircraft other than originally intended, under a CAR35 or STC Approval process.
2.4At folio 118 is Edge Aviation Engineering Order (EO) EA 010402 dated 23 April 2001 authorising the conversion of –16 to –18. The EO was approved pursuant to CAR 35 by R MacGillivray.
2.5At folio 117 is a document from Rudy’s which is a Log Book Entry relating to engine s/n K16344225 converted from a –16 to a –18 by Rudy’s . This Log Book Entry is dated 23/4/2001, the same date as the Edge Aviation EO.
2.6At folio 7, at para 16 CASA advise that on or about 24 April 2001 the engine was installed in VH-NIN by Snook.
2.7We comment that it would appear that Rudy’s most probably obtained verbal advice from CASA that the modifications could be formalised by a CAR 35 certification, and that advice was confirmed in the letter dated 5 May 2001. By that time the engine was already installed and operating in VH-NIN.
2.8That CASA letter would not have been available to Snook, and nor was it required to be. Snook required to have a certification that the work was carried out, and this is conveyed by the Log Book Entry. The Log Book Entry quite properly references the CAR 35 EO of Edge Aviation as the basis for the modifications.
2.9The fact that the engine did not have an Australian CASA log book was irrelevant to Rudy’s because it is quite normal for an overhaul agency to make certifications in log books for the work that they have carried out, and, if the log book is not readily available, they supply a Log Book Entry detailing that work. This is a normal procedure and is commonly used, and accepted by CASA.
2.10CASA at Folio 6, paragraph 6 state that the Type Certificate Data Sheet Number E10NE clearly shows that EO 010402 does not in fact actually change the engine model to a –18. This is in the CASA letter dated 26 February 2002.
We note that at Folio 119 is a copy of the Edge Aviation EO showing that 5 December 2001 the EO was changed to issue 2 and to say that the modification does not convert the engine to –18, and that a specific STC approval was required to fit the engine into a specific aircraft.
2.11It would appear that some time after the engine was installed in the aircraft somebody changed their mind as to the requirements as detailed in the CASA letter at folio 120. That letter quite specifically states ‘These engines may be converted … under a CAR35 or STC Approval process’. The italics and underline of ‘or’ are mine. It appears to be unreasonable that CASA can later withdraw Snook’s Certificate of Approval to conduct maintenance on the basis that Snook fitted an ‘unapproved engine’ when at the time of fitting (April 2001) the CASA advice (formalised 5 May 2001) was that a CAR35 approval process was acceptable.
2.12CASA at folio 6, paragraph 6 intimates that Snook should have known of the Type Certificate Data Sheet (TCDS) requirements. Snook had a CAR35 certification from Edge as evidence that the modifications were approved, and a log book entry from Rudy’s that certified that they had been carried out. A basic tenet of the aviation certification system is that a person can rely on a certification and does not have to ‘look behind’ that certification and check that it was made properly.
2.13CASA gives primacy to this basic tenet when, in relation to maintenance releases, CAR 43(8) specifically states ‘that the existence of an earlier maintenance release may be accepted as proof that all maintenance required to be carried out before the date of that maintenance release has been carried out’ (sic). It is unreasonable to assume that one can rely on the certification on a maintenance release, but not on the certification of a CAR35 signatory, that signatory being a delegation granted by CASA itself.
2.14The person to assess the TCDS was Edge, indeed it is my view that Edge would not have proceeded with the CAR 35 approval process without having reference to the TCDS for the engine. I do not see any evidence in the documentation that CASA have pursued EDGE for an answer as to why the CAR35 approval did not meet the TCDS requirements they say Snook did not comply with.
2.15 I query the basis under which CASA accepted Dunn’s advice that he did not have an Export C of A for the subject engine, against Snook’s advice that Dunn had such a document, and had presented it to Snook as part of the data package received with the engine. It is quite normal, and expected, that engines and aircraft being imported into Australia will have an Export C of A from the country of export and all LAME’s involved with newly imported aircraft and engines expect to see such a document as part of the data package. It could be that CASA may have been better to have said ‘that they could not determine whether an Export C of A accompanied the engine’ rather than to accept Dunn’s statement over Snook’s, without any other evidence being available, and then use the lack of evidence of an Export C of A as a further basis for cancelling the certificate of approval.
2.16I note at #folio 188 that CASA states that ‘Despite the breaches under the Certificate of Approval, Airworthiness staff are of the opinion that Mr. Snook is fundamentally a sound LAME….’.. I have not met Mr. Snook; however, if I accept the opinion of CASA that he is a sound LAME, in light of my conclusion that Mr. Snook has not breached the provision of the CAR in the fitment of the engine to VH-NIN, I must also conclude that the decision by CASA to cancel the Certificate of Approval held by Mr. Snook in the circumstances is unreasonable and flies in the face of accepted Industry Practice.”
41. In his examination-in-chief Mr Phillips said that it was his understanding of civil aviation industry practice that an engine modification is not normally accompanied by an authorised release certificate but is instead certified in the engine log book which is regarded as the equivalent of an authorised release certificate. He also said that a licensed aircraft maintenance engineer would “naturally” rely on an Engineering Order issued by a CAR35 authorised person and a certified log book entry in relation to a particular engine.
63. Paragraph (c) of reg 42W(4) applies if the relevant aircraft component to be installed in an aircraft has been modified, and it prescribes (in subparas (i) – (iv)) four alternative requirements, at least one of which must be satisfied. In the present case, para (c) of reg 42W(4) was applicable because engine serial number K16344225 which was to be installed in aircraft VH-NIN had been modified by Rudy’s Aero Engines Pty Ltd on 23 April 2001 as recorded in the relevant log book entry of that date (T36, p117). That being the case, at least one of the requirements prescribed in subparas (i) – (iv) had to be fulfilled. In the present case, it is common ground that the requirement prescribed by subpara (i) had been fulfilled – namely, that the relevant modification had been carried out by Rudy’s Aero Engines Pty Ltd in accordance with a design that had been approved under reg 35 by Edge Aviation (Aust), as evidenced in Engineering Order No EA010402 dated 23 April 2001 (T36, p118). Accordingly, the Tribunal finds that para (c) of reg 42W(4) was complied with by the applicant in this case.
64. Paragraph (d) of reg 42W(4) is, in terms, applicable provided that “subregulation (5) applies to the component, and the component was supplied by another person”. It is common ground that the relevant component, namely, engine serial number K16344225, was supplied to the applicant by another person, although the parties were uncertain as to the identity of the “supplier” for the purposes of para (d). Was it the ultimate supplier of the engine to the applicant, namely, Mr Dunn; or was it the person from whom Mr Dunn acquired the engine? Because it is clear that the engine was supplied by “another person” it is not necessary for the Tribunal to determine the identity of that other person. The Tribunal is, however, of opinion that the phrases “supplied by another person” and “the supplier of the component” in para (d) refer to the person who supplies the relevant component directly to the person who is to install that component in the relevant aircraft – in the present case, Mr Dunn. The other prerequisite for the application of para (d) of reg 42W(4) in this case is that subreg (5) was applicable to engine serial number K16344225. That subregulation, in terms, applies to:
“(a)an aircraft component manufactured to approved data by a manufacturer that holds an approval from CASA or an NAA to do so; or
(b)an aircraft component that has had maintenance carried out on it.”
It was common ground that the abovementioned engine had “had maintenance carried out on it”, namely, a complete overhaul outside Australia on 18 June 1990 (as recorded in the original engine log book (Exhibit R1)), and the modification that was carried out in Australia by Rudy’s Aero Engines Pty Ltd on 23 April 2001 (as recorded in the log book entry of that date raised by Rudy's Aero Engines Pty Ltd (T36, p117)). Accordingly, the Tribunal finds that para (b) of subreg (5) is satisfied in this case. That finding makes it unnecessary for the Tribunal to determine whether para (a) of subreg (5) is also satisfied in this case, because paras (a) and (b) are expressed as alternatives. Subregulation (5) was, therefore, applicable to engine serial number K16344225. The proviso in para (d) of reg 42W(4) being satisfied, the requirement prescribed by that paragraph had to be fulfilled in this case, namely, that the supplier of the abovementioned engine had “supplied an authorised release certificate with it and for it”.
65. The expression “authorised release certificate” is exhaustively defined in Pt 1 of the “Dictionary” in the Regulations to mean “a document that complies with regulation 42WA of CAR 1988”.. Regulation 42WA(1) sets out, in paras (a) – (h), the “requirements for an authorised release certificate for an aircraft component”. The Tribunal accepts the respondent’s submission that an authorised release certificate is a document which is different, both in substance and as regards the purpose which it is intended to serve, from an aircraft log book or, relevantly, a log book entry relating to an aircraft engine. Whereas a log book entry relating to an aircraft engine comprises a record and certification of maintenance carried out on the engine, a record of the date of installation or removal of the engine, and a record of the date and “aircraft time-in-service” of the installation or removal of the engine (see Civil Aviation Orders Pt 100, section 100.5, para 3.2, subparas (e) and (f)), an authorised release certificate is a document which relates chiefly to the supply of an aircraft component (including an engine) and comprises information establishing the authenticity, traceability and serviceability of the component for airworthiness control before it is installed in an aircraft (see CAAP 42W-1(1), paras 2.1, 2.2). CAAP 42W-1(1) identifies an authorised release certificate as “CASA Form 917”, but indicates that an “equivalent document” issued by, or with the authority of, the NAA of a country other than Australia (as listed in Appendix 1) is acceptable. In the case of specified European countries (including Poland – the country of manufacture of engine serial number K16344225), the equivalent document is identified in Appendix 1 as “JAA Form One”.
66. Having regard to the abovementioned considerations, the Tribunal does not accept the applicant’s submission that the loose leaf log book entry regarding engine serial number K16344225, raised by Rudy’s Aero Engines Pty Ltd on 23 April 2001 (T36, p117), complies with the requirements prescribed by reg 42WA(1) of the Regulations and constitutes an authorised release certificate within the meaning, and for the purposes, of para (d) of reg 42W(4) of the Regulations. Accordingly, the Tribunal finds that an authorised release certificate, within the meaning of the Regulations, had not been supplied to the applicant with, and for, engine serial number K16344225 prior to the time when that engine was installed by the applicant in aircraft VH-NIN on 24 April 2001 or at any material time. It follows that when the applicant installed that engine in that aircraft, he thereby contravened reg 42W of the Regulations, and the Tribunal so finds.
67. By reason of the Tribunal’s finding that the applicant contravened reg 42W of the Regulations, the discretionary power, conferred by reg 269(1) of the Regulations, to cancel the applicant’s Certificate of Approval (Number 5156, Issue 02) is enlivened: see para (a) of reg 269(1). Whether that discretionary power should be exercised adversely to the applicant is the ultimate matter for the Tribunal’s determination and will be considered later in these Reasons.
Is the applicant “not a fit and proper person to have the responsibilities and exercise and perform the functions and duties of a holder of” a certificate of approval?
68. The expression “fit and proper person”, which commonly appears in licensing and other forms of regulatory legislation, must be interpreted having regard to the particular legislative context in which it appears: Maxwell v Dixon [1965] WAR 167 at 169; Re Taylor and Department of Transport (1978) 1 ALD 312 at 321; Re Griffiths and Civil Aviation Authority (1994) 34 ALD 554 at 559. In the present case the question for the Tribunal to determine is not merely whether the applicant is, or is not, a fit and proper person; rather, it is whether the applicant is, or is not, “a fit and proper person to have the responsibilities and exercise and perform the functions and duties of a holder of” a certificate – more specifically, a certificate of approval granted by CASA under reg 30 of the Regulations. In determining that question, it is most appropriate for the Tribunal to have regard to the applicant’s conduct as regards fulfilling the “responsibilities”, exercising the “functions” and performing the “duties”, as set out in the Regulations and the Civil Aviation Orders, associated with Certificate of Approval Number 5156 during the period since that certificate was first grated to him on 12 July 1996 (see T30, p 85). It is, however, also appropriate, in the Tribunal’s opinion, for it to have regard to the applicant’s conduct as regards other similar responsibilities, functions and duties which were applicable to him under the Regulations: Re Griffiths (above) at 560.
69. Accordingly, the Tribunal will, for the purpose of determining whether or not the applicant is “a fit and proper person” within the meaning, and for the purposes, of para (d) of reg 269(1) of the Regulations, have regard to, not only the applicant’s contravention of reg 42W on 24 April 2001 (as found by the Tribunal in paragraph 66 above), but also:
·the applicant’s “compliance history” in relation to the Regulations since 1991 (see paragraphs 5-11 above, and paras 2-17 of Richard Koch’s witness statement dated 24 July 2002 (Exhibit R4) set out in paragraph 44 above); and
·the propeller incident on 18 April 2002.
70. As regards the circumstances leading to the suspension of the applicant’s aircraft maintenance engineer licence on 26 May 1993 and 1 February 1995 (see paras 2 and 4 of Mr Koch’s abovementioned witness statement), the Tribunal acknowledges that those circumstances involved serious lapses of professional engineering performance on the part of the applicant, which warranted the suspension of his licence. The Tribunal notes, however, that on each occasion the applicant’s licence was reinstated – on 11 August 1993 and on 15 September 1995, respectively – by the (former) Civil Aviation Authority, and that there is no record of any adverse action having subsequently been taken in relation to that licence either by that Authority or by its successor, CASA.
71. In November 1999 CASA issued 2 Non-compliance Notices to the applicant in respect of certain deficiencies in his system of quality control, and satisfactory corrective action was taken by the applicant in November/December 1999. In October 2000 CASA issued 7 “Request for Corrective Action” notices to the applicant in respect of specified deficiencies in his system of quality control, and satisfactory corrective action was again quickly taken by the applicant. In November 2001 CASA issued an Infringement Notice to the applicant on the ground that in November 2000 he had issued maintenance releases for 3 “Dromader” aircraft having a maximum take-off weight exceeding 3,500 kg, thereby contravening a condition of his certificate of approval. The applicant subsequently acknowledged that contravention and, in para 32(f) of his affidavit of 20 March 2002 (Exhibit A5), he explained that it was due to an honest mistake on his part. It is interesting to note that, in the meantime on 17 August 2001, CASA, following a request from the applicant for a change in the terms of his certificate of approval, had granted to him Certificate of Approval Number 5156 Issue 02 (the cancellation of which is the subject of the present application for review) which authorised him to carry out maintenance activities on, inter alia, “Dromader” aircraft. The Tribunal does not regard the circumstances set out above in this paragraph as involving particularly serious infringements of the Regulations. While it might be said that they demonstrate a lack of attention to detail on the part of the applicant in the conduct of his aircraft maintenance business, it cannot reasonably said that they are indicative of a wilful, reckless, or even a negligent, disregard of the Regulations such as might endanger the safety of aviation or support a finding that he is not a fit and proper person to carry out aircraft maintenance activities.
72. The relevant actions of the applicant as regards the propeller incident fall into two categories: first, his actions in relation to the removal of the propeller from aircraft VH-AUW, and, secondly, his actions in relation to the raising of log book entries in respect of that propeller.
73. The applicant and Phillip Little gave evidence, both in writing and orally, regarding the circumstances surrounding the removal of the propeller by the applicant on 18 April 2002 (see paras 28, 32-26, and 48-49 above), but there was some discrepancy between their evidence regarding, in particular, the colour and nature of the fluid that leaked from the propeller after its removal, and the words spoken by the applicant in response to Mr Little’s commenting upon that fluid. The Tribunal, while not regarding that discrepancy as especially significant, is inclined to accept the applicant’s version of those events. The Tribunal accepts the applicant’s evidence that, given the documented service and maintenance history of that propeller, he had no reason to be concerned about its condition and that he believed that the leaking fluid was merely oil or inhibitor fluid and not red indicator dye. In the Tribunal’s opinion the applicant’s actions in relation to the removal of the propeller from aircraft VH-AUW on 18 April 2002 were reasonable and not professionally negligent.
74. The applicant’s actions in relation to the raising of log book entries in respect of the abovementioned propeller, and his evidence in relation thereto, are, however, of some concern to the Tribunal. His evidence in relation to, in particular, the log book entry regarding installation of the propeller, in which the initials “AUW” were struck out and the initials “ZAP” written alongside, was, in the Tribunal’s opinion, unsatisfactory. In his affidavit of 20 June 2002 (Exhibit A6) the applicant denied (in paras 23 and 26) that he had made that alteration, but in his oral evidence he acknowledged that he must have done so (as confirmed by Mr Gregory’s expert evidence – see paragraphs 52-53 above and Exhibit R2) but said that he had no recollection of having done so and was at a loss to explain why he had done so. The applicant did, however, confirm that he subsequently struck out the initials “ZAP” and “rewrote” the initials “AUW” in that log book entry when he eventually refitted the propeller on aircraft VH-AUW on 17 May 2002 at Mr Little’s request (see paras 27-28 of his affidavit of 20 June 2002).
75. Although the applicant was unable to explain his abovementioned alteration of the propeller log book entry, the Tribunal, albeit with some diffidence, ventures the following explanation (as inferred from the whole of the applicant’s evidence and the other material before it):
·on 18 April 2002, when the applicant removed the propeller from aircraft VH-AUW at Mr Little’s request, that aircraft was already undergoing maintenance by the applicant and others for the issue of a Certificate of Airworthiness;
·the applicant was informed by Mr Little that that propeller would be used for a short period on aircraft VH-ZAP and he expected that he would then refit it on aircraft VH-AUW;
·the applicant had prematurely raised and signed a log book entry (which was left undated) regarding the (future) re-installation or refitting of the propeller on aircraft VH-AUW;
·on becoming aware that that propeller was intended, in the meantime, to be installed in aircraft VH-ZAP, the applicant, in anticipation of that installation, deleted the initials “AUW” and substituted the initials “ZAP” in that log book entry, but omitted to delete his existing signature;
·on 17 May 2002, when that propeller was returned to the applicant by Mr Little for re-installation or refitting on aircraft VH-AUW, the applicant did not raise a new log book entry but, instead, simply amended the existing signed log book entry by deleting the initials “ZAP” and rewriting the initials “AUW”, initialled that amendment and inserted the date “17.5.02”.
76. The Tribunal regards the applicant’s actions in relation to raising the abovementioned log book entry as irregular and not in accordance with best practice on the part of a licensed aircraft maintenance engineer. The Tribunal is not, however, prepared to make a finding that those actions constituted a breach of the Regulations or are indicative of the applicant’s not being a fit and proper person to have the responsibilities and exercise and perform the functions and duties of a holder of a certificate of approval under the Regulations.
77. The Tribunal also notes an assertion made by Richard Koch in paras 8-10 of his affidavit of 28 May 2002 (Exhibit R3) that the applicant “certified the propeller as being installed into aircraft VH-ZAP on 18 April 2002, knowing this to be false …” and thereby contravened regs 42ZP and 283 of the Regulations (see paragraph 45 above). The Tribunal does not accept Mr Koch’s assertion. In the Tribunal’s opinion, the raising of the relevant log book entry dated 18 April 2002 by the applicant, on which Mr Koch’s assertion appears to be based, was satisfactorily explained by the applicant in paras 16-18 of his affidavit of 20 June 2002 (Exhibit A6) (see paragraph 28 above). As regards that log book entry, the Tribunal notes that the last line of that entry reads: “1. FITTED PROP”, not “I FITTED PROP”. Thus, that entry refers merely to a “fitted prop”; it does not in terms refer to the “fitting” of a propeller by the applicant. The Tribunal finds that the raising of that particular log book entry by the applicant did not involve a contravention of either reg 42ZP or reg 283 of the Regulations.
78. Finally, as regards the applicant’s contravention of reg 42W of the Regulations (as found by the Tribunal – see paragraphs 62-66 above), the Tribunal, likewise, does not regard that contravention as involving a wilful, reckless, or even a negligent, disregard of the Regulations such as might endanger the safety of aviation or indicate that the applicant is not a fit and proper person to have the responsibilities and exercise and perform the functions and duties of a holder of a certificate of approval under the Regulations. Rather, that contravention resulted, in the Tribunal’s opinion, from an honest misunderstanding by the applicant of the requirements prescribed by subreg (4) of reg 42W – in particular, the requirement prescribed by para (d) of reg 42W(4) that an “authorised release certificate”, which complies with reg 42WA(1), have been supplied with and for an aircraft component before that component is installed in an aircraft. The applicant’s misunderstanding was, as previously explained, that he was entitled, in accordance with the Regulations, to install engine serial number K16344225 in aircraft VH-NIN on 24 April 2001 in reliance on the log book entry, dated 23 April 2001, raised by Rudy’s Aero Engines Pty Ltd regarding the conversion of that engine from an ASz-62IR-16 engine to an ASz-62IR-M18 engine, and the Engineering Order approved, pursuant to reg 35 of the Regulations, by Edge Aviation (Aust) on 23 April 2001 in accordance with which the engine conversion was carried out by Rudy’s Aero Engines Pty Ltd, together with the original engine log book which, although in a foreign language which he could not understand, stated, according to an aircraft engineer who could apparently read it, that the engine had been overhauled on 18 June 1990 and had had no time in service since then – in other words, it was a “zero hours” engine.
79. The Tribunal heard evidence from Walter Thomson and Clive Phillips, both of whom have had considerable experience in the aviation industry in Australia, to the effect that the applicant’s installing of the engine in reliance on the abovementioned documentation was in accordance with their understanding of customary aviation industry practice in Australia, and was reasonable in the circumstances. Although the Tribunal places no weight on the opinions of Messrs Thomson and Phillips regarding the interpretation of reg 42W(4) and CAAP 42W-1(1) and the legality of the applicant’s action in installing the abovementioned engine in aircraft VH-NIN on 24 April 2001, it does, for the purposes of assessing the reasonableness of that action, place some weight on their opinions, based on their knowledge and experience, as to what is customary or reasonable aviation industry practice.
80. Accordingly, the Tribunal finds that the applicant’s mistaken belief that, when he installed engine serial number K16344225 in aircraft VH-NIN on 24 April 2001, he was entitled to do so in reliance on the documentation referred to in paragraph 78 above, was a reasonable one in the circumstances. The Tribunal also finds that, although the applicant’s action of installing that engine in that aircraft on the basis of that honest and reasonable mistaken belief involved a contravention of reg 42W(4) of the Regulations, that action does not indicate that the applicant is not a fit and proper person to have the responsibilities and exercise and perform the functions and duties of a holder of a certificate of approval under the Regulations.
81. The overall finding of the Tribunal, having regard to the matters specified in paragraph 69 above and the discussion of those matters in paragraphs 70-80 above, is that those matters, individually and collectively, do not establish that the applicant is “not a fit and proper person to have the responsibilities and exercise and perform the functions and duties of a holder of” a certificate of approval, within the meaning, and for the purposes, of para (d) of reg 269(1) of the Regulations. The ground specified in that paragraph, on the basis of which a certificate of approval may be cancelled under reg 269(1), does not therefore exist in this case.
Should the applicant’s Certificate of Approval Number 5156 Issue 02 be cancelled under reg 269(1) of the Regulations?
82. The Tribunal having previously found that the applicant contravened reg 42W(4) when he installed engine serial number K16344225 in aircraft VH-NIN on 24 April 2001, the ground specified in para (a) of reg 269(1), on the basis of which the applicant’s Certificate of Approval Number 5156 Issue 02 may be cancelled under reg 269(1), does exist in this case. The ultimate matter for the Tribunal’s determination, therefore, is whether, having regard to the circumstances of this case, that certificate of approval should, in exercise of the discretionary power conferred by reg 269(1), be cancelled.
83. As the Tribunal has previously indicated (see paragraphs 78-80 above), the applicant’s contravention of reg 42W(4) was not, in its opinion, intentional, reckless or even negligent, but rather was the result of an honest and reasonable mistaken belief regarding the requirements of that subregulation. Nor is the Tribunal satisfied on the material before it that aviation safety was compromised by that particular contravention of reg 42W(4), or that the applicant is not a fit and proper person to have the responsibilities and exercise and perform the functions and duties that are applicable to him under the Regulations as the holder of Certificate of Approval Number 5156 Issue 02. In these circumstances it would, in the Tribunal’s opinion, be inappropriate to cancel that Certificate of Approval and thereby deprive the applicant of his existing aircraft engineering business and livelihood that are dependent on his holding that Certificate.
84. Having said that, however, the Tribunal observes that the applicant’s record of compliance with the Regulations has, since the early 1990s, been less than exemplary and is certainly capable of improvement. It may be that, as suggested by Mr Berman (for the applicant), an appropriate way of improving the applicant’s system of quality control and ensuring his compliance with the Regulations is for CASA to conduct a regular 6-monthly audit of his business operations. That is, of course, a matter for CASA’s judgment having regard to, inter alia, its priorities and resources.
Decision
85. For the above reasons the Tribunal sets aside the decision under review and, in substitution therefor, decides that the applicant’s Certificate of Approval Number 5156 Issue 02 should not be cancelled.
I certify that the 85 preceding paragraphs are a true copy of the reasons for the decision herein of Associate Professor S D Hotop, Deputy President and Air Marshal I B Gration, Member
Signed: .................(sgd V Wong)...............................
AssociateDate/s of Hearing 31 July, 1-2 August 2002
Date of Decision 27 March 2003
Counsel for the Applicant Mr P Berman
Solicitor for the Applicant Grundy Maitland & Co
Counsel for the Respondent Mr B ShieldsSolicitor for the Respondent Mr A Anastasi, Office of Legal Counsel, CASA
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