Robert Wallace and Civil Aviation Safety Authority
[2015] AATA 365
•27 May 2015
[2015] AATA 365
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2014/4617
Re
Robert Wallace
APPLICANT
And
Civil Aviation Safety Authority
RESPONDENT
DECISION
Tribunal Egon Fice, Senior Member
Date 27 May 2015 Place Melbourne The decision under review is affirmed.
..........................[sgd]..............................................
Egon Fice, Senior Member
Catchwords
AVIATION – Aircraft maintenance – Certificate of Approval to conduct maintenance on class B aircraft – Breach of regulations – Series of breaches – Cancellation of Certificate of Approval – Breach of conditions of stay order – Decision under review affirmed
Legislation
Administrative Appeals Tribunal Act 1975 (Cth) s 41
Civil Aviation Act 1988 (Cth) ss 9A, 31
Civil Aviation Regulations 1988 (Cth) regs 30, 42V, 42ZC, 51, 269, sch 6
Cases
Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321
Brazier and Civil Aviation Safety Authority [2004] AATA 313 (26 March 2004)
REASONS FOR DECISION
Egon Fice, Senior Member
27 May 2015
Mr Robert Wallace is the sole director and manager of Wallace Aero Maintenance Pty Ltd (WAM). WAM is the holder of a Certificate of Approval (COA) to conduct maintenance of class B aircraft in Australia. A person engaged or intending to engage in the maintenance of class B aircraft, aircraft components or aircraft materials, must hold a Certificate of Approval issued by the Civil Aviation Safety Authority (CASA)
(Reg 42ZC(4), Civil Aviation Regulations 1988 (CAR)).
On 2 September 2013 CASA issued to WAM a notice (the Show Cause Notice) in accordance with CAR 269(3) to show cause why CASA should not vary, suspend or cancel the COA held by WAM. After considering a written response provided by Mr Wallace on 26 November 2013 on behalf of WAM and holding a show cause conference on 13 December 2013 with Mr Wallace, CASA issued a supplementary Show Cause Notice dated 20 March 2014 which was responded to by Mr Wallace on 24 April 2014. Having considered all of the material provided by Mr Wallace, on 8 September 2014 CASA decided to cancel the COA issued to WAM in accordance with CAR 269(1).
On 8 September 2014 Mr Wallace, on behalf of WAM, lodged an application with the Tribunal seeking review of CASA’s decision to cancel WAM’s COA. On the same day, Mr Wallace lodged an application under s. 41(2) of the Administrative Appeals Tribunal Act 1975 (AAT Act) seeking orders staying CASA’s decision to cancel WAM’s COA.
On 23 October 2014 the Tribunal made an order staying the operation/implementation of its decision to cancel the COA issued to WAM. That order was made by consent and subject to conditions demanded by CASA. The Stay Order remains operative.
The issues I am required to determine are:
(a)whether WAM has failed to continue to satisfy the requirements for the issue of a COA set out in CAR 30(2) and (2A) so as to ensure it can carry out the activities authorised by its COA in a satisfactory manner;
(b)having regard to the evidence before me, whether WAM has failed in its duty with respect to any matter affecting the safe operation of an aircraft (CAR 269(1)(c));
(c)whether WAM is a fit and proper person to be the holder of a COA (CAR 269(1)(d)); and
(d)whether the preferable decision made under CAR 269(1) was that WAM’s COA should be cancelled.
There was no question about whether the decision made by CASA is reviewable by the Tribunal. S. 31(1)(a) of the Civil Aviation Act 1988 (CA Act) relevantly provides (emphasis in original):
In this section:
decision has the same meaning as in the Administrative Appeals Tribunal Act 1975.
reviewable decision means:
(a)a refusal to grant or issue, or a cancellation, suspension or variation of, a certificate, permission, permit or licence granted or issued under this Act or the regulations; or…
APPLICATION FOR COA
On application for the issue of a COA, the applicant must provide CASA with evidence of the matters set out in CAR 30(2)(b) which provides:
(2) An application must be in writing and must:
(a)set out the following:… and
(b)have with it evidence of:
(i) the relevant qualifications and experience of the applicant and the applicant’s employees; and
(ii) the facilities and equipment available to the applicant for the carrying out of the activities; and
(iii) the arrangements made to ensure the applicant has, and will continue to receive, information necessary for the carrying out of those activities; and
(iv) a system of quality control that satisfies the requirements of subregulation (2D); and…
Furthermore, in accordance with CAR 30(2A), CASA must grant an applicant a COA covering the activities to which the application relates if CASA is satisfied that the applicant is able to carry out the activities in a satisfactory manner.
Persons permitted to carry out maintenance on class B aircraft in Australian territory are set out in Division 5 of the CAR. CAR 42ZC(4), insofar as it is relevant, provides:
Subject to subregulation (5), a person may carry out maintenance on a class B aircraft in Australian territory if:
(a)the person:
(i) holds:
(A)an aircraft engineer licence that permits him or her to perform maintenance certification for the maintenance; or
(B)an airworthiness authority or an aircraft welding authority covering the maintenance; and
(ii) either:
(A)holds a certificate of approval covering the maintenance; or
(B)is employed by, or working under an arrangement with, a person who holds a certificate of approval covering the maintenance;…
CAR 30(4) provides for an authorised person to do a number of things to determine whether the activities to which a certificate of approval relates are being carried on in a satisfactory manner. Relevantly, it allows the authorised person to:
(a)inspect any aircraft, aircraft component or aircraft material;
(b)inspect any process or systems carried on by, any records maintained by or any documents in the possession of, the holder of the certificate of approval in connection with the activities to which the certificate of approval relates;
(c)conduct any tests that the authorised person considers necessary; and
(d)require the holder of the certificate of approval to furnish to the authorised person such evidence as the authorised person requires:
(i) of the qualifications and competence of the holder or of the qualifications and competence of the employees of the holder; or
(ii) of the facilities at the disposal of the holder.
20 – 21 MARCH 2012 AUDIT
On 20 and 21 March 2012 Mr Stephen Cox, an airworthiness inspector employed by CASA, and Mr Bowler, an airworthiness inspector no longer with CASA, attended the premises of Douglas Australia Pty Ltd (DAA), a business which specialises in the application of paint to aircraft up to and including turbine powered light twin business jet aircraft. DAA is the holder of a COA which is limited to preparation and application of paint. Where maintenance is required on aircraft worked on by DAA, for example the removal of parts or components to allow painting, DAA must contract a COA holder who has approval to conduct aircraft maintenance. In most cases, DAA contracted WAM to perform this maintenance. It is also important to understand that DAA was not able to certify for aircraft maintenance carried out under the DAA COA. It was required to engage an appropriately licensed aircraft maintenance engineer (LAME) to perform or supervise and certify for all maintenance, including paint application, performed under the DAA COA.
Mr Cox prepared an extensive statement of evidence (31 pages in length) dated 10 March 2015 to which was attached numerous supporting documents (518 pages). That statement with its attachments was admitted into evidence. Mr Cox also gave oral evidence at the hearing.
In his witness statement Mr Cox said that in the course of carrying out the DAA audit, a work package for aircraft VH-FGG was sampled. Mr Cox found that the work package detailed work performed by WAM under its arrangement with DAA and both he and Mr Bowler found a number of deficiencies including:
(a)missing and incorrect certifications;
(b)no reference to approved [maintenance] data;
(c)incorrect Certificate of Approval number quoted for work performed; and
(d)missing log book entry for aircraft having had extensive maintenance performed by WAM under the WAM Certificate of Approval during the repaint of the aircraft.
The certification issues relating to WAM were of sufficient concern to Mr Cox and Mr Bowler to cause them to schedule an audit of WAM.
19 AND 20 APRIL 2012 AUDIT OF WAM
This audit was also conducted by Mr Cox and Mr Bowler. As a consequence of the audit, two Non-Compliance Notices (NCNs) were issued identifying 12 deficiencies and one Audit Observation which required WAM to review its entire maintenance procedures manual. CASA observed that WAM’s maintenance procedures manual (MPM) did not reflect the daily procedures in practice within the maintenance organisation and that was caused by a combination of the manual being deficient and those employed by WAM not following the manual. CASA recommended that WAM consider a complete rewrite of its MPM.
The deficiencies noted by CASA on audit were significant and in fact ongoing, having been the subject of previous audits. The identified problems included the following:
(a)work conducted on aircraft VH-FGG which included:
(i)the scope of work was in part carried out to support the repaint of the aircraft by DAA. WAM completed a 100 hourly inspection plus a specific scope of work to support the paint restoration. While each job was in a separate work pack, they were recorded under the one job number. In addition, no entry was made in the logbook for any of the work carried out by WAM for the work completed to support the paint restoration by DAA;
(ii)although the work to support the repaint included removal and installation of panels, wing tips, lights, fairings and all flight controls, balancing the flight controls and a functional check of the landing gear; the logbook entry for the flight controls did not include all the required regulatory information for independent inspection, and there was insufficient detail to establish which control systems were affected and the nature of the work carried out;
(iii)there was no entry for the restoration of decals on completion of repainting; and
(iv)the maintenance record was deficient as work conducted in the course of the stages of maintenance could not be established from the maintenance entries;
(b)aircraft VH-EDJ log book was deficient as there was no entry for repaint of the aircraft and no approved data reference for painting or decal restoration. Furthermore, total time in service was not entered, the licence number in final certification was not legible and the independent inspection entry had insufficient detail to establish the control systems affected and the work carried out;
(c)on additional worksheets sampled, no date was included on any of the certifications. In addition, the licence number was illegible on many of the samples;
(d)a number of work packages and worksheets were reviewed and of those sampled, items such as worksheet number, date, job number, and aircraft total time in service had not been entered. Also, there was no date included with the certification resulting in limited or no traceability of the worksheets during all post-maintenance;
(e)Manual Affirmation had not been signed off by all staff employed by WAM;
(f)there was no compliance with MPM’s internal audit system; conflicting information in some items and no evidence of a previous internal audit as required;
(g)MPM not followed in respect of final certification format including major defect reporting;
(h)the forms listed in the MPM did not have any means of version control and no currency accountability;
(i)no Form WAM 5 (control systems – independent inspections) was completed for the independent inspection of flight controls per MPM requirements; and
(j)contrary to MPM procedures, WAM 2 (additional worksheets) entries made no reference to approved data.
Mr Cox and Mr Bowler held a follow-up meeting with Mr Wallace on 24 May 2012 to discuss the audit report. The purpose of the meeting was to ensure that all parties had a clear understanding of their regulatory obligations. Despite that meeting, on 4 July 2012 CASA notified Mr Wallace that correction or acquittal of the matters identified in the NCNs was overdue and he had not indicated where he was up to in carrying out amendments to the MPM. Following an explanation from Mr Wallace, CASA agreed to an extension to the end of July 2012 provided CASA was kept up to date on his progress.
However, Mr Wallace did not comply and Mr Cox sent to Mr Wallace an email on 27 August 2012 asking that he address the issues raised in the audit report. Mr Wallace responded on the same day indicating he would comply.
On 28 August 2012 Mr Wallace purported to comply with the NCNs. However CASA rejected WAM’s response to the NCN (EF09/9173-2) and explained the deficiencies in the response. It extended Mr Wallace’s response date to 4 September 2012. However Mr Wallace did not provide CASA with the response to that NCN until 10 January 2014.
AIRCRAFT INCIDENT INVESTIGATION VH-DYA
Aircraft VH-DYA had an in-flight incident on 12 September 2012 when the propeller spinner dislodged and fell from the aircraft. Fortunately, the aircraft landed safely. CASA’s initial investigation determined that the aircraft was contracted to DAA for maintenance, surface refurbishment and repaint. DAA, because it held a limited COA, contracted WAM to carry out additional maintenance and disassembly of that aircraft. The maintenance to be carried out by WAM included removal and installation of the propeller.
CASA’s initial investigation indicated that WAM had removed the propeller in preparation for the repaint by DAA and then reinstalled the propeller after that work was completed.
In its assessment of safety risk, CASA stated that the initial risk was the potential for damage to the aircraft as the detached spinner may have impacted on the pilot’s ability to control the aircraft had the incident resulted in damage to a control surface. The spinner may also have impacted the windscreen resulting in loss of vision and/or potential injury to the pilot in command. CASA also noted a second level of risk and that was the ability and culture of the maintenance organisation (WAM) which fitted the propeller. The report stated that based on its known history as a result of two audits in the past eight months, the organisation posed a future risk if it continued not to meet its regulatory requirements.
In its initial investigation of this incident including an interview with the owner of the aircraft, CASA noted that the propeller was removed for the repaint by Mr Wallace who certified for the repainting of the aircraft under the DAA COA. The owner told CASA that the spinner on the aircraft was cracked and needed to be replaced. The owner also told CASA that he supplied the replacement parts to be fitted, including the forward and aft propeller spinner bulkheads as well as a propeller spinner. The owner identified the part numbers. However, WAM was unable to produce a maintenance record for the work carried out. The owner of the aircraft advised CASA that after the incident, WAM identified that the forward bulkhead was not fitted and that caused the spinner to dislodge.
In a record of conversation on 5 February 2013 between Mr Cox and Mr Wallace regarding the loss of the spinner incident, Mr Wallace suggested that the forward bulkhead was not fitted to the spinner at the time WAM removed the propeller. Mr Wallace said that he did not at the time recognise the incorrect configuration because there were many different installations for different models. When Mr Cox told him that he should always use the approved maintenance data, Mr Wallace replied that he did use WAM’s maintenance manual but failed to check the illustrated parts catalogue (IPC) as he should have. Apparently Mr Wallace attempted to justify the error by stating that there are times when one cannot find a manual or current data for some installations and he was required to research and determine why the installation was different and whether modifications had been made to the particular aircraft.
According to Mr Cox, he had before him during that conversation copies of the logbook entries for aircraft VH-DYA and Mr Wallace told him of the two job numbers the work was done under indicating that if Mr Cox looked at those, he would find an entry for the installation of the propeller. Mr Cox then read through the two work order numbers with Mr Wallace over the telephone and Mr Wallace agreed with the information read to him as being the work which was performed to the best of his memory, however there was no evidence of any entry for the installation of the propeller. While Mr Cox indicated that he only had copies from the aircraft logbook and not the original logbook, and he could not say there was not another entry, Mr Wallace apparently said that all work was entered under the two job numbers that Mr Cox reviewed and then said ok well I thought I wrote it in there but obviously I missed it.
On 20 September 2012 CASA notified WAM that it proposed to hold another audit on 16 and 17 October 2012. That audit was in fact conducted from 16 – 18 October 2012.
16 – 18 OCTOBER 2012 AUDIT OF WAM
The summary to the audit report, which was completed by Mr Bowler on 22 November 2012, stated that a full audit of WAM was conducted with a focus on comparing the procedures in the organisation’s system of quality control against the organisation’s process in practice, and an examination across the whole of the organisation’s management systems, including the system of quality control and the system of certification for the activities authorised under the COA.
Mr Bowler then said (emphasis added):
The audit concentrated on the organisations [sic] process in practice, measuring the organisations management system outcomes against evidence of system compliance. Elements examined were the facilities, data, equipment and tooling, and management systems (system of quality control – system of certification). In all elements there was clear evidence showing that the system of quality control and system of certification were barely, if at all, followed. This is in spite of the April audit Non-Compliance Notices which identified considerable non-compliance with the system of quality control.
CASA issued to WAM some 12 Non-Compliance Notices following that audit. In summary, they involved the following findings:
·Work Control Procedures – aircraft VH-MPH: worksheets not completed in accordance with approved system of certification; periodic inspection close to completion but no maintenance inspection items certified; additional work above inspection requirements completed but no entries for removal of parts for access including various panels, engine cowls, seats and various items of interior trim; no defects were recorded; no entries in the aircraft maintenance record for any maintenance carried out.
·Work Control Procedures – aircraft VH-MPH: as above but with the addition of one further MPM reference.
·Work Control Procedures – aircraft VH-IGG: worksheets not completed in accordance with approved system of certification. The left and right-hand wing assemblies, forward windscreens, cockpit canopy, various access panels, seat assemblies and various interior trim panels were removed. There were no entries on the aircraft maintenance record.
·Work Control Procedures – aircraft VH-EDU: worksheets not completed in accordance with the approved system of certification. Maintenance records indicated a periodic inspection was in progress but the aircraft was not in the hangar at the time. The work package was found to have several items on the inspection signed off with the additional worksheet left blank. However, there was a list of defects for the aircraft on an A4 sheet of paper attached to the work package. The chief engineer advised they had identified the items listed on the A4 sheet of paper in order to advise the owner of the initial inspection findings.
·Premises and Facility Condition – organisation facilities not maintained in accordance with MPM procedures: not in a sound, clean and tidy condition.
·Tooling – Calibration – non-compliance with system of quality control: tools which should have been calibrated in accordance with MPM procedures were found not to have been calibrated. In addition, tools which should have been registered and calibrated in accordance with MPM procedures were found not registered or calibrated.
·Internal Audit – non-compliance with system of quality control: no record of internal audits available suggesting no internal audits have ever been carried out.
·Major Defect Reporting – non-compliance with CAR 51: parts in the hanger removed from aircraft without identification but defective to such a level that would indicate a major defect. No record of major defect reports for these items able to be provided by WAM.
·Major Defect Reporting – non-compliance with system of quality control: no record of major defect reports being made on two parts (corroded flap track and broken landing gear cylinder) found to be defective to a level which indicates a major defect was present on the aircraft from which the parts were removed.
·Quarantine Store – non-compliance with system of quality control: the hangar and rooms connected to the hangar contained a mass of large and small aircraft assemblies and parts too numerous to record. The majority of these parts were used parts removed from various aircraft types. There were some new parts scattered at various points around the hangar, walls, floors and in rooms connected to the hangar. The majority of the parts were unidentified with one or more of the required – identification, service life, part number, serial number, origin and/or service life. In addition, despite there being a quarantine store, all these items were stored throughout the entire hangar complex.
·Stores Control and Storage Conditions – non-compliance with system of quality control: most used parts, including flexible hoses, were stored around the hangar, the store and hangar connecting rooms on boxes, benches, shelves and the floor, without protective covers, packaging, caps etc.
·Stores Control and Storage Conditions – non-compliance with system of quality control: Although there was a shelf-life control system in place to monitor shelf- life items, several such items were identified, including O-rings and Loctite products, left around the hangar and rooms connected to the hangar and not monitored or removed at expiry date.
In a brief technical summary, Mr Bowler said that the majority of processes examined, in practice, continued to be carried out contrary to the organisation’s current system of quality control and system of certification. That was despite WAM having given an undertaking to CASA in April 2012 to rewrite the system of quality control to reflect current practices or to abide by the current system of quality control as stated in the MPM. Mr Bowler also noted that WAM was afforded education assistance in relation to maintenance regulations, and how to create simple procedures to meet the legislative requirements including how to make certifications in accordance with the relevant CASA system of certification. He then concluded:
This audit revealed that the organisation has not improved its processes and practices other than in regard to some aspects of certification and log book records; and although the organisation has made a start on rewriting their system of quality control, it was only commenced after CASA had set a date to carry out this second audit.
THE SHOW CAUSE NOTICE
Following the audit in October 2012, CASA recommended a number of changes and revisions which WAM should make to its MPM. When CASA issued its Notice of Proposed Action (Show Cause Notice) on 2 September 2013, those matters remained outstanding.
In his response to the Show Cause Notice, Mr Wallace essentially acknowledged the deficiencies identified by CASA in the operation of WAM’s maintenance of aircraft. However Mr Wallace attempted to deflect the blame for those deficiencies on others. For example, where CASA found that there were deficiencies in WAM’s MPM, he said that the manual had been submitted to CASA for a review before the COA was issued. However, the complaint was that the procedures in fact adopted by WAM were not consistent with those set out in its MPM and this appeared to result from a combination of the manual being deficient and WAM not following its manual procedures. It is plain that the majority of the complaints made by CASA were as a result of the engineers at WAM not following their own manual procedures. This included failure to follow procedures regarding major defect reporting. Although Mr Wallace suggested that most major defects were on aircraft that arrived through DAA and were reported to that organisation, he continually appeared to fail to recognise the limits on DAA’s COA and responsibilities that WAM had accepted when disassembling and reassembling aircraft prior to or following paintwork.
In response to CASA’s claim that logbook entries for the works carried out by WAM under its COA were absent, Mr Wallace simply said that the entries were completed in the way instructed by Mr Bob Prater, a CASA officer, prior to the audit carried out by Mr Cox and Mr Bowler. Mr Wallace also blamed his long delay in responding to the NCNs issued following the April 2012 audit to his marital problems and coming to terms with a full understanding of his regulatory responsibilities.
Following the October 2012 audit, CASA noted that WAM had made no notable progress and still was failing to follow the requirements of its existing MPM. It had done nothing about revising the manual itself. Mr Wallace’s response was that hopefully he had found someone recently who should be able to undertake that work. As for the poor condition and haphazard storage of items throughout the hangar and store rooms, Mr Wallace said that his former wife controlled that. He also suggested that the facilities were now generally a lot cleaner and he was constantly trying to find ways to improve them.
Regarding the A4 sheet of paper attached to the work package in respect of aircraft VH-EDH, Mr Wallace simply said that aircraft had never been at WAM facilities or under its care at any time. However, given that this was picked up at the time of audit at WAM’s maintenance facility, if the aircraft was not at that facility for maintenance, perhaps the response should have explained why there were worksheets for maintenance on that aircraft present at WAM’s facility.
The calibration of particular tools appears to have been an ongoing problem. Mr Wallace pointed out that a new process was installed listing tools required to be calibrated and the due date. This was done by putting that information on a whiteboard in the tea room.
In response to CASA’s claim that WAM failed to comply with its MPM regarding the recording of major defects on two parts from an aircraft found in the hangar, Mr Wallace simply said that no future breaches like that would happen because he was now aware that simply letting the aircraft registration holder know was not sufficient to comply with the regulations. With respect to Mr Wallace, that response is astonishing. As a LAME, he must have been aware of that requirement.
As for all of the parts which littered the hangar and surrounding rooms without identification or serviceability tags, Mr Wallace said that most of the parts were removed from aircraft which were in for maintenance and were not labelled because the need was not known. He said that since the audit, parts are tagged or removed. He also said that the hangar was going to have a further cleanout because of customers leaving parts there, though some items could not be disposed of without first notifying customers.
The dislodgement of the propeller spinner on aircraft VH-DYA raised significant safety issues regarding WAM’s maintenance. Mr Wallace’s response to the incorrect refitting of the spinner was that the aircraft arrived without a forward bulkhead or spinner and he saw no need to fit one on reassembly. He said he referred to its arrival configuration as a guide to reassembly. As for the maintenance records for that job, Mr Wallace was unable to find them. Although Mr Wallace admitted that the propeller assembly and spinner had been incorrectly installed, he said he simply refitted those items in the configuration they arrived at DAA.
Mr Wallace also insisted that he installed the propeller in accordance with the approved maintenance data. However that statement is plainly incorrect. The owner of the aircraft advised CASA that the forward bulkhead had not been refitted and was still sitting at DAA’s premises. Mr Wallace also suggested that research carried out by WAM and DAA showed that the aircraft had been flying for some time before painting with the spinner incorrectly assembled and this was disclosed in a photograph supplied to CASA showing the aircraft on arrival without a spinner or forward bulkhead fitted. There was no evidence from DAA regarding that allegation.
CASA also noted that following the October 2012 audit, it submitted a list of recommended amendments and revisions to WAM’s MPM but as at the date of issue of the Show Cause Notice, WAM had not provided CASA with the revised manual or any evidence that the manual was under revision in accordance with the recommendations. Mr Wallace’s response was simply that WAM was undertaking a manual revision.
There were many more items listed in a Supplementary Show Cause notice dated 20 March 2014. In effect, it covered calibrated tool control, two magnetos in aircraft VH-LLO which had overrun their time between overhaul, stores and stores control processes including the lack of order, correct storage and tracking of items, shelf life control of consumable items and the general tidiness of the hangar facility.
CASA AUDIT 7 AND 8 JANUARY 2014
CASA conducted a surprise audit commencing on 7 January 2014. The audit was conducted by Mr Cox and Mr Bruce Reilly. This followed the show cause meeting on 13 December 2013 with Mr Wallace where he confirmed that WAM had made considerable changes and was now compliant with the areas of concern in the show cause action taken against it.
In summary, Mr Cox and Mr Reilly said:
During the show cause meeting Mr Robert Wallace confirmed that WAM had made considerable changes and was now compliant with the areas of concern in the show cause action taken against WAM.
The audit identified a number of deficiencies in the areas previously identified in the show cause action. These deficiencies resulted in the need to ground two aircraft, one as a result of the use of out of calibration tooling, the second as a result of time expired component changes not verified with appropriate maintenance records.
While it was evident the facility itself had undergone some changes to remove some of the clutter, overall there was little evidence of change and the facility was considered to be in an unacceptable state.
In an email dated 10 January 2014, Mr David Farquharson, CMT Team Leader, CASA Southern Region, Melbourne, said:
Despite the assurances made by Mr Wallace during the show cause conference, there were two occurrences of WAM knowingly using calibrated tooling out of calibration. One item was a tyre pressure gauge. The other was a cable tensioning device that Mr Wallace stated was at least eight months overdue for calibration. It had been recently used during an aircraft rebuild after heavy maintenance – the aircraft was local and was grounded until confirmation of control cable tensions could be verified with a properly calibrated device. The use of non-calibrated instruments such as this have clear safety of flight implications.
The hangar and associated stores remain non-compliant with many items still untagged or, in the case of bulk parts, effectively untraceable. While not as serious as the tool calibration issue, it is still a significant safety of flight issue.
There was evidence located of WAM still not having correct maintenance documentation and incomplete log book entries.
Effectively, despite what Mr Wallace said in the course of the show cause conference, very little if anything significant had altered in WAM’s maintenance operations. The grave concern which this causes me is further amplified by the fact that I had in evidence a number of Requests for Corrective Action (RCAs) issued following a CASA audit in February 2009. One of those RCAs refers to tooling calibration being overdue and mentions that during the last CASA audit in 2006 there was also an item overdue plus some other related matters. Despite the numerous audits over some eight years, WAM has not managed to comply with the regulatory requirements dealing with the maintenance of aircraft.
There was an RCA relating to WAM’s quality control system and in particular the requirement for internal auditing of the MPM. There was also an RCA about some certifications of completion of maintenance which failed to include details of all the approved maintenance data used in carrying out the maintenance or did not have the licence number of the LAME entered on the worksheets. Another RCA referred to the fact that WAM had not kept documents containing stages of maintenance certifications covering that maintenance. This was in respect of work carried out on aircraft being painted by DAA. WAM made certifications on DAA documents with the statement that the certifications were on behalf of WAM. In that RCA it was pointed out that the CASA system of certification of completion of stages of maintenance in subpart 2.3 of Schedule 6 of the CAR has the effect of offering an option of making stage certifications in documents kept by the person carrying out the maintenance (in this case WAM) or in the aircraft logbook or approved alternative maintenance record for the aircraft. However WAM did not make stage certifications on documents kept by it or in the aircraft log books. These are matters which have been repeated on each of the audits conducted since 2006. Nothing appears to have changed.
In the course of his cross-examination by Ms E Ford, counsel for CASA, Mr Wallace did not seriously dispute any of the findings made by CASA about WAM’s deficiencies when conducting maintenance on aircraft. Furthermore, despite Mr Wallace claiming that he had been told by Mr Prater how to complete certification for completion of stages of maintenance and had complied with those instructions, it is plain from the RCAs to which I have referred above that Mr Prater told Mr Wallace what to do but Mr Wallace has not followed that advice.
I allowed Mr Wallace some additional time to file further submissions. Those were received by the Tribunal on 20 May 2015. Although those submissions do not appear to have been provided to CASA by Mr Wallace, the Tribunal did so. CASA provided a brief response to those submissions which I have taken into account. In any event, they do not in any way affect my conclusions regarding the preferable outcome of this application.
One of the submissions made by Mr Wallace was in respect of the certification of stages of maintenance and final certification. Mr Wallace submitted that he was confused by use of the words approved and authorised. He said CASA appeared to use the two words interchangeably in relation to work being correctly recorded. He said he mistakenly understood this to mean that the approved manual sections were to be recorded on the worksheets (which were approved) which he claimed he had been doing. If Mr Wallace were simply to refer to Schedule 6 of the CAR, he could not possibly be confused. The certification of stages of maintenance including where such certification must be made is plainly set out in paragraphs 2.3 and 2.4. Final certification is dealt with in Part 4 and paragraph 4.2 states precisely where such final certification must be made. None of the paragraphs to which I have referred above refer to authorised documents.
Although Mr Wallace claimed he had been singled-out because of the way he was filling in log books, that in itself is a misunderstanding. What must be included in certification and where that certification must be made is plainly set out in Scheduled 6. I cannot see any ground for the misunderstanding which Mr Wallace claimed. Furthermore, as CASA’s response to Mr Wallace’s submissions states, the main issue with which CASA was concerned was the fact that Mr Wallace failed to make log book entries at all. It is plainly not a question of Mr Wallace being singled-out.
When the incident regarding the spinner from the aircraft propeller being dislodged was brought to Mr Wallace’s attention in the course of his cross-examination, he again maintained that if an aircraft came to WAM with a valid certificate of airworthiness and a valid maintenance release, he should be able to assume that all previous maintenance and parts were true and correct at the time of their installation. He then suggested that with the benefit of hindsight, it is true that he should have looked at the parts catalogue, but given that the aircraft came in without a forward spinner bulkhead, without the spinner attached and with the spinner having been delivered by the owner at the same time, there was no reason in his mind to check the parts catalogue. As CASA stated in its further submissions, the reference to approved maintenance data must necessarily include all of those matters set out in CAR 2A which may be applicable. It is not simply a question of relying on the advice of the manufacturer. Mr Wallace appeared to accept that the maintenance carried out by WAM included removal and installation of the propeller. However, Mr Wallace was unable to produce any maintenance records substantiating what he said regarding the absence of the forward bulkhead.
Subsequently, the registered owner of the aircraft advised CASA that he supplied replacement parts to be fitted following the repaint and they included both propeller spinner bulkheads (forward and aft) as well as the propeller spinner. He provided part numbers for those components and therefore I have no reason to doubt that this is what happened. The aircraft owner told CASA in a telephone conversation with Mr Cox that he physically passed the spinner and the forward bulkhead to Mr Bill Wiadrowski (a Director of DAA) who took those components back with him and then the owner drove to Yarrawonga some days later and delivered the aft bulkhead. If that is correct, and there was no evidence to the contrary, it appears that at least two other persons were aware that a forward bulkhead was required to be fitted on replacement of the propeller and spinner. Therefore, I suspect there is more to this story than has been stated by Mr Wallace or has been uncovered by CASA. In any event, in circumstances where Mr Wallace was aware that some aircraft have a forward and aft bulkhead while others only have one bulkhead, a prudent engineer would have checked the aircraft’s approved maintenance data as required by CAR 42V to determine the proper components to be fitted to the propeller of the aircraft in question prior to commencing any work.
As I have mentioned above, I granted a stay of the operation and implementation of CASA’s decision to cancel WAM’s COA subject to certain conditions. One of those conditions was that WAM could only carry out one maintenance release inspection at a time. Ms Ford referred Mr Wallace to that condition in the course of his cross-examination. Ms Ford further referred to the 100 hourly inspection job number 1733 which was raised on 16 March 2015. It was in respect of aircraft VH-LLO. She said the maintenance release was issued at 9.30 a.m. on 17 March 2015 and then WAM subsequently raised job number 1736 regarding defect rectification on LLO the following day, 18 March 2015. She asked Mr Wallace when he discovered the defects that were rectified under job 1736. At first, Mr Wallace said he did not recall what the job was. Ms Ford put to Mr Wallace that the defects should have been identified during the periodic inspection of LLO. Mr Wallace agreed that a defect should have been recorded if it was something that was visible or apparent at that time.
After consulting with Mr Cox, who was in the hearing room, it was established that the defect report related to the replacement of a torque link known as a McFarlane kit. Mr Wallace then appeared to recall the job details and said that after doing the 100 hourly, the aircraft, which was used for flying training at the airfield, had been flying and it was reported to be flying slightly one wing low and that was adjusted. According to Mr Wallace, the owner of the aircraft told him that the aircraft then did some more flying and a shimmy was reported in the nose wheel on landing. Mr Wallace maintained that no shimmy had been reported prior to the aircraft coming in for the 100 hourly maintenance and therefore it was not something which he could have foreseen in the course of doing that job.
He agreed that job number 1374, aircraft VH-BBZ, came in immediately thereafter for a periodic 100 hourly inspection. Ms Ford suggested to Mr Wallace that by moving LLO out and signing the maintenance release, that enabled him to commence maintenance on BBZ thus avoiding the restriction placed on him by the condition attached to the consent order made by the Tribunal. Mr Wallace said he did not have any documentation from the owner of LLO but simply said that the owner walked into the hangar stating it was flying one wing low and asked if it could be checked and adjusted. He said that WAM did so in accordance with the manual.
It does raise the question put by Ms Ford that this should have been done as part of the 100 hourly inspection. If the aircraft was flying slightly one wing low following the 100 hourly, it most certainly would have been doing so prior to it. The same can be said of the nose wheel shimmy.
In fact, following an adjournment, Ms Ford provided Mr Wallace with a copy of the maintenance release for aircraft VH-LLO disclosing entries for 17 and 18 March 2015. She pointed out that the aircraft total time in service had not altered between those two dates. In other words, the aircraft was not flown following the 100 hourly inspection as claimed by Mr Wallace. Despite Ms Ford putting directly to Mr Wallace that he separated out the defects as discrete jobs in order to carry out a periodic inspection on another aircraft and not breach the conditions of the stay, Mr Wallace denied that, rhetorically asking why he would put the jobs of adjusting the flap and fitting a torque link off when they don’t take a whole day to complete. With respect to Mr Wallace, the evidence strongly points to the two defects being present when the aircraft came in for the 100 hourly inspection. Despite that, he issued a maintenance release without the work being carried out. As CASA said in its supplementary submissions, it raises an issue about why those defects were not recorded on the maintenance release before the aircraft came to WAM.
In his supplementary submissions, Mr Wallace denied having deceived CASA regarding the maintenance on aircraft VH-LLO. He attached a copy of a letter from Jarden Aviation dated 19 May 2015 which was signed by Mr Jack Jarden. According to Mr Jarden, the aircraft was collected by WAM on 16 March 2015 when he was not present. He said he went to collect the aircraft on 17 March 2015 when it was requested (that statement plainly does not indicate who made the request) that WAM tend to a matter of a slight shimmy in the nose wheel and flying left wing low.
With respect to Mr Wallace, that letter is of no assistance at all. It of course contradicts what Mr Wallace first claimed, that is that the aircraft, after conducting flying training, was identified to have two additional defects. What that discloses is that Mr Wallace is not very careful with the truth when attempting to explain, under oath, what led to the further maintenance being identified. In any event, it does not explain why the periodic inspection maintenance was certified as having been completed on 17 March 2015 while two defects had not been rectified. According to Mr Jarden, he attended WAM at approximately 10 a.m. on 17 March 2015. In cross-examination, Mr Wallace said that the periodic inspection was signed off at 9.30 a.m. on that day. The problem is that we did not have Mr Jarden’s letter in evidence and CASA was not given the opportunity to cross-examine him. Given Mr Wallace’s first explanation regarding how those defects came to his attention, it would be unsound to rely on Mr Jarden’s letter.
I had in evidence an extensive statement prepared by Mr Cox together with attachments. In the course of his cross-examination, Ms Ford referred Mr Wallace to part of that statement which dealt with issues arising after CASA made its decision to cancel WAM’s COA. According to Mr Cox, following that decision, various issues arose where WAM had not complied or not fully complied with the conditions attached to the stay granted by the Tribunal.
In summary form, Mr Cox stated:
·On seven occasions, WAM failed to comply with condition 4 (a) which required it to provide to CASA by 1700 hours each business day a copy of the job register showing the previous seven days.
·Condition 4 required WAM to provide to CASA within 24 hours from the time an aircraft was released back into service following maintenance, a complete copy of the maintenance work package for that maintenance, including a copy of the final certification, logbook entry and or maintenance release where applicable. WAM failed to comply with this condition on five occasions during the period of the stay.
·Condition 5 (a) required WAM, within seven days of the grant of the stay, to provide CASA with a copy of the calibration certificate from the last calibration for each item of tooling in use that was subject to a calibration requirement. WAM did not provide the required information within the allotted time and did not initially provide all the required information.
·On 6 January 2015 WAM provided to CASA a copy of the completed work package for aircraft VH-WPU, job number 1699, being an annual inspection. Although WAM completed the logbook final certification, Mr Wallace said he would not complete the details on the maintenance release saying he would do that when the aircraft left the maintenance facility. He then said that the maintenance release would be provided to CASA separately. Although being told by Mr Cox that the maintenance release should be issued when the final certification was made in the logbook, Mr Wallace suggested to Mr Cox that Mr Cox had told him otherwise. Mr Wallace then said that he would redo the entire annual inspection in a few weeks even though the aircraft had not flown and that he would issue a second maintenance release. Mr Cox was concerned that Mr Wallace, as nominated chief engineer and a LAME did not understand the requirement to issue the maintenance release on completion of the maintenance inspection. By suggesting that he could delay the issue of the maintenance release, there was a risk that unless appropriate adjustments to the time in force of the maintenance release were made, the next annual inspection of the aircraft could well exceed the maximum 12 month calendar interval allowed.
·Supervision of the two unlicensed aircraft maintenance engineers (AMEs) employed by WAM was an issue during the October 2012 audit. One of the AMEs told Mr Cox that on some occasions it was days before Mr Wallace signed off for the work done by an AME. Mr Cox told the AME of the need to certify a stage of maintenance immediately once it was completed, whether being supervised or performing that maintenance. Mr Cox had raised this in November 2014 with Mr Wallace including concern expressed about the level of actual supervision exercised by the LAME who certified the completion of maintenance. Despite that, further examples of these kinds of errors were found in a number of aircraft work packages.
·Mr Cox reviewed a number of the work packages received from WAM in compliance with condition 4 (b). Mr Cox noted a total of 28 individual aircraft records were all found to have no reference to the approved data used as required under CAR Schedule 6, paragraph 4.4 (f).
·Mr Cox identified a number of maintenance entry and certification errors in a sample review of maintenance work packages. He identified seven of those.
·A number of the worksheets included items which had been obliterated and where the original entry was illegible. Mr Cox had raised this with Mr Wallace in the past indicating that the integrity of maintenance records must be maintained. That was why CASA provided guidance on the method to correct errors in relation to the aircraft logbook and the same should apply to a maintenance release. Although ruled through, the original entry must remain legible.
In his additional submissions, Mr Wallace claimed that a number of the breaches of the conditions of the stay order outlined by Mr Cox were either incorrect or not his fault. He set out reasons why some of the documents were late in being received by CASA. Although it is possible that the reasons given by Mr Wallace are valid, this is not the most significant aspect of the breaches identified.
Mr Cox concluded that based on his involvement in the audits of WAM since 2012, he was of the view that WAM continued to fail to comply with the Internal Audit documented procedures in the WAM MPM to ensure that its activities were performed in a manner which complied with the aviation legislation and the requirements of its procedures manual. As Mr Cox said, a comprehensive and effective system of quality control is essential to ensure that all aspects of maintenance activity conducted under a COA are adequately controlled and performed in a safe and compliant manner.
Based on WAM’s systemic contraventions of aviation legislation and the requirements of its own MPM, Mr Cox was of the view that WAM did not have in place an effective system of quality control to ensure that its authorised maintenance activities were conducted in a satisfactory manner.
Mr Cox said that of even greater concern was the fact that WAM had been either unwilling or unable to remedy identified defects in its maintenance practices and procedures despite those deficiencies being pointed out to it in the course of multiple audits and during the show cause process which led to the decision to cancel its COA. I share that concern.
In cross-examination, Ms Ford asked Mr Wallace whether he disagreed with anything that Mr Cox had said in his witness statement regarding the matters which he outlined following the grant of the stay by the Tribunal. Although Mr Wallace attempted to explain why he had some difficulties with providing information on time, he said he did not believe that Mr Cox had got his facts wrong in any respect.
Attached to Mr Cox’s witness statement were copies of photographs taken of WAM’s hangar facility in October 2012 and again in January 2014. While the photographs taken in January 2014 show a slight improvement in the organisation and tidiness of the facility in some parts, it is, in my respectful opinion, nowhere near what would be expected of an organised and properly conducted maintenance operation. Some areas have not changed at all. As Mr Cox said by referring to pictures taken of the front section of the hangar, outside the office and stores facility, it was simply a mess. There are aircraft parts all over the place, none of them are tagged and nothing is identified. There are numerous boxes full of screws, washers, nuts and bolts (referred to by Mr Cox as scratch boxes). There is a box full of flexible hoses and, according to Mr Cox, there was no indication as to whether they were serviceable or unserviceable. According to Mr Cox, at the Show Cause Conference, Mr Wallace said that the hoses had been disposed of and that some had been kept and placed in the store for testing equipment. Some of the hoses that had been kept were blanked but not tagged as required. Nevertheless, the photographs show that nothing much had changed.
While Mr Cox agreed that some effort had been made by Mr Wallace in tidying up the front of the hangar, he described the other end of the hangar as so-so… reasonably tidy and clear. The photographs taken in January 2014 disclose that Mr Wallace has either not understood what CASA asked him to do, or he is incapable of full compliance. The state of the maintenance facility remains a serious concern.
SHOULD WAM’S CERTIFICATE OF APPROVAL BE CANCELLED
The evidence before me in this case clearly discloses that WAM has experienced significant difficulty in complying with regulations dealing with the maintenance of aircraft. That difficulty goes back to the audit conducted by CASA in February 2009. In fact, although I did not have before me the full report of the audit conducted in March 2006, there are a number of references to that in the documents produced as a result of the February 2009 audit. The disturbing aspect of the evidence is that despite significant effort by CASA to assist WAM in achieving substantial compliance with the regulations, it has not been successful. One would have reasonably expected to see substantial improvement over the eight year period where WAM has been closely involved with CASA to bring it up to a compliant state.
The significant problems raised by the evidence lead me to find that WAM does not continue to satisfy the requirements for the issue of a COA set out in CAR 30 (2) and (2A). WAM is not able to carry out the maintenance activities in a satisfactory manner and, despite substantial assistance and direction from CASA officers, has not been able to maintain a system of quality control required by subregulation (2D). Furthermore, the facilities and equipment available to WAM for carrying out the activities are plainly substandard.
Also deeply disturbing is the evidence I had regarding maintenance activities undertaken by WAM during the period that the conditional stay order was in place. It is not possible to conclude otherwise than Mr Wallace issued a maintenance release for aircraft VH-LLO knowing that outstanding defects remained. This occurred at a time when CASA’s surveillance of its operations was intense. Despite Mr Wallace’s evidence that the defects only became apparent following completion of the periodic inspection as a consequence of the aircraft having flown for training purposes, Mr Wallace must have known that it had not flown because when he did the rectification work on the day after the maintenance release was issued he entered the total time in service for the aircraft which was identical to its total time in service on the previous day. It is difficult not to conclude that Mr Wallace deliberately attempted to deceive CASA about this issue.
I accept CASA’s submission that it must regard the safety of air navigation as the most important consideration. That is plainly set out in section 9A of the CA Act which relevantly provides:
9A Performance of functions
(1) In exercising its powers and performing its functions, CASA must regard the safety of air navigation as the most important consideration.
While I accept that the impact which a CASA decision may have on an authorisation holder is important, it must be subordinated to the interests of safe air navigation.
CASA relies on Regulation 269 of the CAR as the basis for its cancellation decision. Relevantly, CAR 269 provides:
(1) Subject to this regulation, CASA may, by notice in writing served on the holder of an approval, authority, certificate or licence (an authorisation), vary, suspend or cancel the authorisation if CASA is satisfied that one or more of the following grounds exists, namely:
(a)…
(b)that the holder of the authorisation fails to satisfy, or to continue to satisfy, any requirement prescribed by, or specified under, these Regulations in relation to the obtaining or holding of such an authorisation;
(c)that the holder of the authorisation has failed in his or her duty with respect to any matter affecting the safe navigation or operation of an aircraft;
(d)that the holder of the authorisation is not a fit and proper person to have the responsibilities and exercise and perform the functions and duties of a holder of such an authorisation;…
There can be little doubt that WAM has not continued to satisfy the requirement in the CAR for the obtaining or holding of a COA. It does not continue to satisfy the evidentiary requirements set out in CAR 30(2)(b)(ii) and (iv) for the issue of a COA. Its facility is in an unsatisfactory condition and for reasons which can only be explained by Mr Wallace, some essential equipment used in the maintenance of aircraft has continued to be used for years without being calibrated. That is despite these matters being raised on more than one audit. It is clearly a dangerous practice. Furthermore, despite having a Maintenance Procedures Manual which, on inception, apparently met CASA’s requirements, it is not followed by Mr Wallace or the AMEs who work for him. There are basic procedures which Mr Wallace, although having been previously told about them, continues to ignore. For example, Mr Wallace has been told on more than one previous occasion of the requirement to include approved maintenance data in the logbook entry on final certification. It appears to me as though Mr Wallace does not have a copy of Schedule 6 of the CAR which sets out the CASA system of certification of completion of maintenance. If he does, he does not appear to have read it or does not understand it. Part 4, which deals with final certification, sets out at paragraph 4.4(f) that the final certification must set out details of the approved maintenance data used to carry out the maintenance. It is not something which should have to be brought to his attention by CASA.
In the course of the hearing, it also became apparent that Mr Wallace did not seem to understand where final certification of maintenance was required to be made. CAR Schedule 6 paragraph 4.2 makes it plain that the final certification must be made in the aircraft logbook or approved alternative maintenance record for the aircraft. For reasons which are entirely unclear, Mr Wallace seemed to be of the view that his maintenance records satisfied that requirement. They have never been approved as an alternative maintenance record for the aircraft. Again, this is fundamental knowledge for those performing maintenance for the holder of a COA.
Deficiencies in WAM’s MPM were brought to Mr Wallace’s attention in the course of the April 2012 audit. Mr Wallace has given CASA several assurances that a new manual was in the process of being developed. Despite that, there is no evidence of that having taken place.
CASA also referred to the logbook entry for aircraft VH-FGG, a Cessna which was subject to an SID programme and periodic maintenance. No logbook entry was made after the performance of that maintenance. According to Mr Wallace, no entry was made to avoid unnecessary duplication as the maintenance was recorded in the DAA paperwork (apparently on the advice of Mr Prater). However, Mr Wallace conceded during the hearing that Mr Prater had instructed him on how to correctly complete the certification by 2009 at the latest. I agree with CASA’s opinion that despite education and assurances from Mr Wallace that he understands his legislative requirements, CASA cannot have confidence that Mr Wallace in fact does understand and, if he does, will properly implement and carry out a maintenance system complying with legislative requirements.
It is apparent from what Mr Cox said in evidence and the photographs which are attached to his witness statement that the process of identifying, tagging and properly storing components removed from aircraft is simply non-existent. There was no shelf life control of items with limited shelf life.
The incident where aircraft VH-DYA lost its spinner in flight is a serious safety matter. Although Mr Wallace accepted that he should have used the parts catalogue as part of the approved data when refitting the propeller and spinner to that aircraft, he appeared reluctant to accept that he should have referred to that document when completing the maintenance. While he accepted that with the benefit of hindsight, that could be said, he did not accept that every component removed and refitted to an aircraft should be checked against a parts catalogue. While I accept that not every component replaced on an aircraft requires reference to a parts catalogue, Mr Wallace indicated he was aware that there were spinners which had two bulkheads and others which only had one. In my opinion, a prudent LAME would have checked to confirm the correct fitment in this case.
The failure of WAM consistently over the past eight years to maintain a tooling calibration system and to only use calibrated tools in the maintenance of aircraft is also a serious safety issue. Mr Wallace seemed to think that after the calibration of a tensiometer was checked, it having been well past the date due for checking, and found to have been satisfactory, it made his neglect of this requirement not so serious. Because no accident or incident resulted from this, he did not seem to consider it to have been serious. With respect to Mr Wallace, the opposite is true. The risk potential of an accident occurring was significantly increased.
I have also referred to some matters which occurred after the Tribunal had granted a stay on conditions imposed by CASA. There were a number of breaches of those conditions, the case of aircraft VH-LLO being perhaps the most egregious. The fact that Mr Wallace could not abide strictly to the conditions imposed when he knew he was under close scrutiny by CASA does not give me any confidence at all that he would do so without close scrutiny.
Given the above matters to which I have referred, I find that WAM, the holder of the COA, failed to continue to satisfy the requirements of CAR 30 for the issue of a COA.
By way of explanation, Mr Wallace said in his statement dated 26 October 2010 (received by the Tribunal on 18 December 2014) which was accepted into evidence that when first learning to fly, he was told to aviate, navigate and communicate, in that order. He said he applied that to his maintenance work by dealing with the actual aircraft first, then paperwork and finally CASA for communication. With respect to Mr Wallace, while that sense of priorities may well be appropriate for a pilot who experiences a problem whilst airborne, it cannot be applied to maintenance work. It also discloses that Mr Wallace considers the certification of maintenance as being secondary to conducting the work itself. With respect, that is simply erroneous. The certification of maintenance, whether it be stages of maintenance, coordination of maintenance or final certification, is an integral component of maintenance. It is not something which occurs as an afterthought following the performance of maintenance. I have explained the reasons for that in my decision in the matter Brazier and Civil Aviation Safety Authority [2004] AATA 313 at [187]. It is an integral part of establishing the state of airworthiness of an aircraft. Unfortunately, Mr Wallace does not seem to understand that.
Accordingly, I also find that WAM has failed in its duty with respect to a matter affecting the safe navigation and operation of an aircraft.
The third limb relied on by CASA for its cancellation of WAM’s COA is that WAM is not a fit and proper person to have the responsibility and exercise and perform the functions and duties of the holder of such an authorisation.
The meaning of the expression fit and proper person was explained by the High Court of Australia in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321. Toohey and Gaudron JJ said, at 380:
The expression “fit and proper person”, standing alone, carries no precise meaning. It takes its meaning from its context, from the activities in which the person is or will be engaged and the ends to be served by those activities. The concept of “fit and proper” cannot be entirely divorced from the conduct of the person who is or will be engaging in those activities. However, depending on the nature of the activities, the question may be whether improper conduct has occurred, whether it is likely to occur, whether it can be assumed that it will not occur, or whether the general community will have confidence that it will not occur. The list is not exhaustive but it does indicate that, in certain contexts, character (because it provides indication of likely future conduct) or reputation (because it provides indication of public perception as to likely future conduct) may be sufficient to ground a finding that a person is not fit and proper to undertake the activities in question.
In the context of aviation matters, it is understood to require consideration of the fitness and propriety of an authorisation holder, taking into account the responsibilities, functions and duties of the holder. Importantly in this case, emphasis should be placed on the improper conduct of WAM, by its Chief Engineer, Mr Wallace, and whether, in the conduct of aircraft maintenance activities, that improper conduct is likely not to occur in the future or that CASA can have confidence that it will not occur in the future. For the reasons I have already set out above, and in particular Mr Wallace’s conduct when performing aircraft maintenance during the period when the Tribunal granted a stay on the execution or implementation of CASA’s decision to cancel WAM’s COA, I can have no confidence that such conduct would not again occur were the scrutiny of CASA to be removed for any period of time. It follows that I find WAM is not a fit and proper person to have the responsibilities and exercise and perform the functions and duties of a holder of a COA.
CONCLUSION
I have found that WAM’s conduct when conducting maintenance on aircraft under its COA enlivens CASA’s discretion to vary, suspend or cancel WAM’s COA for the reason that it satisfies the grounds set out in CAR 269(1)(b), (c) and (d). I find that CASA’s decision to cancel WAM’s COA was the preferable decision. I affirm that decision.
I certify that the preceding 90 (ninety) paragraphs are a true copy of the reasons for the decision herein of Egon Fice, Senior Member ...............................[sgd].........................................
Associate
Dated 27 May 2015
Date(s) of hearing 24 April 2015 Date final submissions received 26 May 2015 Applicant In person Counsel for the Respondent Ms E Ford Advocate for the Respondent Ms C Swain Solicitors for the Respondent Civil Aviation Safety Authority
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