ROBERTSON and CIVIL AVIATION SAFETY AUTHORITY

[2010] AATA 788

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2010] AATA 788

ADMINISTRATIVE APPEALS TRIBUNAL                   )

)  No 2009/5298

GENERAL ADMINISTRATIVE DIVISION		)
Re		WAYNE ROBERTSON

Applicant

And CIVIL AVIATION SAFETY AUTHORITY

Respondent

DECISION

Tribunal  M J Carstairs, Senior Member

Date           14 October 2010

Place           Brisbane

Decision The Tribunal affirms the decision under review.

.....................[Sgd].........................

Senior Member

CATCHWORDS

CIVIL AVIATION – Aircraft maintenance engineer licence – Applicant certified completion of maintenance – Applicant coordinated maintenance – Aircraft not airworthy as result of work done by others – Applicant responsible for work done by others – Endorsement of conditions on licence –  Decision under review affirmed.

Civil Aviation Act 1988 (Cth), ss 3A, 9, 9A, 98(3)(c)

Civil Aviation Regulations 1988 (Cth), regs 30, 42ZC, 42ZE, 42ZP, 269(1)(c), 269(1)(d); Schedule 6: paras 1.3, 2.1, 3.1, 3.3, 3.5

Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321

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

REASONS FOR DECISION

14 October 2010 M J Carstairs, Senior Member      

1. Wayne Robertson seeks review of a decision made by the Civil Aviation Safety Authority (“CASA”) to vary his aircraft maintenance engineer licence by placing certain conditions upon it.  The endorsement upon Mr Robertson’s licence means that he is now “limited to work performed by the licence holder under the control of a Certificate of Approval Holder and prohibited from certifying for completion of maintenance in relation to maintenance performed by some other person”. 

2. In other words, Mr Robertson may only certify for work he has carried out, and cannot supervise or certify the work of others.   

3. Mr Robertson maintains that the penalty is too harsh, and should be lifted. 

ISSUES

1. The issues are:

   § Did Mr Robertson fail in his duty with respect to any matter affecting the safe navigation or operation of an aircraft: reg 269(1)(c) of the Civil Aviation Regulations 1988 (“the CAR”)?

   § Is Mr Robertson “a fit and proper person” to have the responsibilities and to exercise and perform the functions and duties of a holder of the licence: reg 269(1)(d) of the CAR?

BACKGROUND

1. Mr Robertson was the Director and Company Secretary for Mareeba Aircraft Maintenance Pty Ltd (“Mareeba”). He has since retired from that position. Until late 2007 or early 2008, Mr Robertson was also Mareeba’s chief engineer. Mareeba held a certificate of approval (“CoA”) pursuant to reg 30 of the CAR, to carry out work on Class A and Class B aircraft.

2. Mr Robertson has been a licensed aircraft maintenance engineer (“LAME”) for over forty years, and a licensed commercial pilot since 1979. His licence as a LAME was first issued on 16 May 1968, and approves him under several entitlement categories including airframes, electrics, engines and instruments. As a consequence of Mr Robertson holding his licence he was, by virtue of reg 42ZC of the CAR, entitled to carry out maintenance on aircraft and engines within the specified categories and was entitled to certify for the completion of work within those categories.

3. Mr Robertson was issued with a show cause notice in November 2008, and a supplemental notice the following March alleging certain breaches.[1]

   [1]  Documents T16 and T21, respectively.

4. Three incidents are central to the matters now under review:

   §  Mareeba job number 330—the maintenance of a Cessna aircraft, registration mark VH-HGO, for a Supplemental Inspection Documents (“SIDs”)[2] check 1 and check 2, between 18 September 2006 and 13 January 2007.  The work, carried out by LAME Barry Smith and others employed by Mareeba, was coordinated by Mr Robertson, after which the aircraft was released to service and flew 100 hours in passenger carrying charter operations.

   §  Mareeba job number 397—the Cessna aircraft VH-HGO was booked in for further maintenance on 24 March 2007, the completion of which was certified on 14 April 2007.  This work included a 100 hourly inspection “check 1” carried out by Barry Smith, again coordinated by Mr Robertson.

   §  Mareeba job number 408—Cessna aircraft VH-HGO was booked in on 21 May 2007 for a “check 2” inspection. This work was carried out by Mr Robertson with the assistance of other (unlicensed) engineers at Mareeba, and certified complete by him on 28 May 2007. 

   [2]  A SID is a document of inspections, put out by the manufacturer of the aircraft, to address continued airworthiness and issues of fatigue in aging aircraft.

5. The problems with the servicing of Cessna aircraft VH-HGO first came to light in early April 2007, when the owner of the aircraft requested additional checks be carried out by two self-employed LAMEs, Shawn and Matthew Bailey (“the Bailey brothers”). The Bailey brothers prepared a report for the aircraft’s owner in the first instance, and later carried out corrective work on the aircraft. There is no need here to set out the full details of the problems found with the aircraft, itemised in detail by the Bailey brothers and others. These were comprehensively set out in the reviewable decision,[3] and were not seriously challenged by Mr Robertson. Rather, his challenge was directed at who should take responsibility for the errors.

   [3]  T24 at 166-171.

6. It is sufficient for present purposes that I accept the evidence given orally and in a written statement by Rodney James Nedwich, an airworthiness inspector with CASA, who, in February 2008, had audited Mareeba as the holder of a CoA conducting business as a maintenance organisation.  In summary, Mr Nedwich said[4] that he had observed maintenance rectification being carried out on Cessna VH-HGO at that time, as the Bailey brothers then were employed at Mareeba and had pointed out some of the deficient work to him.  Problems identified to him by the Bailey brothers included:

   §  the main landing gear pushrod/torque bolts had been installed in reverse causing damage because the threaded end of the bolt and split pin combination was fouling on the uplock bracket flange during retraction and extension of the undercarriage;

   §  a defect in the landing gear actuator, which was manifesting as a loud internal clicking and grinding noise when the actuator was operated.  This was the result of fitting bolts that were too long that then fouled the casing and internal gears, causing damage to the gear teeth.

   [4]  Exhibit R5.

7. In any event, it became necessary to issue a Special Flight Permit in September 2007 to fly the aircraft from Charters Towers to Mareeba, Shawn Bailey having determined that the aircraft was not airworthy due to damage resulting from the previous poor work, which had not been rectified.[5]

   [5]  T6 and T14.

8. Mr Nedwich said that the SIDs maintenance had been of poor quality; it should have been better overseen by Mr Robertson. Mr Nedwich stated that the defects were the direct result of poorly carried out work at the SIDs inspection of job 330.  He said that many of the deficiencies should have been obvious to Mr Robertson and, in his opinion, Mr Robertson was directly responsible as the one who coordinated and certified the completion of jobs 330 and 397, and who certified job 408 after being the only LAME involved.  

APPLICANT’S CASE

1. Mr Robertson maintained that he should be able to rely on a certification by Barry Smith, a LAME, that the work was done properly; and that in all the circumstances the penalty applied by CASA was  too harsh.

2. It was clear that Mr Robertson did not dispute that the work done on Cessna VH-HGO was performed poorly, and that as a result the aircraft was not airworthy.  His position on this was made plain in his (then) solicitor’s responses to the show cause notice, acknowledging that the work was “poorly done”[6] and had “appalled” Mr Robertson.[7]  In his statement dated February 2010,[8] Mr Robertson said that during his career he had employed several LAMEs but had never come across that level of incompetence.  Nevertheless, Mr Robertson said he was not liable for work that he had not undertaken personally, and it was neither required nor possible to physically supervise everything done by another LAME by looking, as it were, “over his shoulder”. Mr Robertson submitted that, having hired the appropriate professional, he was not required to do the job himself.  

   [6]  T17 at 147.

   [7]  T17 at 148.

   [8]  Exhibit A1.

3. Mr Robertson’s main argument was that he should not incur the penalty.  He submitted that he should be able to rely on certification by a LAME, otherwise there was no point in having a licensing system.  Mr Robertson said that his own job at Mareeba simply was to provide Mr Smith with everything he needed to complete the job: he was on-site every day if Mr Smith needed to ask him anything, but Mr Smith never did.  Mr Robertson said that at no time did he realise that Mr Smith was out of his depth in this work, although he said he was aware that Mr Smith had never undertaken a SIDs inspection before and had previously only worked on helicopters.

4. I accept the evidence presented by Mr J Williams, CASA’s “Team Leader Airworthiness, Northern Region”, that the poor quality of the workmanship in the conduct of the SIDs program indicated that Mr Robertson did not exercise sufficient oversight to ensure that the work was performed appropriately. Mr Williams said that it was particularly troubling in the context of air safety that the deficiencies in job 330 were not detected when further work was carried out for jobs 397 and 408. The defects were such as should have been detected by proper inspection. Mr Williams said that under the CAR the responsibility rests with the chief engineer, and that Mr Robertson did not exercise proper oversight. In any event, Mr Robertson was the only LAME on job 408.

LEGISLATION

1. Section 3A of the Civil Aviation Act 1988 (“the Act”) states that the main object of the Act is “to establish a regulatory framework for maintaining, enhancing and promoting the safety of civil aviation, with particular emphasis on preventing aviation accidents and incidents”. Section 9A directs that CASA, in exercising its powers, is to treat the safety of air navigation as the most important consideration.

2. The functions of CASA and the regulation of civil aviation safety are set out at s 9 of the Act,[9] and include:

   §  developing and promulgating appropriate aviation safety standards;

   §  developing effective enforcement strategies to ensure compliance; and

   §  issuing certificates, licences, registrations and permits.

   [9] Citing s 9(1)(c),(d) and (e) of the Act.

3. The Act also provides for regulation-making powers to give effect to the Act, including powers to grant, vary, suspend or cancel the licences and permits of those performing functions in relation to the maintenance of aircraft.[10] Regulation 269 of the CAR provides possible grounds for varying, suspending or cancelling: that the holder had failed in his or her duties with respect to a matter affecting the safe navigation and operation of an aircraft; and/or that the person is found not to be “a fit and proper person” to carry out the responsibilities that attach to the licence.

   [10] Section 98(3)(c) of the Act.

4. Schedule 6 of the CAR, which provides for the CASA system of certification of maintenance, sets out some of the duties of the certifying LAME. Paragraph 1.3 of Sch 6 provides:

   … maintenance performed by a person who is permitted by paragraph 42ZC (3) (b) or 42ZC (4) (c) to carry out maintenance under the supervision of a person who holds an aircraft maintenance engineer licence is to be taken to have been performed by the person who supervised the maintenance and not by the first-mentioned person.

5. Paragraph 2.1 of Sch 6 also provides that certification must be made for each stage of maintenance. There are strict requirements for the matters that must be included in a certification. The responsibility of the person who coordinates maintenance is to ensure that each stage is performed by a person who is permitted by the CAR, reg 42ZC, to carry out the maintenance and that that person certifies for the completion of each stage. I accept Mr Williams’ evidence that the system of supervision and the requirements for certification act as a “safety net” providing assurance that the vast workload involved in maintaining aircraft is carried out systematically.

SHOULD MR ROBERTSON’S LICENCE BE VARIED?

1. The respondent has not exercised the harshest powers available under reg 269 of the CAR. This seems to be in recognition of Mr Robertson’s years of technical experience and because any shortcomings evidenced on the facts are best addressed by imposing a limitation on his licence such that he does not coordinate maintenance; does not supervise unqualified staff; and only performs maintenance in a quality control system with the oversight of a CoA holder.

2. Mr J Rule, for CASA, submitted that Mr Robertson’s attitude was such that he was not sufficiently mindful of the extent of the obligations imposed by Sch 6 and of the CAR generally. He submitted that Mr Robertson had breached the CAR with respect to his role as job coordinator. I accept this submission, on the basis of the proven (and accepted) errors in certification. Mr Robertson should only have certified the work as complete when satisfied that it was of good quality. Mr Robertson acknowledged in cross-examination that a number of certifications were made long after particular stages of job 330 had finished. Mr Robertson also acknowledged that he had been unaware that Mr Smith had certified work that was not endorsed on his licence for him to undertake.

3. In the case of job 330, there was no question that the work was poorly carried out. I accept that responsibility for this ultimately rests with Mr Robertson. I also accept the evidence of Mr Nedwich that Mr Robertson failed to notice problems when he had the opportunity to do so in the course of job 397, and in particular in job 408 where he personally worked on the aircraft as LAME.  Mr Robertson has acknowledged that there were deficiencies in the worksheet controls at Mareeba, since rectified.[11]

   [11]  Exhibit A1, p 6.

4. The respondent’s case is that, under the terms of the Act and the CAR, Mr Robertson bore ultimate responsibility:

   §  Mr Robertson was the chief engineer of Mareeba, and part of his role was to carry out quality assurance through inspections. The work performed on Cessna VH-HGO was so deficient that it would have been immediately obvious had any kind of inspection being carried out.

   § Mr Robertson had coordinated the airframe category of the SIDs inspection and was required to have performed part of that inspection himself: paras 3.1 and 3.5 of Sch 6 of the CAR.

   § As the coordinating LAME, Mr Robertson was required by the CAR to be satisfied that each stage/category of the maintenance had been properly completed.

   § Under reg 42ZP of the CAR, Mr Robertson could only certify the completion of maintenance if it had been performed in accordance with the relevant approved maintenance data.

5. In other words, the respondent's case was that Mr Robertson was not exercising sufficient oversight of the maintenance work performed by others so as to be in a position to properly certify that the work was being performed in accordance the CAR and, indeed, to certify that work required to be performed had been carried out. In the end what was crucial was that the aircraft be left in an airworthy state.

6. With respect to the questions arising under reg 269(1)(c) of the CAR (whether Mr Robertson failed in his duties as the holder of the licence with respect to any matter affecting the safe operation of an aircraft), I am satisfied that Mr Robertson failed in the duties attaching to him as chief engineer at Mareeba. Regulation 42ZE of the CAR provides that a person who carries out maintenance must ensure that the completion of the maintenance is properly certified. In Mareeba’s case, this meant in accordance with Sch 6 of the CAR. Within Sch 6, the responsibilities of the coordinator of maintenance were to ensure that work in a category was carried out by a person permitted to carry it out, and to ensure that all required maintenance was completed: para 3.3.

7. The requirements of the CAR, which Mr Robertson had to satisfy because he was chief engineer at Mareeba, could not be satisfied if he was only prepared to hire a person, supply equipment for the task, and not then monitor the work being carried out. I am satisfied that Mr Robertson must share the responsibility for the deficiencies in the SIDs inspection under job 330, deficiencies which remained undetected during the work for jobs 397 and 408. In that regard, I accept Mr Nedwich’s evidence that Mr Robertson, as supervising LAME, should have detected the defects given their extent and given that many would have been observable with the naked eye.

8. It was irregular, as Mr Robertson came to accept at the hearing, that all the job sheets for job 330 were signed off on the same day, even though the work was carried out over three months. A serious breach occurred when Mr Smith signed off on an electrical inspection, which he was not authorised to do under his licence. This was a breach of reg 42ZC and para 3.3 of Sch 6 of the CAR.

9. Accordingly, I accept that Mr Robertson failed to fulfil his duties under the CAR as the coordinating LAME. As a consequence some endorsement should be made on his licence.

10. A fit and proper LAME is one who has an appreciation of the statutory responsibilities and who is responsible for their discharge.[12] In Re Taylor and Department of Transport,[13] the Tribunal was considering the similarly expressed predecessor to reg s 269 of the CAR and said:

    [T]he enquiry whether the applicant is a “fit and proper person” is directly focused upon the fitness and the propriety of the applicant exercising the “responsibilities” and performing the “functions” and “duties” of the holder of a licence …

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

    [12]Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 349.

    [13](1978) 1 ALD 312 at 321.

11. Mr Robertson’s previous infraction in 2000 resulted in a variation on his licence for a period of six months. This was for failures to abide by the CAR, with some of the incidents entailing non-compliance with certification of maintenance—not dissimilar circumstances to the matters established on the facts here.[14] At that earlier time, it appears, Mr Robertson undertook to renew his commitment to exercising the responsibilities and duties of his licence in accordance with the Act and the CAR.

    [14]  Document T3.

12. Section 9A of the Act emphasises that the primary consideration is the safety of air navigation. I take into account that Mr Robertson released the aircraft to fly when the work that had been done on it was substandard. This was a serious lapse and compromised the safety of the aircraft. It was evident at the hearing that Mr Robertson continues to struggle with accepting the need for diligent compliance with the rules. It is not a question of his competence in his trade.

13. I am satisfied that Mr Robertson is not a fit and proper person to exercise the full responsibilities and duties associated with holding an aircraft maintenance engineer licence.  In the circumstances, Mr Robertson’s licence should have an endorsement limiting his work to that performed by him under the control of a CoA holder, and prohibiting him from certifying for completion of maintenance not carried out by him.

1. I note the respondent’s attitude as expressed at the hearing was that these conditions need not remain in place indefinitely. CASA acknowledged that, after a suitable period of monitoring and compliance, it may be appropriate to revoke the endorsements on Mr Robertson’s licence. I am satisfied that the limitations currently imposed provide an appropriate response to Mr Robertson’s infringements of the Act and the CAR. The variation of Mr Robertson’s licence is consistent with the paramount consideration of air safety.

DECISION

1. The Tribunal affirms the decision under review.

I certify that the 36 preceding paragraphs are a true copy of the reasons for the decision herein of M J Carstairs, Senior Member.

Signed:   .........................[Sgd]..............................................
  Mátyás Kochárdy, Associate

Dates of Hearing  2 & 3 August 2010
Date of Decision  14 October 2010
The Applicant was self-represented

Solicitor for the Respondent     Mr J Rule (Civil Aviation Safety Authority, Legal Services Division)