SNOOK Applicant And CIVIL AVIATION SAFETY AUTHORITY
[2010] AATA 582
•6 August 2010
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2010] AATA 582
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2008/2804, 2008/5682
GENERAL ADMINISTRATIVE DIVISION ) Re PETER JOHN SNOOK Applicant
And
CIVIL AVIATION SAFETY AUTHORITY
Respondent
DECISION
Tribunal Mr Egon Fice, Senior Member, Mr Warren Evans, Member Date6 August 2010
PlaceWestern Australia
Decision 1. The decision under review dated 24 June 2008 is set aside. The applicant’s private pilot licence is cancelled.
2. The decision under review dated 27 November 2008 to cancel the applicant’s maintenance engineer licence and Certificate of Approval is affirmed.
3. The stay orders made by this Tribunal under s 41(2) of the Administrative Appeals Tribunal Act 1975 are revoked.
...................[signed]...........................
Senior Member
CIVIL AVIATION –private pilot licence – aircraft maintenance engineer licence – certificate of approval – suspension or cancellation of licence or certificate – major defect or damage – fire in cockpit – defect reporting – fit and proper person to hold a private pilot licence – failure of duty with respect to matters affecting safe navigation or operation of aircraft – incompetent maintenance – maintenance work not authorised by AME licence or CoA – maintenance limits imposed by AME licence and CoA – use of out of date maintenance schedule – failure to observe changed maintenance requirements – compliance with Airworthiness Directives – certification of completion of maintenance – certification of co-ordination of maintenance – recording of parts fitted to aircraft – compliance with maintenance data – compliance with manufacturers maintenance schedule – status of Service Bulletins – calculation of aerobatic hours – fatigue life – nomination as senior LAME on CoA application – acceptance of nomination by conduct – alteration of entries on worksheets – fit and proper person to hold an AME licence and CoA
Administrative Appeals Tribunal Act 1975 s 41
Civil Aviation Act 1988 ss 3, 9, 9A, 20AA, 20A, 20AB, 31A
Civil Aviation Safety Regulations 1998 regs 21.197, 39.001, 202.170
Civil Aviation Regulations 1988 regs 2, 2A, 5.09, 30, 31, 33, 35, 38, 41, 42A, 42B, 42G, 42M, 42U, 42V, 42W, 42ZC, 42ZE, 47, 50, 51, 51A, 133, 135A, 269, 269, 301, Schedules 5, 6, 8
Australian Broadcasting Tribunal v Bond and Ors (1990) 94 ALR 11
Civil Aviation Safety Authority v Central Aviation Pty Ltd [2009] FCA 49
Re Brazier and Civil Aviation Safety Authority [2004] AATA 313
Re Gerald Keith Repacholi and Civil Aviation Safety Authority [2003] AATA 57
REASONS FOR DECISION
6 August 2010 Mr Egon Fice, Senior Member,
Mr Warren Evans, Member1. Mr Snook is a licensed aircraft maintenance engineer (LAME) and he conducts an aircraft maintenance business under the business name Aeronautique Australia (Aeronautique). He holds a Certificate of Approval (CoA) to conduct that maintenance. Mr Snook also holds a private pilot licence.
2. On 24 June 2008 a delegate of the Civil Aviation Safety Authority (CASA) decided to:
(a)suspend Mr Snook’s private pilot licence for a period of six months, subject to Mr Snook successfully passing a flight test;
(b)suspend Mr Snook’s aircraft maintenance engineer licence (AME licence) for a period of 12 months and subject to him having successfully completed a number of courses or examinations; and
(c)suspend Mr Snook’s CoA, subject to Mr Snook undergoing risk and safety management training and discussions with CASA’s manager Western Region regarding his duties and responsibilities in management, planning and oversight of his approved maintenance organisation.
3. On 25 June 2008 Mr Snook lodged an application seeking review of CASA’s decision by the Tribunal. Therefore, in accordance with s 31A of the Civil Aviation Act 1988 (the Act), the operation of CASA’s decision was automatically stayed for a period of five business days after the day CASA notified Mr Snook of the decision. Upon making an application to the Tribunal for review, pursuant to s 31A(5) of the Act, the automatic stay continued in effect until the end of the 90th day after CASA notified Mr Snook of its decision. The statutory stay of CASA’s decision ceased to have effect on 22 September 2008.
4. On 12 September 2008 Mr Snook lodged an application with the Tribunal pursuant to s 41(2) of the Administrative Appeals Tribunal Act 1975 (the AAT Act). He sought an order that the Tribunal stay the operation and implementation of CASA’s decision until the final hearing and determination of his application to the Tribunal. On 25 September 2008 the Tribunal granted the stay order sought by Mr Snook, which was to remain effective until 12 December 2008. The stay order was limited to this date because on 4 September 2008 CASA issued a second show cause notice to Mr Snook, requiring him to show why his private pilot licence, AME licence and the CoA should not be varied, suspended or cancelled.
5. The second show cause notice arose out of a number of matters which came to the attention of CASA after it decided to suspend Mr Snook’s private pilot licence, AME licence and his CoA on 24 June 2008. However, at the time of hearing Mr Snook’s stay application, he had not yet responded to the 4 September 2008 show cause notice. The Tribunal anticipated he would do so and that CASA would make a decision by 12 December 2008.
6. On 27 November 2008 CASA decided to cancel Mr Snook’s AME licence and CoA. On 1 December 2008 Mr Snook lodged with the Tribunal an application for review of that decision. Because of the effect of s 31A(5) of the Act, CASA’s decision of 27 November 2008 was stayed until 26 February 2009.
7. When this matter came back before the Tribunal on 12 December 2008, Mr Snook urged the Tribunal to extend the stay. The Tribunal granted this extension to 26 February 2009, so that it expired on the same date as the statutory stay under the second show cause decision. CASA urged the Tribunal not to extend the stay made on 25 September 2008 and submitted that it should consider, on the material before it at that time, whether it would agree to further stay the 27 November 2008 CASA decision taking effect after the statutory stay period had expired. Because the applicant objected to that course being taken, the Tribunal decided to extend the stay granted on 25 September 2008 to 26 February 2009.
8. After hearing submissions from both parties on 25 February 2009, the Tribunal ordered, on 26 February 2009, that the stay in matter number 2008/2804 be extended until its conclusion. It also ordered that the statutory stay which was then in effect in matter number 2008/5682 be extended until the conclusion of that matter. The Tribunal did so on the conditions that: (a) Mr Snook provide to CASA’s regional manager in Perth, on a weekly basis, a schedule of planned maintenance; and (b) that he permit CASA’s officers to attend the premises of Aeronautique on reasonable notice to inspect maintenance conducted by Mr Snook and any relevant maintenance records. At that time, the Tribunal anticipated the final hearing of both matters would take place in March 2009. However, for various reasons, it was not possible to commence the hearing in both applications until 9 February 2010.
9. The first matter, number 2804, relates to the operation and maintenance of an SUD Aviation aircraft model GY 80-150, which is registered as VH-YOG (aircraft YOG). Matter number 5682 involves maintenance activity conducted by Mr Snook under his CoA and his involvement in the maintenance of an aircraft for another AOC holder, Airfast Pty Ltd (Airfast).
10. In respect of matter number 2804, we are required to determine:
(a)regarding Mr Snook’s private pilot licence, whether he has failed to satisfy or is capable of continuing to satisfy any requirement prescribed by, or specified under, the Civil Aviation Regulations 1988 (CAR) relating to the holding of that private pilot licence;
(b)whether, as the holder of a private pilot licence, he has failed in his duty with respect to any matter affecting the safe navigation or operation of an aircraft;
(c)whether he is a fit and proper person to hold a private pilot licence;
(d)regarding his AME licence and CoA, whether Mr Snook has failed in his duty with respect to any matter affecting the safe navigation or operation of an aircraft;
(e)regarding his AME licence and CoA, whether he is a fit and proper person to have the responsibilities and exercise and perform the functions and duties of a holder of AME licence or CoA; and
(f)if we find that one of the grounds referred to above exists, whether the preferable decision is to suspend or cancel the licences and authority referred to above.
11. As for matter number 5682, after examining the allegations made by CASA regarding the maintenance of a number of other aircraft, we are required to determine:
(a)whether Mr Snook has failed in his duty with respect to any matter affecting the safe navigation or operation of an aircraft;
(b)whether he is a fit and proper person to have the responsibilities and exercise and perform the functions and duties of a LAME and a CoA holder; and
(c)if we are satisfied that the grounds above exist, whether the preferable decision is to suspend or cancel Mr Snook’s AME licence and CoA.
YOG INCIDENT
12. Mr Dennis Coxall, the pilot of aircraft YOG, provided a statement which was admitted into evidence. He said that on 15 January 2008, shortly after takeoff from Bunbury, he smelt and saw smoke in the cockpit. He thought it smelt like an electrical fault and therefore he turned off all of the electrics, but the smoke persisted. He then turned back towards clear ground in case he needed to perform a forced landing. The smoke continued to develop in the cockpit and he reduced the throttle to idle, then subsequently turned the engine off completely. When he turned the engine off, the smoke stopped. He continued to glide towards clear ground descending at about 500 feet per minute. At about 500 feet above ground level, he restarted the motor to climb back to a safe altitude but the smoke reappeared in the cockpit. He climbed to about 1500 feet and turned the engine off again. He continued this process of gliding with the engine turned off, restarting the engine and climbing back to altitude before gliding again.
13. When he was within landing distance of a paddock which he thought was suitable for a forced landing, he put the aircraft down. After landing, he could not find any fault with the aircraft but decided to leave the aircraft in the paddock and continued his journey to Kalgoorlie by road. He telephoned a friend, Mr Blair Howe, and asked him to assist in organising a means of getting the aircraft out of the paddock while he was away in Kalgoorlie.
14. On the following day, 16 January 2008, Mr Coxall received a telephone call (presumably from Mr Howe) to say that Mr Snook (who had come down from Perth) had found that the problem was a missing tailpipe. Mr Snook had considered the aircraft safe to fly and he flew the aircraft the short distance back to Bunbury airport. In his written statement, Mr Coxall did not say that he spoke directly with Mr Snook at any time between 15 and 16 January 2008.
15. Mr Coxall’s account of the incident was in accordance with the evidence of Mr Hadyn Siggins, a flying operations inspector in the Western Region office of CASA. According to Mr Siggins’ statement dated 17 August 2009, on 17 January 2008 he received a telephone call from Mr Coxall who recounted essentially what was set out in his statement. Mr Siggins provided some additional evidence. Attached to Mr Siggins’ statement was a file note, which he said he recorded on 17 January 2008 from handwritten notes made in the course of his conversation with Mr Coxall. The file note states:
…the carpet on the RHS [right hand side] floor appeared to be burning.
Also recorded in that file note is the fact that Mr Snook came, inspected the aircraft, and flew it back to Bunbury. Mr Siggins also noted that initial reports were that the exhaust was faulty and it had directed hot air at the underside of the aircraft causing the carpet/structure to burn/smoke.
16. In his recommendations, Mr Siggins noted that the Airworthiness Branch should ensure that Mr Snook had made the appropriate reports. Mr Siggins also recommended that the Flight Operations and Airworthiness branches should assess whether the inspection and rectification of the damage and subsequent flight out of the paddock by Mr Snook was appropriate. In his statement, Mr Siggins said that after he had the conversation with Mr Coxall, he appointed another flying operations inspector, Mr Gary Presneill, in conjunction with an airworthiness inspector, to the task of investigating that incident.
17. Mr Siggins provided Mr Presneill with written instructions in which he said Mr Coxall mentioned that the fire was caused by the muffler baffle being loose and setting the carpet on fire. He also indicated that Mr Snook was dealing with the aircraft. He asked Mr Presneill to investigate whether the flight by Mr Snook raised any safety issues, as it appeared he had flown the aircraft when he was aware of major damage. Mr Siggins also mentioned that he had advised Mr Des Byfield, an airworthiness inspector, that the incident may have engineering issues. Apparently, Mr Byfield passed the investigation onto another airworthiness inspector, Mr Ron Green.
18. Mr Green managed to contact Mr Snook by telephone on 22 January 2008 when Mr Snook was at Bunbury. According to his witness statement dated 21 July 2009, Mr Green said that immediately after that conversation with Mr Snook he made a file note which accurately stated what Mr Snook told him in the course of that conversation. The relevant points made in the file note are:
(a)Mr Snook was told (presumably by Mr Coxall) that he experienced fire/smoke in the cockpit thought to be from the electrical system;
(b)on inspecting the aircraft, Mr Snook could not fault the electrical system and a ground run of the aircraft indicated all appeared normal;
(c)on removing the engine cowls, Mr Snook found that the exhaust tailpipe had separated from the muffler and that exhaust gas had been blowing onto the firewall;
(d)Mr Snook determined it was safe to fly the aircraft to Bunbury (a 10 minute flight);
(e)when flying the aircraft to Bunbury, he experienced carbon monoxide and smoke in the cabin and he said that he flew with reduced power;
(f)on arrival at Bunbury, Mr Snook said it was evident that trim on the firewall had deteriorated as a result of heat from the exhaust and that this was the source of smoke in the cabin originally reported;
(g)on being asked if he had submitted a defect report, Mr Snook said he had not and Mr Green told him that he was required to do so; and
(h)Mr Green advised him that he considered the aircraft had suffered a major defect because it resulted in smoke/fire in the cockpit and the pilot (Mr Coxall) had shut down the engine.
19. Mr Green also asked Mr Coxall if he had endorsed the maintenance release with the details of the defect. Mr Coxall said he had not. Mr Green subsequently received a telephone call from Mr Coxall on 29 January 2008. Mr Coxall told him he had returned from his work commitments in Kalgoorlie and that he had the aircraft maintenance release with him. Mr Coxall said he had just made an entry regarding the smoke in the cockpit incident and the forced landing at Brunswick Junction, which is about 10 nautical miles from Bunbury.
20. On 30 January 2008 Mr Green attended Aeronautique’s hanger at Jandakot airport and had a discussion with Mr Snook. Mr Snook handed to him the front right side floor carpet, which Mr Green described as burnt right through. Mr Snook also gave Mr Green the muffler, aircraft logbooks, the illustrated parts catalogue and two maintenance manuals for the aircraft. Mr Green took photographs of the aircraft parts and those were in evidence.
21. On 1 February 2008 Mr Green went to Bunbury airport to inspect the aircraft and he met Mr Coxall. He took some further photographs of the aircraft (which are also in evidence) and he examined how the muffler fitted into the exhaust system of that aircraft. The illustrated parts catalogue discloses that a tailpipe should be attached to the rear of the muffler. The tailpipe is angled at about 45 degrees from the point where the pipe exits the muffler, so as to direct exhaust gases away from the cockpit firewall into the slipstream beneath the aircraft.
22. The photographs taken by Mr Green showed the replaced muffler inserted into the exhaust pipes from the engine. Across the centre of the muffler appeared to be a bracket system, which was attached to what appeared to be a rubber strap, connected above the muffler vertically to either the airframe or some other part of the aircraft. The rear of the muffler was close to the firewall on the co-pilot’s side (RHS) of the cockpit. The firewall slopes downwards at an angle of about 45 degrees from the horizontal in a rearwards direction. The rear of the muffler was close to the firewall, with the exit pipe being no more than 10 to 12 centimetres from the firewall. The muffler itself is not horizontal, as it slopes slightly downwards, which results in the rear end of the muffler being at a slight angle to the horizontal, although not significantly so. It is immediately apparent that the missing tailpipe is designed to attach to the rear of the muffler and then project downwards at about the same angle as the firewall, thereby directing hot exhaust gases away from it and underneath the aircraft into the slipstream.
23. The photographs taken by Mr Green also show the very clear effect that the exhaust gases, impacting on the cockpit firewall, had on the carpet and insulating material inside the cockpit. The carpet was extensively damaged and in fact had a large hole in the centre of it, where the rubberised backing and carpet material had completely disappeared. The photographs also reveal the effect of extreme heat on the external firewall in the engine compartment. The metal surface was seriously scorched, indicating the application of intense heat.
24. On examining the aircraft maintenance records, Mr Green became aware that Mr Snook had reinstalled the exhaust assembly on the aircraft at the periodic inspection before the aircraft was returned to service on 19 December 2007. Further enquiries also revealed that the muffler had cracks welded at the point at which the tailpipe attached to the muffler. The nature of the cracks was consistent with vibration, as small cracks had emanated from the major break. Mr Green obtained this information from Mr Gavin Trotter, who performed the welding. Mr Green also found that the tailpipe itself was not supported in any way apart from being welded to the rear of the muffler.
25. CASA’s investigations of this incident revealed two major concerns. The first related to Mr Snook exercising the privileges of his private pilot licence to fly the aircraft from the paddock at Brunswick Junction to Bunbury to enable repairs to be undertaken. The second was directed to the maintenance conducted by Mr Snook 3.2 hours before the tailpipe failure.
concerns regarding mr snook’s private pilot licence
26. Mr Snook testified that on 15 January 2008 he received a message that aircraft YOG had landed in a paddock after the pilot reported smoke in the cockpit, which he believed was caused by an electrical fault. Mr Snook was asked if he could go to where the aircraft had landed and rectify the problem. In his witness statement dated 12 November 2009, Mr Snook said that on inspecting the aircraft, he determined that the muffler had failed in exactly the same place it had previously failed and been subsequently repaired. He said he conducted a very thorough inspection of the aircraft and could find no fault with the electrical system.
27. Because he had no contact with Mr Coxall before inspecting the aircraft, Mr Snook said that an electrical fault might have been the problem and that was on his mind rather than the exhaust system. Nevertheless, he said he gave the aircraft an extremely thorough inspection, particularly the engine compartment. Mr Snook disconnected the battery when he was examining the aircraft and so he reconnected it and switched the master switch on. He waited to see if there was any smoke or if any circuit breakers popped. He said that all was normal. He then did an engine run including what he described as a full power run for about three to five minutes and, to his amazement, there was no sign of any problems at all. He was aware that the tailpipe was missing. He said that he was asked only to inspect the aircraft and not to fly it to Bunbury.
28. After conducting a ground test of the aircraft, Mr Snook telephoned Mr Bob Mann at Bunbury airfield and told him that in his opinion, it was possible to fly the aircraft out of the paddock to Bunbury. According to Mr Snook’s evidence, he suggested to Mr Mann that the chief flying instructor from the Bunbury Flying Club could come and fly the aircraft back to Bunbury. However, he was told that the chief flying instructor was not available and Mr Mann suggested that he fly the aircraft. Mr Snook’s evidence was:
So I thought, “Well, that’s interesting,” so I considered my options and felt that I’ve had a certain amount of experience in situations like this, so I said, “Well, I certainly can handle it. I believe that the aeroplane is – I can’t find a fault with the plane.”
29. Having decided to fly the aircraft to Bunbury, Mr Snook said he went back to the aircraft, started the engine and gave it a good run. He said he taxied up to a fence, which was hedged by some large trees, and then gave the engine a full power run while standing on the brakes. According to Mr Snook, he held it for at least a couple of minutes before releasing the brakes and conducting a short-field takeoff. Mr Snook said there was no problem with the aircraft in the course of his full power run. He said the aircraft became airborne very quickly and at about 100 feet altitude, he started a gentle turn to the left.
30. At the commencement of the turn, he said that he experienced a significant amount of foul air and smoke in the cockpit. Mr Snook said his first reaction was to land the aircraft straight ahead but there were some obstacles which prevented him from doing so. He said he then opened a small storm window to make sure he could continue breathing. He continued the climb and when he reached sufficient altitude, he started to reduce power and noticed that the smoke also began to reduce.
31. In his written statement, Mr Snook said that the smoke largely dissipated when he opened the small storm window and, rather than land the aircraft back in the paddock, he considered the safest decision was to continue the short flight to Bunbury rather than to complete a circuit and land in the paddock. However, in his evidence-in-chief, he significantly altered his account at this point.
32. In his evidence-in-chief, he said that when the smoke began to reduce, he nevertheless completed a circuit including a downwind leg and, when lined up on finals, thought that the trees on the approach path were very high and he became aware that the paddock was short. He said he then reassessed the conditions, including the amount of smoke in the cockpit and he decided to continue a gentle climb over the field and completed several circuits of it. He said he remained overhead the field, flying quite slowly with reduced power and believed he was more in control of the situation as there was little smoke from then onwards. He said that he opened the co-pilot’s side door and all the remaining smoke disappeared out of the door. He then decided that: I was now like flying a plane without any problem – any issues, and concerned about landing in the paddock from which he had taken off, he elected to continue the flight to Bunbury.
33. In his evidence-in-chief, Mr Snook said that after landing at Bunbury, he remained unaware of the origin of the smoke in the cockpit. He said he looked in the engine compartment again and saw no signs of anything amiss. On going back to the cockpit, he noticed that the carpet against the co-pilot’s side firewall was damaged. It was only then that it dawned on him that it was the cause of the smoke. He then said:
…my curiosity was satisfied as to what had generated the smoke and I couldn’t understand why, because under normal circumstances, in just about every aeroplane that exists, the firewall material is of such a calibre that it would – in this particular event, would have protected anything inside the cabin from any heat from the engine compartment.
34. Mr Snook was highly critical of the fact that glued to the underside of the carpet was a foam insulating material which he described as unauthorised. It is not clear what Mr Snook meant by that expression. Under cross-examination, Mr Snook made it clear he thought that the unauthorised material was the cause of the problem. He believed that CASA was now blaming him for somebody else’s mistake. When it was put to Mr Snook that he made no mention of the foam material in the defect report he finally submitted on or about 29 January 2008, Mr Snook said he could not remember but thought he would have. When the contents of that report were shown to him, Mr Snook simply said he should have put it in. When the question was put to him again in cross-examination, he said that in any event, he considered it to be incorrect maintenance and not a defect.
35. Mr Siggins, in a site inspection surveillance report dated 17 January 2008, recorded what Mr Coxall told him about his forced landing in YOG. Mr Siggins recorded that Mr Coxall told him that he shut down the electrics but it had no effect on the smoke he was experiencing in the cockpit. He also noted that Mr Coxall told him that the carpet on the right hand side floor appeared to be burning. After Mr Coxall shut down the engine, the fire/smoke stopped. He also recorded that Mr Snook came and inspected the aircraft and flew it back to Bunbury. His report stated it appeared from initial reports, that the exhaust was faulty and had directed hot air at the underside of the aircraft causing the carpet/structure to burn/smoke.
36. In his evidence-in-chief, Mr Snook said that where the rear of the muffler pointed towards the firewall, it was angled at about 45 degrees, being a similar angle to that of the firewall itself. That statement is not correct. If that were the case, exhaust gases exiting the muffler would not impact on the firewall at all. Not only was there clear evidence of severe scorching of the firewall, but the photographs in evidence clearly indicate that the muffler is angled at only about five to 10 degrees below the horizontal at the point where it is about 10 to 12 centimetres from the firewall. If we were to accept that the angle was 10 degrees, then the angle at which the exhaust gases exiting the muffler would impact the firewall is about 35 degrees. It is nothing like that suggested by Mr Snook in his evidence. In other words, there was a direct blast from exhaust gases against the firewall of the aircraft.
37. In his written statement, Mr Snook said he had intended to record the defective muffler and the total time of the flight in the maintenance release. However, Mr Coxall had taken the maintenance release with him to Kalgoorlie. As a result, Mr Snook did not have access to it when he arrived to inspect the aircraft and decided to fly it to Bunbury.
38. CASA submitted that in flying the aircraft from the paddock near Brunswick Junction to Bunbury, Mr Snook failed in his duty as a pilot with respect to a matter affecting the safe navigation or operation of an aircraft. That was because:
(a)Mr Snook flew the aircraft in circumstances where he knew it was suffering from a defect which he was unable to determine. He also acted with reckless disregard to the possibility that the defect might be major and could lead to a loss of control in flight as a result of an engine failure, an in-flight fire or incapacitation of the pilot;
(b)Mr Snook commenced a flight with a known defect;
(c)Mr Snook exposed himself to total or partial incapacitation by continuing the flight to Bunbury in the presence of a significant quantity of smoke in the aircraft cockpit; and
(d)Mr Snook flew over residential areas near Bunbury, thereby exposing persons and property on the ground to danger.
39. In its statement of facts and contentions, CASA alleged that Mr Snook had contravened s 20AA(4) and s 20A of the Act; and CAR 50 and 133(1)(d). However, these contraventions did not become part of CASA’s final submissions. Although not expressly stated, we understood that to be because CASA could not rely on CAR 269(1)(a) for the decision to cancel Mr Snook’s private pilot licence.
40. Although CAR 269(1)(a) can form the basis for a suspension decision, without conviction by a court of an offence against a provision of the Act or the CARs, CASA cannot cancel a licence. Nevertheless, those breaches did form one of the grounds upon which CASA made the first decision in matter number 2804 to suspend Mr Snook’s private pilot licence.
41. As we understood Ms Macdonnell of counsel, who appeared on behalf of CASA, CASA now considers that its decision to suspend Mr Snook’s private pilot licence was incorrect and instead, the Tribunal should decide to cancel that licence. It seems to us that if we arrive at a decision favourable to Mr Snook on the cancellation decision, we should return to the suspension decision in order to determine whether that was the preferable decision.
42. Mr Snook’s decision to fly aircraft YOG from the paddock near Brunswick Junction to Bunbury does cause us grave concern about his suitability to hold a private pilot licence.
43. Mr Snook initially went to Bunbury and then to Brunswick Junction to examine the aircraft and to identify, and possibly repair, a defect reported by Mr Coxall. The very fact that Mr Coxall made a forced landing in a paddock some 10 miles from Bunbury after reporting smoke in the cockpit is ample evidence that the aircraft was suffering from a serious defect. If that were not the case, there is no apparent reason why Mr Coxall would not have returned to Bunbury. According to Mr Snook, he thoroughly examined the aircraft but could not identify the cause of the smoke Mr Coxall said he experienced. This examination was carried out in Mr Snook’s capacity as a LAME. At this point in time, as we understood Mr Snook’s evidence, he had not made a decision to fly YOG to Bunbury. Mr Snook said that in the course of his inspection, he did observe the tailpipe was missing from the rear of the muffler.
44. Furthermore, in his evidence-in-chief, Mr Snook said he inspected the firewall and noticed it was damaged (presumably by heat). We have no doubt that the scorching on the firewall would have been evident to Mr Snook upon his examination, given the fact that Mr Coxall reported smoke in the cockpit. To produce that outcome, significant heat must necessarily have been applied to the firewall. In fact, Mr Green’s evidence was that the peak exhaust gas temperature for an engine of the type fitted to aircraft YOG was in the region of 1,450 degrees Fahrenheit. This evidence was undisputed. As an engineer, we believe Mr Snook was either aware of that or, if not, he most certainly should have been.
45. Having observed that the tailpipe was missing; that very hot exhaust gases had scorched the firewall; and that Mr Coxall decided to make an emergency landing in a paddock as a result of smoke in the cockpit, it is inconceivable to us that a competent LAME would not have connected the reported smoke with the extensive signs of extreme heat applied to the firewall.
46. In our view, it would have been obvious to a LAME and a pilot that the cause of the severe scorching on the firewall was due to the missing tailpipe. Its very purpose was to direct hot exhaust gases away from the firewall. Without any further information, it is our view that a competent licensed private pilot, conducting a daily inspection, would not have even considered flying the aircraft in that condition. Schedule 5 of the CAR requires that the exhaust system be checked to ensure that it is secure and free from cracks. In our opinion, if part of the exhaust system is missing, the aircraft most certainly has a defect; which of course should be entered on the maintenance release.
47. Had the defect been entered on the maintenance release and that document inspected by a pilot intending to fly that aircraft, it would have been immediately apparent that unless the defect had been rectified and certified as having been correctly rectified, the aircraft was not airworthy. That is because, as is set out in CAR 47, a maintenance release ceases to be in force where a flight crew member or a person engaged in the maintenance of an aircraft in respect of which a maintenance release is in force, becomes aware that the aircraft has suffered major damage or has developed major defect, other than damage or a defect that is a permissible unserviceability.
48. The expressions major damage and major defect are defined in the CAR as damage or a defect of such a kind that it may affect the safety of the aircraft or cause the aircraft to become a danger to persons or property. Particular attention should be directed to the word may. In the context in which it is used, it expresses a subjective possibility (see The Shorter Oxford English Dictionary).
49. We have no doubt that Mr Snook was aware or should have been aware that the defect should have been entered on the maintenance release and that the aircraft could not be flown until the defect was rectified. When the issue of the maintenance release was put to Mr Snook in cross-examination, his response was that he did not think that the maintenance release was involved. We found this response deeply disturbing. When asked to explain the circumstances in which a maintenance release ceased to be in effect, Mr Snook was unable to answer. His attention was directed to CAR 47(1) and he asked that it be read to him. After it was, he said that he didn’t think that it applied. CAR 47(1) provides:
47 Maintenance release to cease to be in force
(1) If:
(aa) the holder of the certificate of registration for; or
(ab) the operator of; or
(ac) a flight crew member of; or
(ad)an authorised person engaged (whether as an employee or on his or her own behalf) in the maintenance of;
an aircraft in respect of which a maintenance release is in force becomes aware:
(a) that:
(i)a requirement or condition imposed under these regulations in respect of the maintenance of the aircraft has not been complied with;
(ii)the aircraft has suffered major damage or has developed a major defect, other than damage or a defect that is a permissible unserviceability;
(iii)abnormal flight or ground loads have been imposed on the aircraft; or
(iv)maintenance carried out on the aircraft may have adversely affected, to such an extent as to affect the safety of the aircraft, the flight characteristics of the aircraft or the operating characteristics of any aircraft component, or any system of aircraft components, installed in the aircraft; and
(b) that there is a likelihood that the aircraft will be flown before:
(i)the requirement or condition referred to in subparagraph (a) (i) has been complied with;
(ii)the damage or defect referred to in subparagraph (a) (ii) has been remedied;
(iii)any damage caused by the imposition of the abnormal loads referred to in subparagraph (a) (iii) has been remedied; or
(iv) the characteristics referred to in subparagraph (a)
(iv) have been corrected;
as the case may be;
he or she shall, subject to subregulation (2), enter on the maintenance release, or other document approved for use as an alternative to the maintenance release for the purposes of this subregulation, an endorsement signed by him or her setting out the facts of the situation and stating that the aircraft is unairworthy, and thereupon the maintenance release ceases to be in force.
Penalty: 25 penalty units.
50. In our opinion, whether Mr Snook conducted his first inspection as the person engaged in the maintenance of the aircraft or as a flight crew member, it was his responsibility to ensure that the maintenance release was endorsed with a statement indicating that the exhaust system was defective because the tailpipe was missing. Quite plainly, that endorsement could only be cleared following repair of the exhaust system. Until that time, the aircraft was not airworthy and should not have been flown.
51. It is difficult for us to understand why Mr Snook made the decision to fly the aircraft to Bunbury. Having identified the missing tailpipe, there seemed to be no reason at all why he could not have left the aircraft where it was and, if necessary, disconnected the muffler so that a new tailpipe could be welded or connected to it by an approved welder. The item could then have been returned and fitted in situ. The endorsement on the maintenance release could then have been cleared and the aircraft safely flown out of the paddock.
52. Mr Snook gave a detailed account of conducting ground checks prior to attempting a takeoff out of the paddock. In his written statement of evidence, he referred to extensive ground running of the engine. In his oral evidence-in-chief, he said that he started the engine up and gave it a very thorough run. He said:
I conducted a full power run and gave it about three to five minutes at full power, monitoring the – making sure I never overheated the thing and it was – absolutely not a sign of anything, so I was quite amazed.
However, in the notes made by Mr Presneill in the course of a conversation with Mr Snook on about 14 February 2008, Mr Snook apparently told Mr Presneill that he conducted a ground run which included a five minute run in the course of which he advanced the throttle to full power briefly. Also, and significantly, in that conversation with Mr Presneill, Mr Snook said that significant amounts of smoke began entering the cockpit just after liftoff. If that statement is correct, then the heat from the engine exhaust gases impacting on the firewall caused the carpet and material under it to commence smouldering, probably within one minute of running the engine at full power and possibly not more than two minutes after commencing the full power takeoff run. That being the case, we find it difficult to reconcile Mr Snook’s oral evidence about running the engine at full power while the aircraft was stationary for a period of three to five minutes. As a matter of logic, that cannot be correct.
53. We also found Mr Snook’s explanation regarding the material glued to the underside of the carpet being the cause of the problem to be a transparent attempt to justify his decision to fly the aircraft out of the paddock. In Mr Presneill’s file note of 11 February 2008, made after speaking with Mr Snook, Mr Snook admitted that he knew the tailpipe was missing. He said that based on his 40 years of aviation engineering experience, a proper firewall would not be affected because of the available gap and the airflow that he expected to be passing in this area. Again, that explanation defies logic.
54. High velocity exhaust gases at a temperature of about 1,450 Fahrenheit blasting directly onto a metal surface from a distance of 10 – 12 cms must cause substantial heating of that surface. That was apparent even when Mr Snook first inspected the aircraft in the paddock. The firewall was discoloured, indicating that it had been significantly heated. For an engineer to suggest that the airflow resulting from the aircraft’s forward motion would cool that metal surface which was being impacted by high velocity, extremely high temperature exhaust gases, is fanciful to say the least. It is, in our opinion, unbelievable that Mr Snook was not alerted to the fact that the extreme heat applied to the metal surface might affect any material which was in contact with that metal surface on its other side.
55. Although Mr Snook said he did not see any evidence of damage to the carpet on the co-pilot’s side, he also said that he did not attempt to lift the carpet to look at its underside. That would have been a simple task because it was fixed to the metal surface by Velcro. Whether he did so or not, we find that Mr Snook’s decision to fly the aircraft out of the paddock to Bunbury for repair was either the result of dangerously flawed logic or an exaggerated sense of being able to cope. Although Mr Snook downplayed the seriousness of his situation in the course of his oral evidence before the Tribunal, that was clearly not his view shortly after the incident when he told Mr Presneill that he believed his life was in jeopardy. In our view, that statement was clearly correct. Not only was Mr Snook’s life in jeopardy, but if he had been incapacitated and the aircraft had struck the ground in an uncontrolled manner, it certainly posed a risk to other persons and property.
56. CASA also submitted that once Mr Snook experienced smoke in the cockpit shortly after takeoff from the paddock, he should have made an emergency landing in a suitable area rather than continue the flight to Bunbury. While that may be a valid criticism, in our view matters should never have reached that point. Mr Snook should never have attempted to fly the aircraft out of the paddock. He was fortunate that having taken off from the paddock, he was able to continue the flight without becoming incapacitated.
57. In his evidence-in-chief, Mr Snook said that with the benefit of hindsight, he should have contacted CASA and obtained a special flight permit. In his written statement of evidence, Mr Snook said that he was sure that if he had contacted CASA for a special flight permit, it would have been granted. This recognition by Mr Snook, with the benefit of hindsight, does not assist his case. There are two reasons for that.
58. The first is that in coming to that conclusion after the event, Mr Snook has simply acknowledged that the flight should never have taken place in the first place. The second is that Mr Green, who is airworthiness inspector, said in his written statement of evidence that he was confident that an application for a permissible unserviceability or special flight permit would not have been approved for a flight to Bunbury for repairs. This was because the reported cause of the smoke in the cockpit had not been identified and because Mr Snook had identified that the aircraft’s tailpipe was missing. According to Mr Green, this meant the aircraft was subject to two defects with significant implications for its safe operation.
59. Mr Siggins, in his written statement made on 17 August 2009, explained that a CASA airworthiness inspector would sometimes confer with a flying operations inspector about the authorisation or permit which may be issued under regulation 21.197(1) of the Civil Aviation Safety Regulations 1998 (CASR). Mr Siggins was of the view that no airworthiness inspector would have issued a special authorisation or permit, or even considered it necessary to confer with a flying operations inspector before coming to that decision. Mr Siggins said that if the application had come before him, he would have opposed the issue of such authorisation or permit. In our opinion, the views expressed by Mr Green and Mr Siggins are correct. If Mr Snook had made an application under CAR 135A(1) for special flight authorisation or a special flight permit under CASR 21.197(1), we have no doubt it would have been refused. That is because the cause of the smoke in the cockpit which necessitated a forced landing had not been established.
60. The final issue regarding this flight is the fact that Mr Snook failed to lodge with CASA a major defect report after landing at Bunbury airport. In his 21 July 2009 statement of evidence, Mr Green said that Mr Snook was required, by CAR 51 and 51A, to report the missing tailpipe to CASA as a major defect. Apparently Mr Snook did not do so until 30 January 2008, and only after Mr Green had reminded him of his obligations regarding that report.
61. The CARs impose obligations on aircraft maintenance engineers and other persons connected with the operation of Australian aircraft to report a major defect to CASA immediately the defect becomes apparent. As far as Mr Snook’s private pilot licence is concerned, CAR 51A(2) applies. It provides that if a person connected with the operation of an Australian aircraft discovers a defect in an aircraft, being a defect of a kind to which the CAR applies, that person must report the defect to CASA immediately. CAR 51A(1) makes it clear that the regulation applies to major defects which, relevantly, have caused or that could cause a fire in an aircraft. The expression major defect is defined in CAR 2 in the following way:
major defect, in relation to an aircraft, means a defect of such a kind that it may affect the safety of the aircraft or cause the aircraft to become a danger to person or property.
62. There can be no dispute that Mr Snook, in his capacity as a pilot, was a person connected with the operation of aircraft YOG on the day he flew that aircraft. Therefore, if he had discovered a major defect he was required to report that defect to CASA immediately. In his evidence-in-chief, Mr Snook was asked about his obligations regarding major defects. He said:
In this particular instance, I would not have considered that was what had occurred – it was not a major defect.
63. Mr Snook then gave an account of what he understood would fall within the definition of major defect. As an example, Mr Snook said that if he were examining a new Cessna 172 after 10 hours of flight and he noticed a wing attachment bolt had sheared; he would have considered that to be a serious defect and would have filed a report. He then said if there was a crack in the exhaust pipe, he would regard that as routine. He said that would not be considered a major defect. He was then taken to CAR 51A(1) and referred to the fact that a major defect is one that has caused or which could cause a fire in an aircraft. When it was put to him that a missing tailpipe could have caused a fire in the aircraft he said he did not believe so.
64. Mr Snook then referred to the unauthorised product, as he described the insulating material attached to the underside of the carpet, stating that:
that particular calibre of material should not have been fitted in that location because of the proximity of the engine and the … design of the exhaust system.
That statement appears to us to be recognition that the faulty exhaust system could have caused serious heating of the firewall. Mr Snook’s evidence seemed to suggest that had there not been the faulty foam-like material on the underside of the carpet, no problem would have occurred. Again, either this discloses a serious defect in Mr Snook’s cognition or it was an attempt to justify his reasons for commencing the flight in question. Whichever it is, it causes us very serious concern about Mr Snook’s ability to understand the potential consequences of a situation which is clearly outside the bounds of the normal state of affairs.
65. The photographs in evidence disclose that not only had any foam or backing material completely disappeared, but the central part of the entire carpet had disappeared. In other words, where there should have been ordinary carpet material, there was simply a gaping hole.
66. Mr William Cain, a LAME, gave evidence on behalf of Mr Snook, purportedly as an expert. Ms Macdonnell objected to Mr Cain giving opinion evidence because she did not consider he was expert. We nevertheless accepted his statements into evidence on the basis that he had significant experience as a LAME.
67. In his written evidence, Mr Cain said that in his view, the separation of the tailpipe from the exhaust system did not constitute a major defect within the meaning of CAR 51A. He testified that it was unreasonable to believe that the muffler would have caused a fire in the aircraft. When it was put to Mr Cain in cross-examination that the smouldering carpet was in fact a fire, Mr Cain rejected that proposition and said that the carpet had only melted. There was no fire. Mr Cain was asked what he would have done had he seen the heat blast effects on the firewall on the engine compartment side. He said he would have conducted further inspections on both sides of the firewall.
68. Mr Cain attempted to distinguish between a substance melting and a substance burning. In his opinion, there was no fire unless one could see flames. Mr Cain admitted he was no expert in combustion. That, in our opinion, was apparent. The ordinary meaning of the word melt is to become liquefied by heat (The Shorter Oxford English Dictionary). When used as a transitive verb it means to reduce to a liquid condition by heat or to form a molten material. Therefore, if the material in question on the floor on the co-pilot’s side of the aircraft melted, one would have expected to see some remains in the way of molten material. However, much of the material was totally absent. The word fire is defined in The Shorter Oxford English Dictionary as: to set on fire, so as to destroy; to ignite, kindle. Chamber’s 21st Century Dictionary defines fire as:
an occurrence of destructive burning of something.
69. Smoke is defined as a visible cloud given off by a burning substance, and consisting of tiny particles of carbon dispersed in a gas or a mixture of gases. Chamber’s 21st Century Dictionary also defines the word smoulder as: to burn slowly or without flame.
70. This examination of the meaning of the words which were used to describe what happened to the carpet and its underlying material clearly indicates there was a fire in the true sense, rather than a melting of the material. The material had completely disappeared and the smoke experienced by Mr Snook comprised carbon particles imbedded in the gas given off as a consequence of the burning. Of course, no flame was visible but that does not mean the material was not burning. It was properly described as smouldering, which means it was burning slowly without exhibiting a flame.
71. Therefore, with respect to Mr Cain, his attempt at distinguishing the event which took place as merely a melting of foam and carpet material is incorrect. There was a fire in the cockpit at the time Mr Snook flew the aircraft. Not only was that the situation, but Mr Snook said that he considered his life to be in jeopardy. That aspect of his evidence is clearly correct. We therefore find that the missing tailpipe caused a fire in the aircraft, which in turn affected its safety and caused the aircraft to become a danger to persons or property. It was plainly a major defect as that expression is defined in the CAR. It should have been reported immediately.
SHOULD MR SNOOK'S PRIVATE PILOT LICENCE BE SUSPENDED OR CANCELLED
72. CASA submitted that its decision to suspend Mr Snook’s private pilot licence should be varied and that his licence should be cancelled. CASA grounded its submission in CAR 269(1)(c) and (d). The relevant provisions of CAR 269 are as follows:
(1)Subject to this regulation, CASA may, by notice in writing served on the holder of a licence or certificate or an authority, vary, suspend or cancel the licence, certificate or authority where CASA is satisfied that one or more of the following grounds exists, namely:
…
(c)that the holder of the licence, certificate or authority 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 licence, certificate or authority is not a fit and proper person to have the responsibilities and exercise and perform the functions and duties of a holder of such a licence or certificate or an authority; or
. . .
73. There may be some doubt about the Tribunal’s power to vary CASA’s decision to suspend Mr Snook’s private pilot licence given that the show cause notice issued to him indicated that CASA was seeking the suspension of his licence rather than its cancellation. Nevertheless, we are satisfied that the Tribunal may vary the decision to suspend Mr Snook’s private pilot licence despite the fact that the show cause notice did not indicate CASA’s intention to cancel it. That is because CAR 269(3) provides that before taking an action under CAR 269, CASA must give notice to the holder of the licence or certificate or authority of the facts and circumstances that, in the opinion of CASA, warrant consideration being given to the variation, suspension or cancellation of the licence, certificate or authority.
74. The facts and circumstances giving rise to CASA’s initial decision were set out fully in the show cause notice issued to Mr Snook. They have not altered, even though CASA now is of the view that the decision should be varied so that the licence is cancelled. Furthermore, as CASA pointed out in its final submissions, it placed Mr Snook on notice in its statement of facts and contentions that it would be seeking cancellation of his private pilot licence. Although CASA did not expressly state that it would be seeking cancellation of his private pilot licence, as we understood the final submissions, that followed from the fact that CASA considered Mr Snook not to be a fit and proper person to hold a private pilot licence. This is despite the fact that in its notice of decision dated 24 June 2008, CASA, relying on the fit and proper ground (CAR 269(1)(d)), decided to suspend his private pilot licence rather than cancel it.
75. The facts and circumstances giving rise to CASA’s decision to now seek cancellation of his private pilot licence are precisely the same as those which initially led to CASA’s decision to suspend Mr Snook’s private pilot licence. Therefore, it is our view that if we find the circumstances are such as to warrant cancellation rather than suspension of Mr Snook’s private pilot licence, he has been given adequate opportunity to address the claims made by CASA in respect of the facts and circumstances giving rise to the decision which CASA now asks the Tribunal make.
76. We are required to determine whether the preferable decision in respect of Mr Snook's private pilot licence is that it be suspended or cancelled. We will first examine whether it should be cancelled. This is because if we find that his licence should be cancelled, we need not proceed with an examination of whether a suspension is appropriate. If we arrive at the conclusion that his licence should not be cancelled, then we would need to further consider CAR 269(1)(a), which includes determining whether Mr Snook has contravened a provision of the Act or the CAR. Due to the restrictions placed on cancellation of a licence by CAR 269(1A), we cannot rely on CAR 269(1)(a) for the purpose of considering cancellation of his licence. However, those restrictions do not apply to a suspension.
77. We do not think that Mr Snook's conduct in relation to the flight of aircraft YOG enlivens any of the provisions set out in CAR 269(1)(b). There was nothing in the evidentiary material indicating he failed to satisfy or continued to satisfy any requirement prescribed by, or specified under, the CARs in relation to the obtaining or holding of a private pilot licence. However, his conduct certainly enlivens the provisions set out in CAR 269(1)(c) and (d).
78. As far as CAR 269(1)(c) is concerned, we find that Mr Snook has failed in his duty with respect to a number of matters affecting the safe navigation or operation of an aircraft.
79. As a pilot conducting a daily inspection prior to flight, Mr Snook was required to check that the exhaust system was secure and free from cracks, as is set out in Section 1 of Part 1 of Schedule 5 of the CAR. It is not an adequate response to state that the tailpipe was missing but otherwise the exhaust system was secure and free from cracks. Clearly, the exhaust system was not secure and cracking had occurred to such a degree that the tailpipe had fallen off. Although we accept Mr Snook identified this problem when conducting the daily inspection, his subsequent actions constituted a breach of his duty.
80. Having observed the tailpipe was missing; that the muffler was now directing extremely high temperature, high velocity exhaust gasses onto a metal firewall some 10 to 12 centimetres from the end of the muffler; and having observed the severe discolouration caused by heating of the firewall coupled with the explanation given by Mr Coxall (experiencing smoke in the cockpit) for conducting a forced landing, Mr Snook's clear duty was to enter that defect in the maintenance release. Although Mr Coxall had removed the maintenance release and taken it with him to Kalgoorlie, Mr Snook’s duty was to contact Mr Coxall to ensure that an entry was made in the maintenance release specifying the defect.
81. The fact that Mr Coxall made an emergency landing should have been sufficient indication to Mr Snook that until the cause of smoke in the cockpit had been positively identified, the aircraft was simply not airworthy. CAR 50(1)(c) makes it abundantly clear that CAR 50 applies to a flight crew member of an Australian aircraft. CAR 50(2) provides:
(2) If:
(a) there is a defect in the aircraft; or
(b) the aircraft has suffered major damage;
a person mentioned in subregulation (1), who becomes aware of the defect or damage, must endorse the maintenance release of the aircraft or other document approved for use as an alternative for the purposes of this regulation, setting out the particulars of the defect or damage, as the case may be, and sign the endorsement.
Penalty: 25 penalty units.
82. In our opinion, the aircraft had suffered major damage because an essential part of its exhaust system had separated from the aircraft. Mr Snook was aware that extremely hot exhaust gasses at high velocity were impacting on the metal firewall some 10 to 12 centimetres behind the muffler. He was aware of discolouration to the firewall due to excessive heating. Furthermore, the aircraft had made an emergency landing due to what was described as smoke in the cockpit. With all due respect to Mr Snook, it did not require the benefit of hindsight to determine that the aircraft had suffered a defect which caused the tailpipe to fall off and, as a result of the departure of the tailpipe, the aircraft had suffered major damage.
83. The expression major damage is defined in CAR 2 and it means damage of such a kind that it may affect the safety of the aircraft or cause the aircraft to become a danger to persons or property. Clearly, this failure did affect the safe navigation and operation of the aircraft. It caused the pilot to make a forced landing in a paddock. The aircraft should not have been flown again until the defect was repaired.
84. Although Mr Snook attempted to play down the seriousness of his decision to fly the aircraft out of the paddock, the fact that he experienced sufficient smoke in the cockpit to cause him to open the aircraft door in flight in order to exhaust the smoke, speaks for itself. There can be no question that Mr Snook, by taking off in an aircraft which was unserviceable, must have known that he would experience some smoke in the cockpit because Mr Coxall had done so on its previous flight and Mr Snook had not conducted any repairs on the aircraft in the interim.
85. Mr Snook's evidence that he had no idea of the source of the smoke in the cockpit after examining the aircraft on the ground defies logic. All of the aircraft maintenance engineers who gave evidence said that upon seeing the discolouration on the engine side of the cockpit firewall, they would have immediately examined the floor area inside the aircraft on the other side of the discolouration. Had Mr Snook done that, and we must say we are not certain that he did not, he would have immediately identified the source of the smoke which was the subject of Mr Coxall’s complaint. The fact that Mr Snook is also a LAME simply compounds his problem.
86. When Mr Snook was taken to CAR 47, which deals with when a maintenance release ceases to be in force, he seemed to be unaware of its provisions. When he was asked if he was aware of CAR 47, he asked that it be read to him. He then responded that he did not think it applied. When asked whether, if the maintenance release had been in the aircraft, he would have endorsed it, he said that he would have expected the pilot to have endorsed it and he would have carried out rectification and signed it off. He gave no indication as to what rectification he would have carried out. Mr Snook’s apparently limited awareness of the provisions in the CAR dealing with maintenance releases caused us great concern.
87. As best we could determine, following his examination of the aircraft, Mr Snook was satisfied that the aircraft was airworthy despite the missing tailpipe. To put it at is lowest, that is extraordinary coming from a pilot who also holds an AME licence. CAR 47 provides that where a flight crew member of an aircraft in respect of which a maintenance release is in force becomes aware that the aircraft has suffered major damage or has developed a major defect, and there is a likelihood that the aircraft will be flown before the damage or defect has been remedied, then that person must enter on the maintenance release, signed by that person, a statement setting out the facts of the situation and that the aircraft is not airworthy. Upon doing so, the maintenance release ceases to be in force. For reasons which remain unexplained, Mr Snook appeared not to be aware of this very basic requirement in respect of determining the airworthiness or otherwise of an aircraft.
88. The final matter for concern in respect of the failure of duty question is whether Mr Snook was required to comply with the defect reporting provisions set out in CAR 51A(1) and (2). As is stated in that regulation, a major defect which has caused a fire in an aircraft must be reported immediately by a person connected with the operation of that aircraft. The explanation given by Mr Snook and supported by Mr Cain was that there was no fire in the cockpit but rather the material on the floor of the co-pilot's side of the cockpit simply melted. As we have explained above, such an interpretation does serious damage to the English language.
89. A large portion of the insulating material behind the carpet and the carpet itself had disappeared. That was because its contact with the very high temperature of the firewall caused it to smoulder, resulting in a fire which burnt a hole in the insulation material, the backing of the carpet and the carpet itself. The solid material had completely disappeared. That is not a case of melting but, quite clearly, a case of combustion, where the solid material was heated to such a degree that it vaporised and disappeared. Though Mr Cain suggested that you cannot have a fire without a flame, quite clearly, a smouldering fire does not have a flame but it is nevertheless a fire. The vapour given off will contain particles of carbon (giving rise to visible smoke) and also a number of noxious gasses depending on the type of material which is burning. The consequences of that could easily have been catastrophic, not only for Mr Snook but for persons and property on the ground.
90. In our opinion, the breaches of duty displayed by Mr Snook were extremely serious and he was very fortunate that no one was injured or killed. In our opinion, breaches of that degree should attract the cancellation of his private pilot licence.
91. In addition, CASA submitted that Mr Snook was not a fit and proper person to hold a private pilot licence. The meaning of the expression fit and proper person was explained by the High Court of Australia in Australian Broadcasting Tribunal v Bond and Ors (1990) 94 ALR 11. Toohey and Gaudron JJ said, at 56:
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.
92. In determining whether Mr Snook is a fit and proper person to hold a private pilot licence, we should also have regard to CAR 5.09(3). That regulation deals with the issue of flight crew licences and provides that in deciding whether an applicant for a licence is a fit and proper person to hold the licence, CASA must only take into account:
(a)any action taken by CASA, or a responsible organisation, in relation to any authority to perform duties essential to the operation of an aircraft during flight time that was given to the applicant by CASA, or the organisation; and
(b) any other matter that relates to the safety of air navigation.
93. In Re Gerald Keith Repacholi and Civil Aviation Safety Authority [2003] AATA 573, the Tribunal held that in deciding whether a person is fit and proper for the purposes of CAR 269(1)(d), the matters which the Tribunal should take into account in determining that question may be wider than those matters which appear in CAR 5.09(3). With respect, we cannot agree. There are several reasons for this.
94. The first is that CAR 269(1)(d) refers to a person not being a fit and proper person to have the responsibilities and exercise and perform the functions and duties of a holder of a licence, certificate or an authority. In other words, the context in which Mr Snook must be assessed to determine if he is a fit and proper person is in exercising and performing his functions and duties as a private pilot licence holder.
95. The two matters set out in CAR 5.09(3) also direct attention to the operation of an aircraft during flight and other matters that relate to the safety of air navigation. In other words, CAR 269(1)(d) is consistent with what is set out in CAR 5.09(3). Therefore, taking into consideration matters which fall outside CAR 5.09(3) in the course of making a decision under CAR 269(1)(d) would have unintended consequences. For example, if CASA was to take into account matters of character which have nothing to do with the safety of air navigation, and cancel a person's flight crew licence under CAR 269(1)(d) on that basis, then there would be no reason why the holder of that licence could not immediately seek reissue of the licence under CAR 5.09(3). On doing so, CASA must disregard the very matter upon which the previous licence was cancelled and reissue the licence.
96. In Mr Snook's case, we must consider the actions he took which relate to his operation of aircraft YOG from the paddock and the flight to Bunbury and the impact they had on flight safety.
97. In our opinion, Mr Snook is not a fit and proper person to hold a private pilot licence. His decision to fly aircraft YOG from the paddock to Bunbury was not merely a poor decision. We were very concerned with Mr Snook's evidence about that event. While it is understandable that Mr Snook would attempt to cast that decision in the best light possible, his evidence regarding the reasons for making the decision to fly the aircraft are illogical.
98. That raises at least two concerns. The first is that Mr Snook may not have comprehended the seriousness of the mechanical defect which the aircraft suffered when the tailpipe became disconnected from the muffler and fell from the aircraft. The obvious signs of heat having been applied to the firewall of the aircraft and the explanation by Mr Coxall that he experienced such smoke in the cockpit that he performed an emergency forced landing would, logically, have led the average pilot to conclude there was a connection.
99. In this case, the pilot also held an AME licence. If, as Mr Snook put forward as an explanation, he did not make the connection and carried out a thorough inspection of the aircraft, then his inability to comprehend situations which may and probably will give rise to serious safety considerations clearly indicates he is not a fit and proper person to hold a licence. On the other hand, if in fact Mr Snook did make the connection between the missing tailpipe, the discoloured firewall and the smoke in the cockpit, then he clearly made a decision which was foolhardy and dangerous.
100. Mr Snook's lack of knowledge of the regulations was also disturbing. In particular, when asked about CAR 47 which deals with when a maintenance release ceases to be in force, it was apparent to us that Mr Snook was unaware of its provisions. He did not understand that it was his responsibility to ensure that the maintenance release was endorsed with the defect and that the aircraft should not have been flown until the defect was rectified. He identified the missing tailpipe. Mr Coxall did not. Rectification of the defect clearly required a tailpipe to be fitted to the muffler. As a pilot and a LAME, Mr Snook must have been aware of this. Furthermore, by suggesting that Mr Coxall was responsible for endorsing the maintenance release, Mr Snook appeared to have no understanding of his obligations under CAR 50.
101. The final matter which leads us to the conclusion that Mr Snook is not a fit and proper person to hold a private pilot licence is the action he failed to take after landing at Bunbury. Mr Snook's reasons for not submitting a defect report until CASA insisted he do so was that he did not consider that the aircraft had suffered a major defect. That was Mr Snook's opinion because he did not consider that the missing tailpipe caused or could cause a fire in an aircraft. This is despite the fact that Mr Coxall experienced so much smoke in the cockpit that he had to make an emergency landing in the paddock.
102. The problem also occurred on Mr Snook's flight, when he experienced substantial smoke in the cockpit and he became seriously concerned for his life. Then, because there were no flames apparent in the cockpit, Mr Snook maintained that there was no fire but merely a melting of material on the cockpit side of the firewall. If Mr Snook sincerely believed that to be the case, his understanding of the purpose and function of regulations which are made to ensure the safety of air navigation, is seriously flawed.
103. In his final submissions, Mr Ribbands of counsel, who appeared on behalf of Mr Snook, submitted that we should take into account the effect the cancellation of Mr Snook's private pilot licence would have on his ability to earn his income from his aircraft maintenance activities. While we are concerned with the effect this decision will have on Mr Snook's ability to continue to earn his livelihood, we cannot elevate that concern above our concern for the safety of air navigation.
CONCERNS REGARDING MR SNOOK'S AIRCRAFT MAINTENANCE ENGINEER LICENCE AND CoA
104. CASA's concerns about Mr Snook's capacity and fitness to continue to hold an AME licence and CoA arise out of a number of matters which CASA has investigated. The first of these involves the aircraft YOG which has been referred to above. On 19 December 2007 Mr Snook carried out a periodic inspection (100 hourly) on YOG and found cracking around the muffler where the tailpipe was attached. Following repair and reinstallation of the muffler and tailpipe, after 3.2 hours of recorded flight, the tailpipe fell off. CASA contended that Mr Snook had not reassembled the exhaust system for the aircraft using the appropriate components as specified in the manufacturer's approved parts catalogue. CASA also contended that following the forced landing of YOG on 15 January 2008, Mr Snook's initial inspection of the aircraft was for the purpose of identifying the fault and conducting rectification work. Because Mr Snook decided that the aircraft was airworthy and fit to fly when it was not, and because he failed to report a major defect which caused a fire in the aircraft, he had not satisfactorily carried out the duties of a LAME or a CoA holder.
105. There were some further matters, discovered following an audit of Mr Snook's maintenance activities, which also gave CASA reason for concern. The first of these related to a PZL MA-18 Dromader aircraft, registration number VH-NIN. The second aircraft which caused CASA concern was a Piper PA36 Brave, registration number VH-TVU. CASA claimed that Mr Snook's CoA did not authorise him to carry out maintenance on that aircraft and that he conducted maintenance under his AME licence which he was not authorised to perform. CASA noted a number of concerns with the maintenance Mr Snook carried out on an Aerobatic Fuji, registration VH-FJU. There were issues about the number of aerobatic hours the aircraft had flown and repairs conducted on its windscreen. CASA also identified maintenance problems with a Piper PA-28R-201, registration VH-EHK; a Cessna 152, registration VH-CRP; a Cessna A188B, registration VH-ZRR; a Cessna A188B, registration VH-KZE; and, following an audit of another CoA holder, Airfast Pty Ltd, aircraft registration VH-XAT.
Maintenance Conducted on Aircraft VH-YOG
106. In the course of conducting a routine 100-hourly inspection on YOG on 19 December 2007, Mr Snook detected cracks at the point where the tailpipe exits the muffler. Mr Snook removed the muffler and sent it to Mr Trotter, who apparently held an aircraft welding authority. Mr Green, an airworthiness inspector with CASA, when investigating the loss of the tailpipe from the aircraft, visited Mr Trotter and spoke with him about the welding that he performed. Mr Trotter told Mr Green that the muffler had sufficient parent metal to weld and that the cracking, because of its style and the direction of the cracks, was typical of an engine with vibration.
107. When Mr Trotter returned the muffler with its release note certifying it had been properly repaired, Mr Snook said he re-installed the muffler in exactly the same manner in which it had been attached when the aircraft came into his workshop for its periodic inspection. That is, the muffler was supported from above by a rubberised strap attached to a metal clamp, which had been placed at about the centre point of the length of the muffler. The tailpipe itself had no support whatsoever.
108. Concerned by the way the muffler was attached to the airframe, Mr Green obtained an illustrated parts catalogue for the aircraft muffler system. There are two illustrations for the exhaust and muffler system and Mr Green was uncertain as to which one applied to YOG. Nevertheless, both illustrations clearly disclose the tailpipe being supported by a sprung clamp, which is bolted to the tailpipe and the airframe. The sprung clamp appears to be designed to act as a damper to smooth out any vibrations emanating from the engine. According to Mr Green, the incorrect mounting of the muffler with its clamp and rubber support in the middle of the muffler was likely to have been a significant contributing factor in the initial cracking of the muffler and tailpipe which resulted in its failure after 3.2 flying hours.
109. The reason appears elementary. Even a small vibration at the engine where the exhaust is attached to it would exhibit itself as a fairly large movement at the end of that exhaust system where the exhaust gasses exit the tailpipe. In other words, unless the tailpipe is secured, a vibrating engine would significantly amplify the oscillations at that point, thus leading to the cracking. The exhaust pipe and muffler system clearly has a degree of flexibility throughout its length because the pipes themselves necessarily flex; and this is particularly so where relatively heavier muffler systems are attached to those pipes.
110. CASA was critical of Mr Snook for not recognising the way in which the muffler with its attached tailpipe was secured to the aircraft and for not taking any action to ascertain for himself the correct means by which these components should have been attached to the aircraft.
111. According to Mr Green, this should have been apparent to Mr Snook because Mr Trotter had told Mr Snook that engine vibration had caused the cracking around the point where the tailpipe entered the muffler. Mr Snook's response was that the muffler fitted to the aircraft was non-standard and that the aircraft had been out of production for some 40 years. He said that the muffler had been attached to the aircraft in the same way for some 200 hours without incident and he saw no reason not to refit the repaired muffler in the same manner as it was fitted before he conducted the inspection. He said he did not consider whether the tailpipe should have been supported in any way. Mr Snook said the 100-hourly inspection was routine and there was no need for him to refer to a parts catalogue to determine whether the correct parts had been fitted.
112. When it was put to Mr Green in cross-examination that there could be no issue where parts were refitted as they had been previously fitted, he disagreed. He also disagreed that the muffler fitted to YOG was not a standard muffler. In fact, the diagram in the illustrated parts catalogue showing the exhaust system components does bear a close resemblance to the muffler shown on the photographs which were in evidence.
113. According to Mr Green, the way in which the muffler was secured to the aircraft by the rubber strap should have alerted Mr Snook to the fact that this was unlikely to be the authorised way of mounting and securing the muffler and exhaust system. Mr Green was of the opinion that, were he confronted with the situation, he would have looked further into it in order to determine whether the way in which the muffler system was attached to the aircraft contributed to the cracking around the tailpipe area.
114. Mr Green was also of the opinion that if Mr Snook was unable to obtain the correct parts for the proper securing of the muffler and tailpipe system, he should have applied to CASA under CAR 35 for approval of a modification or repair to that system. Under CAR 35, where an application is made for a modification or repair of an aircraft component, CASA may authorise the making of the modification or repair. According to Mr Green, Mr Snook should have undertaken that procedure. We agree with Mr Green.
115. In our opinion, an experienced and competent aircraft maintenance engineer would certainly have enquired into the cause of the cracking where the tailpipe joined the muffler when he or she first observed this, some 3.2 hours before the tailpipe fell off. The fact that Mr Trotter explained that the cracking was consistent with engine vibration would, in our opinion, have alerted a competent and experienced aircraft maintenance engineer to the makeshift attachment of the muffler to the airframe. That attachment quite clearly would not provide any damping of the vibrations transmitted to the exhaust system from the engine, the amplitude of which would be significantly increased at the end of that system. Had Mr Snook made enquiries, and had he been unable to obtain the approved component to secure the tailpipe to the airframe, he should have applied to CASA under CAR 35 for an approved modification to that component.
401. The suggestion that the incorrect foam fitted to the underside of the carpet was the culprit and that Mr Snook could not have been expected to detect that is, with respect, an absurd diversion. The aircraft had made an emergency landing in the paddock due to smoke in the cockpit. Therefore, Mr Snook necessarily knew that there was something very seriously amiss with this aircraft. Until the cause of the problem was positively identified and proper maintenance conducted to rectify the problem, the aircraft was clearly not airworthy and that fact should have been recorded in the maintenance release by Mr Snook or by Mr Coxall.
402. Mr Snook is not absolved from making an entry in the maintenance release simply because Mr Coxall took that document with him to Kalgoorlie. Upon completing his inspection, Mr Snook should have contacted Mr Coxall immediately and asked him to endorse the maintenance release with a statement indicating that the tailpipe had parted from the muffler and that he had experienced smoke in the cockpit. Had that been done, no issue would have arisen for Mr Snook regarding whether the aircraft could be flown back to Bunbury.
403. We were not satisfied with the reasons Mr Snook gave for coming to the conclusion that the aircraft was safe to fly. In our opinion, a LAME diligently performing his duties would have concluded that the aircraft was not airworthy. That would have been the end of the matter. Accordingly, we find that Mr Snook’s inspection of the aircraft and subsequent decision that the aircraft was fit to fly discloses a dangerous lack of understanding of his fundamental duties to ensure the safety of air navigation.
404. Mr Snook later compounded his failure by his determination not to report the incident or to record that the aircraft had suffered a defect or major damage. An aircraft suffers major damage if the damage may affect the safety of the aircraft or cause the aircraft to become a danger to a person or property. The same definition applies to a major defect. Again, it is incomprehensible to us that a competent LAME would have come to the same conclusion as Mr Snook. In his final submissions, Mr Ribbands submitted that this aspect of the incident was at best peripheral. We do not agree. The incident itself, if properly reported, would have served as a very clear warning to other aircraft operators and maintainers about the possibility of a cockpit fire following malfunction of an exhaust system that caused extremely hot exhaust gasses to impact on metal components.
405. The opinions expressed by Mr Snook and Mr Cain, that there was no fire in the aircraft, but rather some melting of a substandard material, are plainly incorrect. In fact, it is something of a diversion from the cause of the problem, which was the missing tailpipe and the decision to fly the aircraft in that condition. Mr Ribbands, in his final submissions, agreed that the material inside the cockpit was smouldering. He nevertheless submitted that was not sufficient to trigger the major defect reporting provisions in CAR 51 and 51A.
406. With the greatest respect to Mr Ribbands, material that is smouldering is on fire. For a matter to be reported under CAR 51A(1)(d), there need not have been a fire but merely a situation which could have caused a fire in the aircraft. The conditions experienced by Mr Coxall on that flight had already gone beyond the minimum requirements to invoke CAR 51A.
407. Mr Ribbands also submitted that if a chief engineer had the overall responsibility for Mr Snook’s CoA, then it would be reasonable to assume that any errors of judgement which Mr Snook may have made in respect of that incident would not have been made. We cannot accept that submission. It is speculative and, having regard to the way in which Mr Snook appears to conduct his maintenance generally, probably incorrect.
408. All of the concerns we have expressed above regarding this incident lead us to find that Mr Snook failed in his duty with respect to a matter affecting the safe navigation and operation of this aircraft. In fact, his conduct fell so far below a reasonable standard that one would expect of a LAME that it was extremely fortunate that no lives were lost.
409. As for aircraft TVU, we have found that Mr Snook was not authorised to conduct the maintenance work which he conducted on that aircraft’s turbine engine. Nor was Mr Snook authorised to carry out the periodic inspection under his CoA. Once again, Mr Snook’s reasons for installing the engine in aircraft TVU while it was in his hangar, and his subsequent explanation about performing the work under another CoA holder’s certificate, stretches credulity. His explanation, that the aircraft was originally certificated with a piston engine and that led him to believe that his AME licence and CoA authorised him to do the work, is bizarre. Furthermore, the evidence of Mr Montauban and the fact that the job was booked in for a 100 hourly inspection on 21 August 2007, some 11 months before the aircraft was brought in for maintenance, discloses the disingenuousness of Mr Snook’s explanation.
410. In our opinion, the evidence clearly discloses that Mr Snook undertook work which exceeded the limits of the work specified in the endorsement on his AME licence. Furthermore, the conduct of maintenance on a turbine-engined aircraft at Mr Snook’s facility at Jandakot was outside the conditions stated on his CoA. We do not accept that Mr Snook commenced work on aircraft TVU inadvertently. Mr Snook has been an aircraft maintenance engineer for 40 years. He knew his licence and CoA did not cover work on a turbine-engined aircraft. Accordingly, we find that Mr Snook’s attempt to conduct the 100 hourly periodic inspection and the fitting of a new turbine engine in the aircraft disclosed a complete disregard for the regulations. Therefore, in conducting this maintenance, Mr Snook failed in his duty in respect of a matter affecting the safe navigation or operation of this aircraft.
411. The maintenance records of aircraft NIN and the other PZL M-18 Dromader aircraft are indicative of the way in which Mr Snook has conducted aircraft maintenance. In particular, they disclose his attitude towards maintenance record keeping. It was clear to us that Mr Snook regarded the recording of maintenance carried out, including certification of the completion of categories and stages of maintenance, to be merely clerical work. That is not the case.
412. In fact, as the Tribunal noted in ReBrazier and Civil Aviation Safety Authority [2004] AATA 313, the system of certification of completion of maintenance is a central plank in the regulations dealing with maintenance and repair of aircraft. It is essential to the safe operation of aircraft because it is the only means by which pilots or operators of an aircraft can be satisfied that all maintenance required to be performed on an aircraft has been performed in accordance with the system of maintenance which the holder of the certificate of registration has elected to use. Any breakdown in the proper recording of aircraft maintenance is a failure by the LAME to comply with his or her duty in respect of a matter affecting the safe navigation or operation of an aircraft. It is not a minor clerical matter.
413. CASA listed no less than eight failures on Mr Snook’s part, as a LAME and a CoA holder, to comply with the CARs dealing with the maintenance of aircraft. Mr Snook’s explanation for those failures, in many instances, is difficult to comprehend. He appears to read into a maintenance requirement whatever he thinks is appropriate. He certainly does not follow a maintenance schedule as it is written.
414. For example, where the updated maintenance schedule set out different requirements for maintenance than those set out in the old maintenance schedule, Mr Snook maintained, on a number of occasions, the schedules were identical. We do not know why Mr Snook seems unable to follow maintenance documents but whatever the reason; it is of serious concern to us.
415. Mr Snook’s misunderstanding of the applicability of Service Bulletin E/02. 142/91 was also of major concern to us. Mr Snook focused on one paragraph under the heading Applicability and concluded that because the service life of aircraft which have flown fewer than 3000 hours since new could be extended to 3000 (plus 10%) flying hours without performing additional procedures, that meant the Service Bulletin only came into effect at 3000 plus 300 hours. Therefore, as far as Mr Snook was concerned, the service life limits of accessories, parts and rubber elements did not come into effect until that time. The Service Bulletin referred to additional procedures but it seems Mr Snook did not understand that was a reference to the procedures for extending airframe life. For reasons which remain unclear to us, Mr Snook believed that was a reference to periodic maintenance.
416. In his final submissions, Mr Ribbands disputed CASA’s contention that compliance with service bulletins issued by an aircraft manufacturer was mandatory. He said that the evidence of Mr Snook and Mr Cain was to the effect that service bulletins are not mandatory. He submitted that in the past, CASA had a practice of issuing an airworthiness directive when it required mandatory compliance with the manufacturer’s service bulletins. Therefore, in the absence of an AD, the service bulletin was not mandatory. He suggested that this position had changed in recent times so that compliance with service bulletins emanating from the country of manufacture of the aircraft was mandatory.
417. Ms Macdonnell rejected Mr Ribbands’ submissions and indicated that they were a misstatement of the law and the evidence given in this matter. She submitted that the requirement to comply with the manufacturers’ service bulletins was not a recent change and that there was no evidence to support his submissions to that effect. Ms Macdonnell pointed out that even Mr Cain conceded that the current position has existed since the CAR was first made in 1988. In our opinion, Ms Macdonnell’s submissions are clearly correct.
418. CAR 42V requires a person carrying out maintenance on an Australian aircraft to ensure that the maintenance is carried out in accordance with the applicable provisions of the aircraft’s approved maintenance data. The expression approved maintenance data is defined in CAR 2A. It means, amongst other things, any other instructions approved by CASA under subregulation (4). CAR 2A(4) provides that for the purposes of CAR 2A(2)(e), CASA may approve instructions relating to how maintenance on aircraft, aircraft components or aircraft material is to be carried out.
419. According to Mr Ribbands, the reference to applicable provisions in CAR 42V(1) connotes the existence of inapplicable provisions of the aircraft’s approved maintenance data. In other words, provisions that might seemingly exist would form a part of the approved maintenance data but which are not applicable for the purposes of carrying out the maintenance. In order to determine which parts of an aircraft’s approved maintenance data are applicable, according to Mr Ribbands, one reverts to the definition contained in CAR 2A.
420. Therefore, according to Mr Ribbands, referring to CAR 2A(2)(c), service bulletins which specify how maintenance on aircraft or components is to be carried out would fall within the definition of approved maintenance data. However, CAR 2A does not include or otherwise make mandatory a service bulletin promulgated by a manufacturer of an aircraft that stipulates that maintenance ought to be done.
421. With all due respect to Mr Ribbands, that is not quite correct. CAR 2 defines maintenance instruction to mean an instruction issued by the manufacturer of an aircraft, aircraft component or aircraft material but it does not include an instruction issued by a manufacturer or designer if it is clear from the terms of the instruction that the manufacturer or designer regards compliance with the instruction as optional. Therefore, where a service bulletin clearly states that compliance is optional, then that service bulletin would not form part of the manufacturer’s approved maintenance data for the purposes of CAR 2A.
422. Otherwise, a service bulletin setting out instructions about how maintenance on the aircraft, components or material is to be carried out, does form part of the approved maintenance data and a person carrying out maintenance on an Australian aircraft, where the registered owner of the aircraft has elected to use a manufacturer’s maintenance schedule for the aircraft’s maintenance, must comply with that instruction if the instruction applies to the aircraft in question. Service bulletins will usually set out, by some form of identification such as serial numbers of aircraft, to which aircraft the bulletin applies. For example, service bulletin E/02 142/91 expressly states that it is for PZL M18, M18A and M18AS Dromader aircraft. That service bulletin also refers to particular aircraft serial numbers to which the bulletin applies.
423. Therefore, where CAR 2A refers to the applicability of maintenance of the aircraft, that is a reference to the specific aircraft in question. The bulletin of course may not cover that particular aircraft because of its serial number or particular model number. Whether the bulletin should be regarded as approved maintenance data depends on whether the manufacturer regards compliance with the instruction as optional. If the manufacturer does not regard compliance as optional, compliance is not optional; it is mandatory.
424. We cannot accept Mr Ribbands’ submission that, in the absence of an AD, compliance with a service bulletin is not mandatory. Mr Ribbands submitted that CASA issued an AD in circumstances where it required compliance with a service bulletin and that this action was taken pursuant to CAR 2A(4). There was no evidence before us that that was the case. In fact, all of the ADs to which we were referred and of which we have obtained copies, are ADs made under the CASR 39.001. Those ADs expressly state that they are made under the CASR 39.001. They are not instructions approved by CASA under CAR 2A(4).
425. In fact, CAR 2A(4) provides that CASA may, for the purposes of CAR 2A(2)(e), approve instructions relating to how the maintenance of aircraft, aircraft components or aircraft materials is to be carried out. CAR 2A(2)(e) refers to any other instructions approved by CASA under CAR 2A(4) relating to how maintenance on aircraft, aircraft components and aircraft materials is to be carried out. That appears to be a reference to a maintenance instruction issued by CASA. Under CAR 2, a maintenance instruction is defined, inter alia, as an instruction issued by CASA or an authorised person in writing under CAR 38. The maintenance instructions commonly issued under CAR 38 (called directions) are A Class aircraft survey reports, as Mr Green issued in respect of XAT. As is set out in CAR 38(2), maintenance directions issued by CASA are not binding on a person unless they are served on the person. There is no reference in CAR 38 to an AD. That is undoubtedly because, at least since 1998, ADs have been issued under the CASR 39.001.
426. Prior to the introduction of the CASRs, ADs were found in CAR 37A. The provisions of the old CAR 37A are not dissimilar to the new directive in Part 39 of the CASR. It was only where CASA considered that an unsafe condition existed, is likely to exist, or is likely to develop, that it could issue an AD in writing. Although not necessarily so, ADs may require a person to comply with an instruction, direction or requirement issued by the manufacturer of an aircraft or aircraft component or aircraft equipment. That would of course apply to an aircraft regardless of whether the registered owner of the aircraft had elected to comply with the manufacturer’s maintenance manual for the purpose of periodic maintenance.
427. To suggest, as does Mr Snook, that it is only ADs which require a person to comply with an instruction, direction or requirement issued by the manufacturer, because a service bulletin then becomes mandatory, is to totally misunderstand the function of ADs. While ADs must be in writing (CASR 39.001(2)(a)), they are not served on any person. It should therefore be clear that the directions referred to under CAR 38, which appear to be maintenance instructions issued by CASA under CAR 2A(2)(e) and which form part of the approved maintenance data, do not include ADs. ADs are dealt with discretely under Part 39 of the CASR.
428. The upshot of this is that service bulletins issued by a manufacturer, unless the manufacturer clearly indicates that the instructions contained in the bulletin are optional, form part of the approved maintenance data for the purposes of maintaining aircraft, aircraft components or aircraft material. CAR 42V(1) makes it mandatory when performing maintenance to carry that maintenance out in accordance with the applicable provisions of the approved maintenance data. In any event, the Part 1 logbook statement clearly discloses an election to maintain the aircraft in accordance with its flight manual and service manuals. The current service manual for the PZL M18 series of Dromader aircraft provides, at paragraph five:
All work included in this [sic] schedules as well as other additional duties on the a/c should be executed acc.[according] to the mandatory instruction, M18 servicing manuals, ASz-621Rm18 engine logbook as well as the bulletins edited by the airplane and engine manufacturer.
429. Perhaps the most disturbing aspect regarding Mr Snook’s maintenance of the Dromader aircraft is that he had read Mr McDonnell’s report in late November 2008 but when asked whether he had taken any action since reading Mr McDonnell’s report, he said:
No. No. They weren’t governed by an airworthiness directive so there’s no need to continue – no need to do the work.
He was then asked if he continued to maintain that view as at the time of questioning, and his response was: absolutely. When he was asked that if given a service bulletin, a service letter or instruction which said it was mandatory, would he comply with it, he said: No. He said he would only do it if the owner asked him to do it.
430. The maintenance Mr Snook conducted on the Dromader aircraft graphically illustrates his inability to comprehend the statutory requirements for the maintenance of aircraft. While the statutory requirements are undoubtedly complex and there is room for misunderstanding, that does not excuse a LAME from compliance, particularly after receiving CASA’s opinion about compliance requirements. If Mr Snook had any doubt about any aspect of maintenance, he should have been conferring with CASA’s airworthiness inspectors on a regular basis. We find that in conducting the maintenance on the Dromader aircraft Mr Snook seriously failed in his duty with respect to a matter affecting the safe navigation or operation of those aircraft.
431. We only need to make brief mention of the audits conducted of the records of aircraft EHK, ZRR and KZE. One of the very serious concerns, which arose from the questioning of Mr Snook regarding the maintenance of these aircraft, was the fact that he agreed that he did not follow maintenance data religiously. It appears that Mr Snook conducted maintenance on aircraft based on the way in which he thought things should be done. As long as the result in his mind was the same, the method he employed to achieve that result was irrelevant. This, in our opinion, is a highly dangerous attitude towards the maintenance of aircraft. It certainly does not satisfy the requirement that he conduct maintenance in accordance with his duties and with due diligence.
432. The audit of the maintenance records of these aircraft also highlighted Mr Snook’s inability or unwillingness to comply with the Schedule 6 requirements regarding the certification of the completion of maintenance.
433. Ms Macdonnell pointed out to us that aircraft ZRR was involved in a fatal accident on 17 November 2009. Although the Australian Transport Safety Bureau (ATSB) had issued a preliminary report, the investigation is ongoing. The report indicates that the investigation will include a review of the aircraft’s maintenance history. This contradicts Mr Snook’s statement, made in the course of his cross-examination, that maintenance had been entirely excluded as a possible cause of the accident. However, because the ATSB has not fully investigated this matter, we wish to make it very clear that any conclusions we have drawn about the maintenance of aircraft ZRR have totally disregarded the fact that this aircraft was subsequently involved in an accident. It would be improper and unfair to Mr Snook to draw any inferences from this accident.
434. We were deeply disturbed by Mr Snook’s response to what he described as clerical errors. In his opinion, a clerical error has never caused an aircraft accident or incident. The problem with this response is obvious. While the simple act of making an incorrect entry in the aircraft logbook or maintenance sheets cannot directly cause an accident or incident, it could easily lead to time-lifed components being used beyond their limits or proper inspections not being carried out. Those situations quite clearly have the potential to cause an accident. Furthermore, where maintenance releases are issued in situations where maintenance remains outstanding, and the aircraft is in fact not airworthy, the operator or pilot of the aircraft will be oblivious to a potential hazard because maintenance which should have been carried out, has not. Correct and proper recording of maintenance is essential for the safe navigation and operation of aircraft.
435. The maintenance work conducted on the windscreen of aircraft FJU clearly demonstrates Mr Snook’s lack of understanding of the limits and conditions placed on his CoA. It also demonstrates his inability or unwillingness to understand that it is his responsibility as a CoA holder to ensure that maintenance conducted under his CoA is properly conducted, by persons authorised to conduct that maintenance on the particular aircraft. His failure to comprehend these requirements and his permitting unauthorised maintenance on an aircraft under his CoA resulted in Mr Snook failing in his duty with respect to a matter affecting the safe navigation or operation of that aircraft.
436. The final issue we considered was Mr Snook’s involvement in maintenance carried out for Airfast. We were very concerned by Mr Snook’s attempts to distance himself from responsibility for maintenance conducted under Airfast’s CoA and his role as the senior LAME. Mr Snook’s conduct in performing maintenance under Airfast’s CoA and certifying the completion of maintenance on behalf of Airfast is evidence of his acceptance of the role of senior LAME.
437. Mr Green, who audited a sample of the maintenance records of aircraft XAT, found numerous examples of poorly executed and poorly recorded maintenance. Many of the matters to which Mr Green directed his criticism are matters which have also arisen in the audits conducted by Mr McDonnell in respect of the other aircraft. We need not repeat them. However, there is one further matter which arose in the maintenance of XAT which was extremely serious. This was Mr Snook’s attempt to transfer to ACS responsibility for failing to comply with the AD relating to the cabin heater.
438. As we have found, Mr Snook altered the worksheet records to give the appearance that another maintenance organisation, ACS, had certified the completion of maintenance on the cabin heater when it was never contracted to do that work. Mr Snook altered the dates of those entries, and a number of other entries, because, in our opinion, the initial date inserted in the worksheet was two days after ACS had certified completion of maintenance in its categories. Unable to alter the date of certification of those categories of maintenance, Mr Snook then altered the date in the worksheet referring to compliance with the AD regarding the cabin heater. This was dangerous and inexcusable. This is particularly so because Mr Snook must have known or ought to have known that ACS had not been asked to carry out compliance with the AD for the cabin heater.
439. Quite plainly, Mr Snook’s certification that maintenance required by the AD to be conducted had been completed was, within his knowledge, false. He nevertheless issued a maintenance release following that periodic inspection. It necessarily follows that he failed in his duty as a LAME regarding the maintenance of that aircraft. It clearly affected the safe navigation or operation of the aircraft because the aircraft was not airworthy when released from maintenance.
440. Having considered all of the evidentiary material dealing with Mr Snook’s AME licence and his CoA, we find that CAR 269(1)(c) is enlivened. The only remaining question is whether Mr Snook’s conduct was such that it warrants cancellation of his AME licence and CoA. We are of the opinion that it does. Mr Snook’s conduct of maintenance and his understanding of the regulatory requirements are seriously substandard.
441. Furthermore, having observed Mr Snook give evidence for several days, it is clear to us that he is unlikely to accept the errors and failings we have described above. His dismissive attitude and the arrogance disclosed by his apparent belief that 40 years experience as an aircraft maintenance engineer entitles him to disregard the proper means by which maintenance should be conducted is deeply disturbing. While we fully appreciate what the consequences of this decision will be on Mr Snook, we cannot elevate our concern above the concern we have for the safety of air navigation. Mr Snook’s conduct as an LAME and holder of a CoA clearly has the potential to put lives at risk. It is our duty to ensure that does not happen.
442. Although our finding in respect of CAR 269(1)(c) disposes of the licence and CoA matters, for the sake of completeness, we believe we should also express our views about Mr Snook’s fitness and propriety to have the responsibilities and to exercise and perform the functions and duties of the holder of an AME licence and a CoA.
IS MR SNOOK A FIT AND PROPER PERSON TO HOLD AN AME LICENCE AND A CoA?
443. We have already referred to the meaning of the expression fit and proper person as explained by the High Court in the Bond case. There is no requirement for an applicant for an AME licence to demonstrate that he or she is a fit and proper person. Therefore, the considerations regarding this criterion are wider than those which can be taken into account when considering a pilot’s licence.
444. CAR 269(1)(d) provides that an AME licence or a CoA may be suspended or cancelled if CASA is satisfied that the holder of the licence, certificate or authority is not a fit and proper person to have the responsibilities and exercise and perform the function and duties of a holder of such a licence or certificate or an authority.
445. Ms Macdonnell submitted that as a CoA holder, Mr Snook has the responsibility to comply with the conditions set out in CAR 30(2C). Quite plainly, an AME licence holder and CoA holder should demonstrate a willingness and ability to comply with all statutory requirements relating to the maintenance of aircraft. It is not sufficient, in our opinion, to indicate a willingness to comply, while demonstrating an inability to comply due to incompetence or any other reasons.
446. Although Mr Ribbands submitted that Mr Snook, in conducting aircraft maintenance, at no time demonstrated a wilful disregard for his obligations or the regulations, the evidence before us and the findings we have made in respect of the audits of the various aircraft upon which Mr Snook conducted maintenance do not support that submission. In fact, there was evidence of Mr Snook deliberately altering dates on worksheets to make it appear that a category of maintenance certified as having been completed was covered by the worksheet entry in question. In any event, even if it could be said that many of the errors Mr Snook made were simply honest mistakes, that does not provide an answer to the fit and proper question. As Perram J said in Civil Aviation Safety Authority v Central Aviation Pty Ltd [2009] FCA 49 at [42]:
It is possible that his honesty could be seen as going to fitness and propriety but it is difficult to understand, without more, how honesty might be an answer to a lack of fitness said to be constituted by incompetence.
447. Mr Ribbands submitted that the passage by Perram J we have quoted above was in the context of considering the combined issues of honesty and financial hardship. Mr Ribbands also submitted that Perram J determined that honesty and financial hardship were matters that may be taken into account in deciding how to exercise a discretionary power to suspend or cancel a licence or certificate. We cannot accept those submissions.
448. As to the first aspect, it is true that Perram J was examining the Tribunal’s conclusion that the applicant in that case was an honest man who would suffer financial hardship if his CoA was cancelled. Perram J then said it was difficult to see that honesty and financial hardship had anything to do with the Tribunal’s conclusions that the applicants had failed in their duty under CAR 269(1)(c) with respect to a matter affecting the safe operation of the aircraft. His Honour referred to the applicant’s failure to notice a steel cap was missing from an engine port (which we understood was the basis for seeking the cancellation of his CoA) and that it was difficult to incorporate notions of honesty or financial hardship into the particular field of discourse.
449. His Honour also said it was difficult to see how financial hardship to the applicant had any relevance to the issue of whether he was a fit and proper person. He then made the statement which we have quoted above. In other words, his Honour was saying that honesty might go to the fitness and propriety issue but that financial hardship did not. Even if honesty was a relevant consideration, he said that without more, he found it difficult to understand that honesty might be an answer to a lack of fitness if it was due to incompetence.
450. In this case, there are many examples of incompetence, which we have referred to in the course of our reasons. That is why, in our view, honesty does not become a significant factor in determining Mr Snook’s fitness and propriety. As to the second part of the submission, with due respect to Mr Ribbands, that is a misstatement of paragraph 43 of his Honour’s decision. He did not say they are matters which may be taken into account but rather, they were factors which the Tribunal took into account in that case when considering CAR 269(1)(c). However, his Honour said there was nothing to indicate that this is what in fact occurred because the Tribunal failed to give an adequate explanation.
451. In its statement of facts and contentions, CASA set out in considerable detail Mr Snook’s compliance history regarding the maintenance of aircraft since 1993. Mr Snook did not take issue with any of the matters set out in that document. In summary, the history is as follows.
(a)In 1993 CASA suspended Mr Snook’s AME licence for 60 days and required him to undergo an airworthiness administration examination following identification of the following actions:
(i)failing to certify the completion of maintenance in logbooks;
(ii)certifying completion of maintenance when components had obviously exceeded their time-life;
(iii)issuing a maintenance release when the aircraft was not serviceable;
(iv)making an unapproved modification to an aircraft component;
(v)allowing maintenance to be performed by an apprentice unsupervised;
(vi)failing to comply with maintenance requirements on two aircraft which resulted in both of those aircraft being forced to make unscheduled landings; and
(vii)installing cylinders in an engine which failed after 11 hours flight time.
(b)CASA suspended Mr Snook’s AME licence in 1995 for:
(i)failing to rectify corrosion;
(ii)failing to replace severely warn components;
(iii)failing to conduct ADs as required;
(iv)failing to rectify unserviceable equipment even though the defects were endorsed on the aircraft’s maintenance release; and
(v)issuing a maintenance release when the aircraft was inspected in accordance with an incorrect maintenance schedule.
(c)The Tribunal found in respect of his 1993 and 1995 suspensions that circumstances involved in those matters were serious lapses of professional engineering performance on the part of Mr Snook, which warranted suspension of his licence.
(d)CASA cancelled Mr Snook’s CoA in 2002 for contravention of CAR 42U. However, the Tribunal subsequently set that decision aside because:
(i)although Mr Snook was unable to explain an alteration of a logbook entry, the Tribunal suggested its own explanation ;
(ii)the Tribunal found Mr Snook had contravened CAR 42W but that the contravention was not wilful, reckless or even a negligent disregard of the regulations which might endanger the safety of aviation and that Mr Snook had an honest and reasonable belief for the contravention; and
(iii)the Tribunal described Mr Snook’s record of compliance with regulations as less than exemplary and agreed that CASA conduct a regular six monthly audit of Mr Snook’s business operations.
(e)CASA conducted an aviation safety audit in November and December 2003, which resulted in the issue of three requests for corrective action (RCA).
(f)CASA conducted a special audit of Mr Snook’s operations in November 2004 and this resulted in six RCAs and there remained three unsatisfactory answers to high- risk questions.
(g)In 2005 CASA conducted a safety trend indicator assessment and the answers to two high-risk questions remained No.
(h)CASA carried out a further safety trend indicator assessment in February 2007 and the answers to the two high-risk questions was still No.
452. While Mr Snook may consider all of the above audits and safety trend indicator assessments as oppressive, the disturbing (though not surprising) aspect of this history is that the findings we have made in the course of this matter are not dissimilar to the issues which have been raised about Mr Snook’s maintenance since 1993.
453. It is not surprising because, given Mr Snook’s evidence, particularly under cross-examination, he has obviously continued to have the same problems with CASA regarding the way in which he conducts maintenance as a LAME, and his operations under his CoA. Mr Snook’s contumacious attitude towards CASA’s officers is unacceptable. This was clearly illustrated by Mr Green in his statement made on 19 January 2010.
454. Mr Green said that on 5 January 2010, in the company of his acting team leader, Mr Graham Hall, he attended the premises of Aeronautique at Jandakot airport. The purpose of their visit was to review the job register and maintenance release book and compare those documents against the weekly activity report provided to CASA by Mr Snook. This followed the Orders made by the Tribunal on 26 February 2009 when it extended a Stay in both matters until they were concluded. The Stay Orders were subject to two conditions, namely:
(a)that Mr Snook provide to the regional manager of CASA’s Perth Office, at the commencement of each week, a schedule of planned maintenance for that week; and
(b)that Mr Snook permit CASA’s officers to attend Aeronautique’s premises at Jandakot airport on reasonable notice to inspect maintenance conducted by Mr Snook and any relevant maintenance records.
455. According to Mr Green, upon entering Aeronautique’s hanger, he and Mr Hall were met by Mr Snook who told them that they must read the notice which he had attached on the entry door to his hangar. That notice, a copy of which was attached to Mr Green’s statement, was some three pages in length setting out conditions of entry into Aeronautique’s maintenance facility by CASA. Mr Snook insisted that unless the CASA officers accepted the conditions of entry by signing the document, he refused to answer any of CASA’s questions or to allow access to any documents. He also said that he would not accept any advice from CASA, unless Mr Green and Mr Hall signed the conditions of entry form.
456. In the course of the hearing, we asked Mr Snook whether he was aware of the conditions attached to the Order that the Tribunal made on 26 February 2009. He said that he was, although he maintained that he was fearful of what CASA would do to his business if its officers where permitted unrestricted access to his premises.
457. In our opinion, Mr Snook does not seem to have any insight into his actions and their likely consequences. His history indicates that, irrespective of anything which is said to him about the maintenance of aircraft, if he holds a contrary view, he will not be persuaded. The fact that his views are frequently demonstrated to be erroneous appears to make no difference at all. In our opinion, these traits are unacceptable in a person who bears the responsibility for the safety of others. Accordingly, we find that Mr Snook is not a fit and proper person to hold and AME licence or a CoA.
CONCLUSION
458. On 24 June 2008 CASA decided to suspend Mr Snook’s PPL until two stated requirements had been met. For the reasons we have attempted to articulate in this decision, we find that Mr Snook’s PPL should be cancelled rather than suspended. Therefore, we set aside CASA’s decision and instead we have decided that Mr Snook’s PPL should be cancelled.
459. On 27 November 2008 CASA decided to cancel Mr Snook’s AME licence and his CoA. In our opinion, those decisions were correct and we affirm those decisions.
I certify that the four hundred and fifty nine [459] preceding paragraphs are a true copy of the reasons for the decision herein of
Mr Egon Fice, Senior Member
Mr Warren Evans, MemberSigned: .............................[signed]..............................................
Elise Montalto, AssociateDate/s of Hearing 9, 10, 11, 12, 16, 17, 18, 19 February 2010
Date of Decision 6 August 2010
Counsel for the Applicant Mr J. Ribbands
Solicitor for the Applicant John Maitland Lawyers
Counsel for the Respondent Ms J. Macdonnell
Solicitor for the Respondent Civil Aviation Safety Authority
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