CASA decision to cancel aircraft maintenance certificate of approval upheld by AAT
Nov 2013 |GB Shaw & Co Pty Ltd trading as Dalby Air Maintenance and Civil Aviation Safety Authority [2013] AATA 736 (11 October 2013)
The Administrative Appeals Tribunal (AAT) has recently affirmed a decision by the Civil Aviation Safety Authority (CASA) to cancel an aircraft maintenance certificate of approval, pursuant to regulation 269(1) of the Civil Aviation Regulations 1988 (Cth). In upholding CASA's decision the AAT concluded the applicant's deliberate breach of a condition of stay, requiring the applicant to notify CASA of aircraft maintenance performed outside the applicant's usual maintenance location, demonstrated an absence of fitness and propriety on the applicant's behalf.
The facts
The applicant, a general aviation maintenance provider, in Dalby Queensland was issued with a certificate of approval in November 2008. The certificate of approval was issued by CASA and authorised the applicant to undertake maintenance on aircrafts and their components.
In July 2011, a CASA inspector arrived at Dalby Air Maintenance to undertake an audit of the applicant's work. CASA's audit found the applicant's processes had fallen below the acceptable standard. CASA cancelled the applicant's certificate of approval pursuant to regulation 269(1) of the Civil Aviation Regulations 1988 (Cth). CASA's power under the regulations allows CASA to cancel a certificate of licence when:
'(d) the holder of the authorisation is not a fit and proper person to have the responsibilities and exercise and perform the functions and duties of a holder of such an authorisation.'
Proceedings were then commenced in the AAT seeking a review of CASA's decision to cancel the applicant's certificate of approval. On 7 August 2012, directions were made in anticipation of a hearing over five days in January 2013. The implementation of CASA's decision was stayed pending the hearing and determination of the earlier order. The stay was made subject to certain conditions, namely the applicant was required to notify CASA of the registration number of any aircraft involved in maintenance performed outside its usual premises at Dalby. In such circumstances the applicant was to provide CASA with copies of the paperwork associated with that maintenance 'at the earliest practical time'.
This stay was breached in September 2012 when the applicant performed maintenance on an Ayres Thrush agricultural aircraft (Aircraft VH-ZOE (ZOE)) in Geraldton in Western Australia. Mr Glen Shaw (a licensed aircraft maintenance engineer and the applicant's chief engineer and manager) travelled to Geraldton with one of the applicant's employees to undertake a 100 hourly periodic inspection on ZOE. Whilst the conditions of the stay did not prevent this, it did require the applicant to notify CASA of the maintenance provided and to deliver paperwork associated with that maintenance to them. The applicant did not do either of these things.
The decision
Although the AAT affirmed the decision of CASA, the AAT provides different reasons to those of the original decision-maker choosing to consider only one narrow and undisputed aspect of evidence. In this regard the AAT did not address the vast array of evidence that touched upon other allegations made by CASA against the applicant (even though the AAT considered 'those matters also demonstrated egregious breaches of the applicant's duty').
The AAT concluded the actions of Shaw confirmed the applicant was not a fit and proper person in that Shaw had deliberately set out to avoid the obligation imposed by the stay condition.
Whilst Shaw maintained he had forgotten to complete the required paperwork and this failure was 'a genuine oversight', the AAT rejected his evidence and found Shaw concealed the applicant's failure to comply with the stay condition by deliberately not completing his own internal records in his job register.
The AAT concluded Shaw had consciously intended to deceive CASA and concealed not just the work but the location the work had been performed in.
The AAT found that cancellation of the applicant's certificate of approval was the only appropriate regulatory response given the applicant displayed actions of being neither a fit nor proper person. The AAT concluded Shaw had:
'...demonstrated he is either unwilling or unable to abide by the rules, that is, the duties of the holder of a certificate of approval. The rules that approval holders are expected to obey have been designed to protect aviation safety. It is not open to the holder of an approval to choose not to obey the rules. Were that to become a norm aviation safety would be put at considerable risk.'
Comments
There is no doubt in coming to its decision the AAT remained concerned with issues of public policy and the potential floodgate that could be opened should other breaches by approval holders be overturned. It is also timely given the recent media attention on the regulator particularly in regards to decisions pertaining to whether approval holders are fit, proper persons. The decision sends a strong message to approval holders to ensure compliance with the rules provided by CASA given the aviation safety risks associated with a disregard for civil aviation regulations.
