CGA Australia Pty Ltd and Civil Aviation Safety Authority [2000] AATA 74 (7 February 2000)

Last Updated: 15 February 2000

DECISION AND REASONS FOR DECISION [2000] AATA 74

ADMINISTRATIVE APPEALS TRIBUNAL)

D2000/1

GENERAL ADMINISTRATIVE DIVISION)

Re: CGA AUSTRALIA PTY LTD

Applicant

And: CIVIL AVIATION SAFETY AUTHORITY

Respondent

DECISION

Tribunal: Miss S. A. Forgie, Deputy President Mr A. Argent, Member

Date: 7 February, 2000

Place: Brisbane

Decision: The decision of the respondent dated 29 November 1999 is affirmed.

S A FORGIE

Deputy President

CATCHWORDS -- AVIATION - conditions of air operators' certificate different from previous certificate - whether adequate operations manual a pre-requisite for air operators' certificate - whether suitable procedure and practice in place - decision affirmed.

REASONS FOR DECISION

This is an application by the applicant, CGA Australia Pty Ltd ("CGA"), to review a decision of the Civil Aviation Safety Authority ("CASA") dated 29 November 1999 to issue to CGA an Air Operators' Certificate ("AOC"). That AOC authorised CGA to conduct, in Australian territory, charter operations and advertising banner - towing aerial work operations in four types of aircraft: Cessna 180, Cessna A185F, Piper PA23-250 and Piper PA31-310. It had effect for a period of six months ending at the end of May 2000. On 4 January 2000 CASA found that it had made errors in the AOC in that one type of aircraft, Cessna 185A, had been omitted and another, a Cessna 185E should have been included rather than a Cessna 185F. These errors do not affect the case. At the hearing of the application, CGA was represented by Mr McIntyre, of counsel, and CASA by its Legal Counsel, Mr Paice. Mr McIntryre appeared by video-link from Darwin.

The Issue

2. The issue in this case is whether an AOC should be issued to CGA in the same terms as it had previously been issued on 23 November 1998. That is to say, the issue is whether CGA should be authorised to conduct:

charter operations in the following aircraft:

Aero Commander 500 type, 560 type, 681 type, 690 type

Beech 35 type, 36 type, 58 type, 60 type, 65 type, 70 type, 76 type, 95 type

Cessna 172 type, 180 type, 182 type, 185 type, 205 type, 206 type, 207 type, 210 type, 310 type

Cessna 320 type, 337 type, 401 type, 402 type A/B/C models, 411 type

DeHavilland DH-82 type

GAF N22 type

Maule M-4 type, M-5 type, M-7 type

Mooney M20 type

Partenavia P.68 type

Piper PA-23 type, PA-30 type, PA-39, PA31 type, PA-31/350 models, PA-32 type, PA-34 type

Piper PA-44 type and PA-34 type;

and aerial operations being banner towing, aerial spotting (fauna and radio tracking) and aerial survey in the following aircraft:

AERO COM, TURBO COM

BARON TRAVELAIR, B60, B65

BN-2

C310/320, C337, C340, C401/411, C414/421

NOMAD

PN68

PA23, PA31, PA34, PA44 and

Single engine aeroplanes with a maximum take-off weight of not more than 5700 kg

3. Resolution of this issue focused on whether CGA has complied with, or is capable of complying with, the provisions of the Civil Aviation Act 1998 ("the Act"), the Civil Aviation Regulations ("Regulations") and the Civil Aviation Orders ("Orders") and whether CGA has suitable procedures and practices to control the organisation and ensure that the AOC operations can be conducted or carried out safely. At the heart of this issue is the adequacy of CGA's Operations Manual.

Background

4. In reaching its decision, CASA concluded, amongst others things, that:

(a) CGA's Operations Manual, when reviewed by officers of CASA's Darwin District Office in July 1999, was found to be "generally and grossly deficient against the guidelines set out in Civil Aviation Advisory Publication ("CAAP") 215-1. This deficiency was particularly relevant against the many types in the AOC". Despite the urging by CASA, CGA failed to amend their Operations Manual until 18 November 1999. This did not reach a satisfactory standard and another, with further amendments, was lodged on 24 November 1999. However, a review of this revised version could not be completed before the AOC expired at the end of November 1999.

(b) CGA's Operations Manual did not have adequate detail covering low flying training and procedures. It was essential that these should be fully covered, so that aerial spotting (fauna and radio tracking) and aerial survey operations, which require low flying, could be safely flown.

(c) In light of these deficiencies of practices and procedures in Operations Manual, CASA was not satisfied that CGA could safety fly aerial spotting and aerial survey tasks. Further, CASA was not satisfied CGA had suitable procedures and practices to ensure all the types of aircraft listed in previously issued AOCs could be operated safely. Therefore, under the Civil Aviation Act 1988 ("the Act") s.28(1) CASA could not issue an AOC authorising CGA to conduct aerial spotting and aerial survey and the operating of the many different types of aircraft.

Legislative Framework

5. In so far as it is relevant, s. 28(1) of the Act provides that:

"If a person applies to CASA for an AOC, CASA must issue the AOC if, and only if:

(a) CASA is satisfied that the applicant has complied with, or is capable of complying with, the provisions of this Act, the regulations and the Civil Aviation Orders, that relate to safety, including provisions about the competence of persons to do anything that would be covered by the AOC; and

(b) CASA is satisfied about the following matters in relation to the applicant's organisation:

. . .

(vi) the organisation has suitable procedures and practices to control the organisation and ensure that the AOC operations can be conducted or carried out safely;

. . ".

6. Part XIII of the Regulations is concerned with air service operations. Division 2 is headed "Requirements to ensure the safety of commercial operations". Regulation 215 provides that:

"(1) An operator shall provide an operations manual for the use and guidance of the operations personnel of the operator.

Penalty: 25 penalty units.

(2) An operations manual shall contain such information, procedures and instructions with respect to the flight operations of all types of aircraft operated by the operator as are necessary to ensure the safe conduct of the flight operations (other than information, procedures or instructions that are set out in other documents required to be carried in the aircraft in pursuance of these regulations).

Penalty: 25 penalty units.

(3) CASA may give a direction:

(a) requiring the operator to include particular information, procedures and instructions in the operations manual; or

(b) requiring the operator to revise or vary the information, procedures and instructions contained in the operations manual.

(3A) an operator must not, without reasonable excuse, contravene a direction.

Penalty: 25 penalty units.

(4) A direction given under this regulation does not have effect in relation to a person until it has been served on the person.

(5) The operator shall revise the operations manual from time to time where necessary as the result of changes in the operator's operations, aircraft or equipment, or in the light of experience.

Penalty: 25 penalty units.

(6) An operator shall furnish copies of the operations manual to such of his or her or its personnel as the operator considers necessary, to CASA and to such other persons associated with the operator's operations as CASA considers necessary and directs.

Penalty: 25 penalty units.

(7) The operator shall ensure that a copy of the manual is kept in a convenient and accessible place for use by all members of the operations personnel of the operator who have not been furnished with a copy in pursuance of subregulation (6)

Penalty: 10 penalty units.

(8) The operator shall ensure that all amendments to the operations manual made in accordance with this regulation are incorporated in all copies of the operations manual kept within the operator's organisation and that copies of those amendments are forwarded to all persons to whom copies of the operations manual have been furnished in accordance with this regulation.

Penalty: 25 penalty units.

(9) Each member of the operations personnel of an operator shall comply with all instructions contained in the operations manual in so far as they relate to his or her duties or activities.

Penalty: 25 penalty units.

(10) In this regulation, a reference to the operations personnel of an operator shall be read as including a reference to a person undergoing flight training with that operator."

The Evidence

7. The documents lodged by the respondent pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 ("T documents") were admitted in evidence together with the following material:

Letter from Mr Robert Greenwood, District Flight Operations Manager, Moorabbin District Office of CASA, dated 21 May 1997 (Exhibit A);

Letter from Mr Robert Courtenay, Chief Pilot of CGA, to CASA dated 27 September, 1998 (Exhibit B);

CGA and Northwest Aerial Services Operations Manual (Exhibit C);

Report dated 13 January 2000 by Mr Neale Crawford, Flight Operations Inspector (level 1) with CASA, assessing CGA's Operations Manual and Compliance Statement of Australia Pty Ltd and Northwest Aerial Services (Exhibit 2);

Civil Aviation Advisory Publication, CAAP Nº 215-1(0) Guide to the Preparation of Operations Manuals September 1997 (Exhibit 3);

Civil Aviation Advisory Publication, CAAP Nº 235-1(1) Standard Passenger and Baggage Weights September 1990 (Exhibit 4);

Chapter 7.10, headed "Compliance with Legislation" and dated August 1999 from the Air Operator Certification Manual (Exhibit 5).

8. Mr Robert Courtenay, the Chief Pilot as well as sole director and shareholder of CGA, gave evidence in support of CGA's application. Mr Neale Crawford gave evidence in support of CASA's case.

9. Mr Courtenay said that he had owned aircraft since 1979 and began his first commercial operation in 1984 when his company, originally known as Courtenay and Gardner Aviation Pty Ltd, was first granted a charter licence. In 1994 the company changed to its present name.

10. Subject to certain conditions, an AOC continued to be issued to CGA in 1995, 1996, 1997 and 1998. They were issued in relation to various aircraft types and various operations. Until 1996, the bulk of CGA's flying operations were conducted from Moorabbin Airport in Victoria. CASA (or its predecessor) kept its documentation regarding CGA's operations at Moorabbin.

11. In 1994, CGA kept an aircraft at Broome in Western Australia. At that time, Mr Courtenay was a coastwatch pilot. In the main, the aircraft was reserved for his personal use but he did do some commercial work in it. Mr Courtenay moved that aircraft to Darwin at the end of 1996 and closed CGA's Broome office, where he had previously employed a full-time pilot and operations manager, at some time during 1997. He moved his operations to the Northern Territory in the year 1996/1997.

12. Mr Courtenay currently either owns or has interests in four types of aircraft - Cessna 180 and Cessna 185 (both high wing, single engine) and PA23-250 and PA31-310 (both low wing, twin engine). He has a full-time position with Lloyd Aviation Jet Charter for whom he flies approximately 400 hours each year. Mr Courtenay flies approximately 50 hours a year with CGA aircraft and those hours comprise mainly check flights and low level flying training. At the moment, the staff of CGA consists of four pilots (one in each of Melbourne and Leongatha and two in Darwin) in addition to himself. Those four pilots are engaged on a part time basis. He visits Melbourne three or four times a year and visits Moorabbin where CGA maintains an office. CGA, however, no longer employs a full-time pilot at that office. Instead, it is able to call upon the services of a senior pilot to cater for occasional demands. CGA also keeps a Cessna 185E at Mt Elizabeth station on the Gibbon Road. Mr Courtenay visits Mt Elizabeth about once each year. In the past, Mr Gary Gardner, who jointly owns three of the aircraft in which Mr Courtenay has an interest, spent a lot of time there. Mr Gardner is now based at Leongatha in Victoria.

13. Mr Courtenay received a letter from Mr Greenwood dated 21 May 1997. Mr Greenwood was then the District Flight Operations Manager in the Moorabbin District Office. In that letter, Mr Greenwood advised Mr Courtenay of the requirements of s. 28 of the Act and of the need to complete a Compliance Statement. He enclosed instructions of the manner in which the Compliance Statement should be completed and also enclosed a list of the legislative provisions with which an operator had to comply and those of which it must be aware (Exhibit A). Mr Greenwood also advised that a Compliance Statement was required by all operators regardless of whether or not they had held an AOC in the past.

14. In September 1997, CASA issued CAAP N^o. 215-1(0). That publication was said to provide:

"...the operator with a standardised framework within which to present that information essential to the conduct of his operations. While compliance with this CAAP is not mandatory, standardisation provides benefits to the operator in terms of ease of compilation and speed of assessment by CASA, and provides a readily recognisable document for use by operations personnel." (Exhibit 3)

15. On 27 September 1998, Mr Courtenay wrote to CASA's office in Melbourne and requested approval to conduct low level flying operations in accordance with the amendment to CGA's Operations Manual which he attached to the letter (Exhibit B and T documents, page 31). A Low Flying Permission was granted on 23 November 1998 (T documents, pages 25-29). As required by r. 215(3) of the Regulations, the permission directed that the instrument granting permission and its schedule be included in CGA's Operations Manual.

16. In July 1999, CGA's file was transferred from Moorabbin to Darwin. On 12 July 1999, Mr Courtenay wrote to CASA in Darwin enclosing a training syllabus and requesting approval to conduct low level training in respect of a pilot, Mr Leon Le Sueur (T documents, page 42). Mr Courtenay sought the approval to enable Mr Le Sueur to undertake survey work which CGA had contracted to perform for the Parks and Wildlife Commission. He had incurred considerable expense in modifying a Cessna in order to undertake the work. Mr "Spike" Jones, Flying Operations Inspector with CASA, advised Mr Courtenay that CGA's Operations Manual must include a section regarding Low Level Survey and Tracking (T documents, page 39). Mr Courtenay sent that section in a letter dated 16 July 1999 (T documents, pages 49-52). It was then discovered that, as noted in the previous paragraph, CGA had already been granted an approval for low flying by Mr Greenwood of CASA's Moorabbin office. Mr Courtenay said that he understood that Mr Jones regarded the amendment to the Operations Manual as adequate.

17. Mr Courtenay said that the decision to re-write CGA's Operations Manual had been his. No one told him that he needed to do it. He acknowledged that, from time to time, CASA officers said that they intended to look at CGA's AOC. They told him that he would not have the AOC issued with the same large number of types as had previously occurred. At one time, he was referred to a "pink book" which he was told had been co-authored by Mr Beach. The pink book was not offered to Mr Courtenay. He had submitted CGA's revised Operations Manual on 18 November 1999 but some material was missing. Although he had not intended that to happen, he had thought that it would help Mr Jones "to see where we were coming from in the new format". Mr Jones returned it to him and gave him about half a dozen comments on sticky notes. Mr Courtenay said that he thought that Mr Jones had "gone into it". He rectified all of the errors that Mr Jones had pointed out and returned it on 24 November 1999.

18. Mr Courtenay said that Mr Jones telephoned him on 25 November 1999 and asked him to tell him the types of aircraft he currently operates. That was a difficult question to answer as CGA operates various types of aircraft for various operations and those operations vary during the year. Mr Jones also told him that Mr Beach had said that the number of types of aircraft then on CGA's AOC were too many for one operator to supervise. In that regard, Mr Jones referred to Mr Beach's book. He also said that the AOC would only be issued for six months "to sort out any problems".

19. Mr Courtenay said that he had telephoned Mr Jones on 19 November 1999 to advise him that he would be overseas during December. He did so in order to see if this would create a problem for CASA. In particular, he asked whether there would be a surveillance during that period and he was told that there would not be but there could be an airworthiness check.

20. In giving evidence, Mr Courtenay stated that he wants CGA to continue to be authorised to be authorised to operate the wide range of types for two main reasons. The first is that it gives him flexibility in meeting the requirements of his clients and the second is that he prefers that his employed pilots fly his clients rather than make arrangements for other operators to fly his clients. He believes he serves his clients best by doing his business this way and has successfully followed this procedure for a number of years. CGA also holds an option to renew its contract with the Parks and Wildlife Commission. Mr Courtenay said that CGA successfully flew the contract in 1999 and that it had expired on 18 October 1999. It involved accurate low flying and renewal of the contract would bring another 220-250 hours commencing in February 2000. If CGA has to operate under the AOC as issued on 29 November 1999, it will not be able to exercise the option to take up the Parks and Wildlife as it does not permit low flying. That option to renew had been contained in a letter from Parks and Wildlife to CGA dated 25 November 1999.

21. When asked in cross-examination when he had last cross-hired one of the aircraft shown on his AOC, Mr Courtenay said that he would have to consult his records to be sure. He recalled two occasions on which CGA had cross-hired "not that long ago" and had also cross-hired an Aztec for 100 hours or so. In all, CGA had cross-hired on 30 to 50 occasions. Mr Courtenay holds endorsements on his licence in relation to all of the aircraft listed on the AOC other than the Baron Travelair and the Partenavia. He also said that he was in the process of selling the Navajo which has, for most of the past year, been operated by another operator. He had "a very real intention" to cross-hire this year.

22. Both in giving his evidence and during cross-examination, Mr Courtenay agreed that there were defects in both CGA's Compliance Statement and Operations Manual. Taking first the Compliance Statement, Chapter 7 of the Air Operator Certification Manual issued in August 1999 deals with its content and format (Exhibit 5). Section 27AA of the Act requires that an application for an AOC must be in a form prescribed by CASA. The instrument prescribing the application requires that certain applicants complete a statement indicating how they propose to ensure compliance with the Act, Regulations and Orders. That statement is the Compliance Statement. Chapter 7 states that:

"Completion of a Compliance Statement assists both the applicant in achieving regulatory compliance and CASA's project team to verify that compliance. Section 28(1)(a) of the Act requires CASA to be satisfied (verify) that an applicant has complied with, or is capable of complying with, the regulatory requirements that relate to safety.

The Compliance Statement is used in the evaluation of an applicant's Operations Manual and, where applicable, maintenance control manual." (Exhibit 5, paragraph 7.10.3)

23. In giving oral evidence, Mr Crawford said that information about the most recent version of a Compliance Statement issued in August 1999 could have been obtained from CASA's website or from one of its offices.

24. Chapter 7 sets out provisions of the Act, Regulations and Orders that could be applicable to low capacity RPT operations, charter or aerial work operations. Some items on the list are not applicable to all of these types of operation but only to one or two. The list is divided into two. One part lists all of those of which the operator for an AOC needs to be aware and, in being aware, complies with the requirement. They are marked "A". The other part lists those where the applicant needs to develop specific procedures to achieve compliance. They are marked "C". Compliance procedures need to be included in the company's relevant manuals. Where a direct obligation is placed on an operator, an asterisk is added to the letter "A" or "C" as appropriate. Chapter 7 goes on to give specific instructions to the applicant as to the manner in which the Compliance Statement should be completed.

25. Mr Courtenay said that this version of the Compliance Statement had not been communicated to him. He had followed the original format and felt that he should have been advised of the revision. Until very recently, he had no knowledge that CASA had a homepage let alone that Chapter 7 could be found at that site. Now that he is aware of the revision, he said, he will take it on board and remedy CGA's Compliance Statement.

26. In cross-examination, Mr Courtenay said that he did not accept that many of the references he had included in CGA's Compliance Statement were inappropriate. Various entries in that Compliance Statement were drawn to Mr Courtenay's attention during the hearing. We have set out in the following paragraphs those parts of the Compliance Statement which Mr Courtenay has acknowledged have some inadequacy. We have not included those parts in which he does not make such an acknowledgment and nor have we made an assessment of the remaining parts of the Compliance Statement which were not specifically drawn to Mr Courtenay's attention during the hearing.

27. Mr Courtenay's attention was directed to the requirement of r. 43B requiring time-in-service to be recorded on the maintenance release. He accepted that was so. The Compliance Statement refers the reader to paragraphs A.3.1 and A.3.2.1 for the procedures which ensure compliance with r. 43B. Mr Courtenay accepted that A.3.1 does not address the issue. The appropriate reference is A.3.2.1. That reads:

"Use of Maintenance Release

The Maintenance Release contains the information regarding the current serviceability state of the aircraft including the period of currency.

The period of currency of a daily inspection is 24 hours. On the first flight of each day, the Pilot in Command will ensure that a daily inspection as necessary to ensure compliance has been conducted by a suitably qualified pilot or LAME and that the maintenance release has been signed accordingly.

Pilots are required to conduct a thorough check of the Maintenance Release as part of the preparation for any information which may have a bearing on the serviceability of the aircraft or the conduct of any given flight or series of flights.

Pilots are also required to take care in the neat, accurate and complete entry of details in the Maintenance Release and to assist the company by alerting the appropriate Responsible Person as to any upcoming scheduled maintenance which may affect operational planning.

CAR 43B"

When asked how this paragraph deals with the requirements of r. 43B, Mr Courtenay said that it was necessary to read the whole paragraph but acknowledged that the paragraph "does not say the exact words" of the regulation.

28. In the Compliance Statement, the procedures set out in paragraphs A.3.1 and A.3.2.1 are said to set out procedures to comply with r. 47. That regulation sets out the circumstances in which a maintenance release ceases to be in force. Mr Courtenay agreed that neither paragraph of the Operations Manual is relevant to that regulation. He agreed that, furthermore, neither paragraph was applicable to the requirements of r. 49 which concerns unserviceabilities to be endorsed on maintenance releases. That was so even though both had been shown as relevant in the Compliance Statement. As there is no permissible unserviceabilities schedule at present, Mr Courtenay also agreed that the item should have been marked as "not applicable".

29. Regulation 50 requires defects and major damage to be endorsed on the maintenance release. The Compliance Statement referred to paragraph A.3.1 and A.3.2.1. There is no paragraph A.3.1 in the Operations Manual. Mr Courtenay did not agree that paragraph A.3.2.1 does not cover this matter. While the specific reference is to "scheduled maintenance", unscheduled maintenance was included by inference. There is a requirement, he said, to include all details. He did not think that there was any need to explain what those details are as he thought them self explanatory.

30. Regulation 5.05 requires that:

"(1) If:

(a) a person holds a certificate of validation for an overseas authorisation; and

(b) the person is required to hold an overseas medical certificate for the authorisation to exercise the authority given by the authorisation in the country in which the authorisation was issued;

the person must not perform a duty authorised by the certificate of validation unless the person holds an overseas medical certificate for the authorisation that:

(c) is valid; and

(d) is current; and

(e) is not suspended or cancelled.

Penalty: 50 penalty units."

31. The Compliance Statement refers to paragraphs A.2.1.1, A.3.1.13 and A.3.1 as the relevant sections of the Operations Manual. Mr Courtenay agreed that A.2.1.1 and A.3.1.13 do not exist and so are incorrect references. The reference should have been to paragraph A.3.1.12. In cross-examination, he agreed that he did not generally have overseas pilots working for CGA. Therefore, he agreed, he should have marked r. 5.05 as not applicable.

32. Regulation 5.108 requires that a commercial (aeroplane) pilot must not fly an aeroplane as a pilot in command unless he or she has, within a period of two years immediately before the proposed flight, satisfactorily completed an aeroplane flight review. A flight review must be conducted in certain circumstances and by an appropriate person. An "appropriate person" means an authorised flight instructor who holds a grade of flight instructor (aeroplane) rating that authorises him or her to conduct flight reviews in aeroplanes, an approved testing officer or a CASA flying operations inspector (r. 5.108(8)).

33. The Compliance Statement refers to paragraphs A.3.1.3 and A.3.1.12 of the Operations Manual. Paragraph A.3.1.3 sets out the records maintained by CGA for each pilot and provides that, while maintenance of those records is the responsibility of the Chief Pilot, all pilots are expected to co-operate in ensuring they are kept up to date. Mr Courtenay said that it is the responsibility of the Chief Pilot to maintain records and ensure that pilots keep up to date. He agreed that A.3.1.3 does not adequately deal with the requirements of r. 5.108. He also agreed that paragraph A.3.1.12 does not address the requirements of that regulation at all.

34. Regulation 5.109 requires a commercial (aeroplane) pilot to have recent experience specified in the regulation. The Compliance Statement referred to paragraphs A.2.7 (which Mr Courtenay acknowledged does not exist), A.3.1.3 and A.3.1.12. When it was suggested to Mr Courtenay that A.3.1.3 refers to currency but does not set out any procedures to achieve currency, he replied that it seemed "a fairly fine point" but, given the issue had been raised, the paragraph could be improved upon. Paragraph A.3.1.12, he agreed, is irrelevant because it refers to medical matters. A better reference, Mr Courtenay continued, would have been paragraph A.3.1.7 dealing with qualifications and he could not be sure that it could not be improved upon.

35. Regulation 5.110 sets out the requirements to be met by a commercial (aeroplane) pilot who is over 60 years of age. The Compliance Statement refers to paragraphs A.3.1.3 and A.3.1.7 of the Operations Manual. We find that paragraph A.3.1.3 sets out only records to be kept and does not specifically deal with the manner in which the requirements of r. 5.110 are to be met. Similarly, paragraph A.3.1.7 does not set out any procedures to ensure that its requirements are met.

36. Regulation 120 provides that weather reports are not to be used unless made with authority. Against this had been noted paragraph A.3.6.2. That paragraph is concerned with flight planning and requires that all necessary information, including that relating to the weather, must be obtained and must be ensured to be accurate and correct as far as may reasonably be assessed. There is no mention in the paragraph, Mr Courtenay acknowledged, of the need to use only weather reports made with the authority of the Director of Meteorology or by a person approved by CASA.

37. Regulation 139 requires certain documents to be carried in Australian aircraft. While correctly referring to two relevant paragraphs of the Operations Manual, Mr Courtenay agreed that he had incorrectly referred to paragraph A.1.10. That paragraph does not exist.

38. Regulation 141 relates to flying training areas and provides that CASA may authorise certain types of flying over part of such an area and also prohibits a person from engaging in certain activities in relation to flying training. The Compliance Statement refers to paragraphs A.6.4 and A.3.7.12. Mr Courtenay agreed that the former paragraph does not exist. The reference should have been to A.3.6.4 relating to aerodromes. That paragraph is relevant, he said, in that the choice of aerodrome is part of planning for a training exercise.

39. Turning to the Operations Manual, Mr Courtenay said that the document in evidence represented the document apart from certain documents and a dangerous goods manual required to be included by CASA. In giving evidence, he said that he needed to go through it again. A few things had not been adequately reflected in the Operations Manual but are adequately covered in the manner in which CGA operates. Again, we have in the following paragraphs referred only to those paragraphs which Mr Courtenay acknowledged either had inadequacies or could be improved.

40. Paragraphs A.3.5.4 and A.3.5.5 of the Operations Manual are concerned with fuel consumption monitoring and state:

"A.3.5.4 Fuel Consumption Monitoring

Part B of this manual sets out planning figures for each aircraft type operated by the Company. Whereas it is permissible for Pilots to use these figures for flight planning purposes, it is the responsibility of each Pilot to conduct his or her own checks, on a regular basis of actual fuel consumption for each aircraft type that is being flown as individual techniques will cause variation in fuel consumption.

The Chief Pilot will conduct routine checks, either independently, based on documentation submitted, or in consultation with individual Pilots to ensure planned fuel consumption figures are a true representation.

A.3.5.5 Fuel Documentation

When a Company aircraft is refueled (sic) away form (sic) is Base, the Pilot in Command must ensure that the fuel uptake is entered on the Flight Time Record and that documentation is received from the supplier.

Pilots are required to submit all fuel dockets, at the same time as submitting the flight documentation to which they relate to the Base Manager."

41. Regulation 220 provides that:

"(1) An operator shall include in the operator's operations manual specific instructions for the computation of the quantities of fuel to be carried on each route, having regard to all the circumstances of the operations, including the possibility of failure of an engine en route.

Penalty: 50 penalty units.

(2) An operator shall maintain a record of the fuel remaining in the tanks at the end of each scheduled flight and shall review continuously the adequacy of the instructions in respect of the fuel to be carried in the light of that record, and shall make any such record available to CASA, upon request.

Penalty for a contravention of this subregulation: 25 penalty units."

42. Mr Crawford had observed that paragraph A.3.5.4 does not include a document showing full details of the fuel remaining, fuel added, fuel on board and fuel used record. The only documentation shown is a fuel purchased record and the only other documentation required to be kept in relation to fuel is found in the pilot's flight time record. He also observed that the Operations Manual does not contain any firm instructions as to the frequency with which the Chief Pilot should calculate and monitor each aircraft's fuel consumption. Mr Crawford recommended fuel consumptions in the Operations Manual should be reviewed and amended as needed.

43. In giving evidence, Mr Courtenay knew the requirements of r. 220. He said that, during November and December 1999, CGA had used time sheets different from that in the Operations Manual. The time sheets now used contain a "fuel remaining" column and had been adopted on the advice of one of his pilots. Mr Courtenay said that he did not believe that the requirements of r. 220 went a long way to achieving safety in small aircraft. In larger aircraft, fuel gauges are accurate but they are notoriously unreliable in small aircraft. Simply knowing the fuel remaining means that an assumption must be made about the fuel consumption of the aircraft. Mr Courtenay said that he has always thought that there was a need to know the rate of fuel consumption as it is affected by the slight differences between pilots as well as such matters as the weather and whether long or short flights are undertaken. In view of that, Mr Courtenay said, he requires his pilots to note their actual fuel consumption and so has them record the amount of fuel they add after a flight.

44. Mr Crawford had referred to paragraph A.3.1.3 of the Operations Manual. That paragraph provides that CGA maintains records for each pilot in relation to a number of "subjects" which are then listed. Those subjects do not include a reference to flight and duty records. Flight and duty records are relevant in ensuring compliance with the flight time limitations set out in CAO 48. Mr Courtenay agreed with Mr Paice that, under the Operations Manual, CGA's pilots are not required to give him daily flight and duty records. He agreed that there is a reference elsewhere in the manual to their having to give them to him within seven days past the end of each month. In practice, he said, he ensures that the pilots keep them on a regular basis and has a procedure to ensure that they do. There is no direction to that effect in the Operations Manual but he did not agree that it was deficient in omitting it. The reality is that he requires the pilots' paperwork to be up to date. Mr Courtenay said that he is able to ensure their compliance with CAO 48 by keeping records in CGA's office. The reality is that, apart from those engaged in survey flying, the pilots do not fly anywhere near the number of hours referred to in CAO 48.

45. Mr Courtenay agreed with Mr Crawford's observation that A1.4.1 of the Operations Manual does not include some of the responsibilities of a Chief Pilot as set out in CAO 82.0 Appendix 1 paragraph 2. Examples of omissions given by Mr Crawford were allocation of aircraft to tasks and issuing certificates of proficiency for CAO 20.11. Mr Courtenay agreed that he would amend the Operations Manual to reflect all of the Chief Pilot's responsibilities. He could not explain why it had not done so originally.

46. This matter was explored further in cross-examination. CAO20.11 relates to emergency equipment and requirements for passenger control in emergencies. A crew member cannot be assigned, or accept assignment, to emergency duties in certain aircraft unless he or she has undertaken and passed the proficiency test specified in Appendix IV of CAO20.11 (12.1). That proficiency test must be conducted by a CASA examiner, a person appointed and approved by the training and checking organisation and approved by the Secretary, or, for charter operations, by the Chief Pilot (12.3). Mr Courtenay said that he had delegated his responsibilities as Chief Pilot under CAO20.11 to another pilot but not to a person authorised by 12.3. He said that he had delegated the authority by means of a formal letter which he had made available to CASA. The delegation had never been queried by CASA and he had not knowingly delegated the authority incorrectly.

47. With regard to Mr Crawford's comment that A.3.1.11.2 of the Operations Manual made no mention of day/night 90 day recency, IFR recency or radio let down recency (NDB, DME, ILS or VOR), Mr Courtenay said that he accepted its substance. He also accepted that the forms at the back of A.3.1 are not marked as appendices. The form at A2.10.(F) for flight time, duty time and recent experience certificate for part-time and newly recruited pilots refers, Mr Courtenay agreed, to the Civil Aviation Authority rather than to CASA. The form is a declaration signed by the pilot himself or herself as to his or her own recency. Mr Courtenay said in giving evidence that he did not understand Mr Crawford's criticism that it is not sufficient to have the pilot certify his or her own recency. It is, instead, a matter for the Chief Pilot. Mr Courtenay said that the form was intended for pilots who did not fly with CGA very often. Those pilots also maintain normal flight and duty sheets which are inspected from time to time by the Chief Pilot.

48. In cross-examination, Mr Courtenay explained that he maintains a board in his office to cover the currency requirements of his pilots. He agreed that this was not explained in his Operations Manual and that, in order to know whether he has complied with his obligations regarding currency, it is necessary to know CGA's systems. Mr Courtenay said that they would become apparent during a surveillance. He would expect to have to demonstrate his system at that time.

49. Mr Courtenay did not agree with Mr Paice that the purpose of an Operations Manual is to demonstrate compliance to CASA. While that was a purpose and it provides a window through which CASA can look to see what is going on in CGA, its primary purpose is to inform staff how things are to be done. When asked how his pilots know what is expected of them in relation to currency, Mr Courtenay said that it "again comes back to having faith in particular pilots to be responsible". It is not something with which he has had a problem. He has made it quite clear to his pilots that he takes a strict view of the requirements of CAO48. Once he has communicated that to pilots who join CGA from another organisation, he has not had a problem.

50. Mr Courtenay agreed that CAO 20.11 provides that proficiency is type specific and that the proficiency certificate makes no provision for that. He agreed that should be corrected.

51. In giving his evidence, Mr Courtenay was asked about the Pilot Duty Sheet included in CGA's Operations Manual. Mr Crawford had commented that it was difficult to understand how the form worked and referred specifically to the columns headed "DAY". Mr Courtenay said that he did not understand the comment. The form is a pilot duty sheet which he had copied from another company. He would have to look into it. The Pilot Duty Sheet was also the subject of questions during cross-examination. Mr Courtenay explained that people need to be taken through it. Pilots start at different points on the sheet as it represents a continual 14 day rotation. The starting point is nominated by Mr Courtenay. He agreed that the Operations Manual does not contain any instructions on how to use the sheet.

52. A.3.2.1 of the Operations Manual is concerned with the use of maintenance releases. It provides:

"The Maintenance Release contains the information regarding the current serviceability state of the aircraft including the period of currency.

The period of currency of a daily inspection is 24 hours. On the first flight of each day, the Pilot in Command will ensure that a daily inspection as necessary to ensure compliance has been conducted by a suitably qualified pilot or LAME and that the maintenance release has been signed accordingly.

Pilots are required to conduct a thorough check of the Maintenance Release as part of their pre-flight preparation for any information which may have a bearing on the serviceability of the aircraft or the conduct of any given flight or series of flights.

Pilots are also required to take care in the neat, accurate and complete entry of details in the Maintenance Release and to assist the company by alerting the appropriate Responsible Person as to any upcoming scheduled maintenance which may affect operational planning.

REF: CAR 43B"

53. Mr Courtenay agreed with Mr Crawford's comment that A3.2.1 has no explanation of how flight time or time in service is calculated and recorded as there is no trip record, daily flight sheet or other record mentioned or sample shown. During cross-examination, Mr Courtenay also agreed that there is no reference in the Operations Manual to when a flight commences with respect to maintenance releases and pilot records and when it stops. In giving his evidence, he said that CGA has a daily flight sheet but that it is not mentioned in the Operations Manual. Its omission in the Operations Manual has no bearing on safety but it would "tidy things up" if the Operations Manual were to include a reference to the daily flight sheet.

54. Mr Crawford had noted that there is no mention in the Operations Manual of what constitutes a "major" defect or "major" damage, or of grounding an aircraft following excessive flight or ground loads. There is no mention of using the maintenance release to note that the aircraft is unairworthy and so notify others who might fly it. We note that A.3.2.2 requires that any unserviceability be entered in the appropriate place of the Maintenance Release. Mr Courtenay said that he emphasises to his pilots of the need to enter any unserviceability on the Maintenance Release.

55. Paragraph A.3.2.3 of the Operations Manual states that:

"Pilots are required as part of their pre-flight preparation to ensure that all documents required under CAR 139 to be carried in the aircraft are present, complete and current.

REF: CAR 139"

Mr Crawford commented that the Operations Manual must mention the documents required for various types and lengths of operations. In addition, it must also set additional documents such as those specified by CGA e.g. pilot operating handbook for aircraft type and a weight and balance document.

56. Mr Courtenay said that the Regulations set out what is required to be carried. They do not require a pilot to carry a weight and balance sheet. Despite that, CGA's pilots do carry load and balance sheets for each flight. He believed that the Operations Manual adequately covered his obligations but was "quite prepared to add something to make it clear".

57. In cross-examination, Mr Courtenay explained that the weight and balance sheet carried in the aircraft is found in the flight manual carried on the aircraft. For the aircraft CGA has on line, copies of sheets are found in the office. If a pilot has doubts about weight or balance and there is an explanation in the manual, he or she refers to that. If not, it is a matter of common sense. Mr Courtenay considered that there is enough generic material in the Operations Manual to assist the pilot in this regard.

58. In cross-examination, Mr Courtenay gave evidence of the procedures to be followed by CGA's pilots in relation to ensuring that aircraft are not overloaded and offloading. Paragraph A.3.3.2.3 follows paragraphs setting out standard passenger weights. It states that if, after adding passenger weights and that of all other relevant items, the total is within 50kg of any applicable maximum weight for the aircraft, the standard passenger weights may not be used and each must be weighed. He agreed that those procedures were not set out in the Operations Manual and that it did not contain a load rejection policy. He also agreed that the Operations Manual did not refer to the warning given in CAAP 235(1) that standard weights should not be used for aircraft with seven seats or fewer.

59. Paragraph A.3.6.4 is headed "Aerodromes". It provides that the Pilot in Command is responsible to ensure that any aerodrome which is intended, or likely to be used, as a point of departure, destination or as an alternate is suitable for that intended purpose. The responsibility includes, but is not limited to, factors listed in the paragraph. Mr Crawford noted that the paragraph did not include any reference to aerodromes other than licensed aerodromes or to the need for the Chief Pilot to have and update an Authorised Landing Area directory at each of the company's applicable company bases. In Mr Crawford's view, the pilot is left to his own devices and is made totally responsible in relation to Authorised Landing Areas. Mr Courtenay said that CGA maintains four volumes containing details of Authorised Landing Areas and those details refer to aerodromes in the Northern Territory, Western Australia and Victoria. The information in those volumes is not accurate, he said, and the most important thing for a pilot to do is to telephone the owner of the property on which a strip is located. Mr Courtenay said that he felt that this was a matter for the pilot but he was happy to make it clear that it was also the Chief Pilot's responsibility. During cross-examination, Mr Courtenay agreed that the Operations Manual should refer to the volumes of ALAs. He also agreed that it would be useful to formalise his procedures for updating the information in the ALAs by informing pilots that it is their responsibility to advise him of any variations between particular ALAs and their description in the volumes.

60. Paragraph 3.6.10 is concerned with test flights. Mr Courtenay accepted Mr Crawford's comment that the paragraph should include a statement that test flights are to be normally in day VFR only unless there is a requirement otherwise to check some item of equipment.

61. Mr Courtenay agreed with Mr Crawford's comment that paragraph A.3.6.19 does not contain an instruction that company aircraft not fitted with de-icing are not to be flight planned into conditions of known or forecast icing conditions. The Operations Manual would be rectified.

62. He also said that he could amend paragraph A.3.6.20 of the Operations Manual to address flights of single engine aircraft over water. Mr Courtenay said that he was not "real keen" on single engine aircraft flying over water and adopted a "pretty conservative attitude to all that".

63. In Appendix 1 to section B.1 of the Operations Manual, instructions are included regarding engine failure during take off and during flight. In regard to the latter, the first instruction is that the pilot "close the throttle, gain height with excess speed, trim for 70 knots." If, after certain other procedures have been carried out, the cause of the failure cannot be rectified, the pilot is instructed to maintain 70 knots while manoeuvring. The pilot then follows certain other procedures. Mr Crawford noted that the procedures represent generic procedures for all types of aircraft. The airspeed of 70 knots would be dangerously low for some aircraft types (e.g. B36, C210) and too high for some others (e.g. DH82). Mr Courtenay said that Mr Crawford's comment was valid. The pilot in command should adopt the best glide speed for the aircraft. That should be calculated. The Operations Manual could be amended with a couple of sentences.

64. Mr Courtenay agreed with Mr Crawford's comment that the reference to the jettisoning of external stores and internal stores in Appendix 1 has been taken from another operator's Operations Manual and mistakenly included in CGA's. It is not a safety issue, he said, but is irrelevant in CGA's Operations Manual.

65. Paragraph B.2.1 is headed "flight planning". It provides that the pilot in command is responsible to ensure that all of the matters set out in the paragraph have been considered during the flight planning phase. Where necessary, the pilot in command must ensure that all necessary information has been obtained and is accurate and correct as far as may reasonably be assessed. Among the matters to consider is the aircraft's suitability and serviceability for the actual task. Mr Crawford had noted that consideration of aircraft suitability and serviceability of aircraft is a matter for the Chief Pilot and not a matter for the pilot in command. Mr Courtenay said in response that CGA's aircraft are flown either by a base pilot or a well trusted employed pilot who has been employed for a long time. He "guessed" that he could add words that the paragraph does not absolve the Chief Pilot of responsibility but does not add to the safety of the operation.

66. Mr Crawford said that the operational detail given in Part D of the Operations Manual in relation to low level flying is inadequate for a high risk task. Insufficient details were given regarding such matters as aircraft speeds, configuration and fuel system management. The training syllabus was insufficiently detailed as it did not address matters such as whether the operator would approve the course and the assessment standards and where documentation would be kept. In giving his evidence, Mr Courtenay said that he was quite happy to make the changes requested but was somewhat disillusioned with CASA over the matter. His disillusionment arose from the fact that he had previously submitted this section of his Operations Manual to CASA on two occasions and it had been approved on two occasions.

67. The Operations Manual does not contain a "tree diagram" setting out who is accountable to whom and who reports to whom in the organisation. Mr Courtenay acknowledged that it does not but said that, in the context of an operation as small as CGA's, the lines of accountability and responsibility are quite clear. He did not agree with Mr Paice's suggestion that an operation with some 40 aircraft on its AOC could not be described as small. If CGA were operating 40 aircraft, he said, it would not be a small operation. Those 40 aircraft are not, however, a reflection of the size of the operation but simply of its flexibility.

68. Mr Courtenay agreed that there was no mention made of the person to whom the Chief Pilot reports or that the Chief Pilot of CGA and its director are one and the same person. No reference is made to the person to whom the pilot at Mt Elizabeth reports and nor is there any reference made to whom the maintenance organisation reports. In practice, Mr Courtenay said, no-one is left in any doubt as to the lines of accountability and responsibility. He would have thought that the lines would have been clear also to CASA. In that regard he had noted, however, that CASA had made a mistake on one occasion in the past.

69. In his general comments, Mr Crawford had noted that:

"... the whole thrust of this OM appears to put the onus on the PIC in many instances to ensure that certain things are done or procedures followed on an individual basis, rather than the company put systems in place and supervisory procedures in place on the part of the CP to ensure compliance."

70. Mr Courtenay said in relation to this remark that CGA's pilots would feel well supported. They can pick up an Operations Manual and find numerous details in it. He did not feel that he had experienced any trouble in the past as a Chief Pilot supervising aircraft. The history of his operation would vindicate that. He has had fifteen years experience in holding an AOC and has twenty five years of experience in aviation. His experience has included flying in sophisticated aviation operations. Although he was employed elsewhere, Mr Courtenay felt that he had more than enough time to supervise what was going on in CGA.

Consideration

71. At the outset, we note that s. 28 of the Act does not on its face require an applicant for an AOC to have an Operations Manual, or an Operations Manual containing certain information, before it may be issued with an AOC. In practice, however, it effectively does. That comes about from the fact that CASA may only issue an AOC if it is satisfied of certain matters. Those matters include the applicant's having "... complied with, or is capable of complying with, the provisions of the Act, regulations or CAOs that relate to safety ..." (s.28(1)). Sub-regulation 215(2) requires that, subject to certain exceptions relating to documentation otherwise required to be carried in the aircraft, an Operations Manual "... shall contain such information, procedures and instructions with respect to the flight operations of all types of aircraft operated by the operator as are necessary to ensure the safe conduct of the flight operations ...". This is a "... provision of ... the regulations ... that relate to safety."

72. It is not enough that the applicant for an AOC is capable of complying with the requirements of r. 215. The obligation contained in that regulation is expressed in absolute terms and is an obligation which is capable of being complied with before an application is lodged. It should be contrasted with an obligation such as that in CAO 20.11.12 which requires aircrew to undertake annually a proficiency test in the execution of emergency procedures. That is a provision of the Civil Aviation Orders and it relates to safety. It is not an obligation which can be assessed once and for all at the time of the application for an AOC and a determination made as to whether or not the applicant has complied with it. Instead, it is an ongoing and recurring obligation. It follows that it is one in relation to which it is appropriate to consider whether the applicant is capable of complying. Although past practice may be relevant in that consideration, the issue is one of present and future capacity and not one of past compliance.

73. In summarising the evidence given by Mr Courtenay in relation to a number of Mr Crawford's criticisms of CGA's Operations Manual, we have referred to his acknowledgment of inadequacies in it. Those acknowledgments are numerous and, in view of our own reading of the Operations Manual and having heard both his evidence and that of Mr Crawford, we are satisfied that they are appropriately made. Having said that, we have made findings of fact reflecting those acknowledgments but will not set each of them out as they are apparent in the previous paragraphs.

74. A small number of the inadequacies of the Operations Manual are simply that the references are irrelevant to the operations of CGA. Others, however, relate to safety. Examples include:

  the absence of a tree diagram showing the lines of accountability and responsibility in CGA. This impinges upon safety as operational employees would not know to whom they are responsible and for what. Its absence is not overcome by Mr Courtenay's evidence to the effect that everyone is aware of the lines within CGA. Regulation 215 requires that the Operations Manual contain the specified information and not simply that appropriate procedures are in place regardless of whether or not they are reflected in the Operations Manual.

  the absence of any definition of a defect or "major" damage in the Operations Manual and the absence of any specific requirement to enter such defect or major damage on the maintenance release. Mr Courtenay did not accept that paragraph A.3.2.1 does not deal adequately with this. We do not accept his evidence in that regard. In our view, the substance of the obligation imposed by r. 50 requires specific reference in the Operations Manual. Entering a defect or major damage on the maintenance release is a matter that is necessary to ensure safe conduct of flight operations.

  the manner in which fuel consumption is monitored and documented. On the basis of the material in the Operations Manual and after considering Mr Courtenay's evidence, we are not satisfied that the Operations Manual meets the obligation imposed upon CGA by r. 220. We understand that Mr Courtenay states that the time sheets he now uses require the fuel remaining to be entered, that requirement does not appear in the Operations Manual. Regulation 220 relates to safety and the proper monitoring of fuel consumption is a matter that is necessary to ensure safe conduct of flight operations.

  the gliding speed of 70 knots following an engine failure of a single engine aircraft is not applicable to all aircraft included on CGA's AOC. In the case of some, it is too high and, in the case of others, too low. In prescribing a single gliding speed of 70 knots for all aircraft, the Operations Manual does not contain information necessary to ensure the safe conduct of flight operations in relation to all of CGA's aircraft.

  Part D of the Operations Manual is inadequate. We make that finding after considering its substance and considering the evidence of both Mr Courtenay and Mr Crawford. Again, that is a matter which needs to be addressed in the Operations Manual to ensure the safe conduct of low level flight operations. That can be addressed by either including the information or by cross-referencing to an acceptable publication on the subject.

  paragraph A.3.3.2.3 of the Operations Manual does not adequately address passenger and baggage weights in relation to aircraft having seven or fewer seats. In failing to refer to CAAP 235-1 - Standard Passenger and Baggage Weights (September 1990), we are satisfied that, by failing to provide proper procedures to ensure that all aircraft operating under the AOC are not overloaded, it does not ensure the safe conduct of flight operations.

  the Operations Manual does not ensure that proper flight and duty records are maintained and so does not provide a procedure to ensure that CAO 48 is complied with. Again, we find, the omission of such a procedure does not ensure the safe conduct of flight operations.

75. We find that a superseded form of Compliance Statement has been used by CGA. That is not something which weighs against CGA for, as CAAP N^o.215-1(0) acknowledges, it is not necessary to follow the framework suggested by CASA. Having regard to the Compliance Statement and after taking into account all of the evidence, however, we are satisfied that there are, quite apart from matters of format, a number of discrepancies. In the course of his evidence, Mr Courtenay acknowledged those discrepancies and we are satisfied that those discrepancies appear in the Compliance Statement. Again, we will not set them out in detail as we have already done so in summarising Mr Courtenay's evidence. In summary, we find that those discrepancies comprise a number of the references to a number of paragraphs of the Operations Manual said to show compliance were either incorrect, non-existent or irrelevant.

76. Taking all of these matters into account, we are not satisfied that CGA has complied with its obligation to provide, for the use and guidance of its operations personnel, an operations manual which contains such information, procedures and instructions with respect to the flight operations of all types of aircraft that it operates as are necessary to ensure safe conduct of flight operations. As we have identified the requirement to have such an operations manual as a requirement of the regulations with which CGA must comply, we are not satisfied that it meets the requirements of s.28(1)(a) of the Act. As that paragraph, among others, must be complied with before an AOC may be issued, we do not need to consider whether, in accordance with s. 28(1)(b)(vi), CGA has suitable procedures and practices to control the organisation and ensure that the AOC operations can be conducted or carried out safely.

77. For the reasons we have given, we have decided to affirm the decision of the respondent dated 29 November, 1999.

I certify that the seventy seven preceding paragraphs are a true copy of the reasons for the decision herein of Miss S A Forgie (Deputy President) and Mr A Argent, Member.

Signed: ................................

Dates of Hearing 19 and 20 January 2000

Date of Decision 7 February 2000

Counsel for Applicant Mr McIntyre

Solicitor for Applicant Ward Kellar

Counsel for Respondent Mr R Paice