Torres: stick your head in the sand now.. .. .<a href="http://www.austlii.edu.au/au/cases/cth/aat/1999/329.html" target="_blank">http://www.austlii.edu.au/au/cases/cth/aat/1999/329.html</a>. .. .FINDINGS . .. .The Regular Public Transport Issue . .. .175. The respondent contended, and relied on such a contention as one of the bases for cancelling the applicant's AOC, that the applicant operated RPT flights in contravention of its AOC conditions. There was much evidence led on this issue, and I find it necessary to explore the evidence in more detail. . .. .176. The distinction between an RPT operation and a charter operation can be found in the CARS. RPT is defined in CAR 206(1)(c) as: . .. .Charter purposes are defined in CAR 206 (1)(b): . .. .(i) the carriage of passengers or cargo for hire or reward to or from any place, other than carriage in accordance with fixed schedules to and from . .. .(ii) the carriage, in accordance with fixed schedules to and from fixed terminals, of passengers or cargo or passengers and cargo in circumstances in which the accommodation in the aircraft is not available for use by persons generally,." . .. .177. Mr Glynn submitted that the operations of the applicant were somewhat "hybrid", and fell somewhere in between pure charter operations and RPT operations. He pointed out that, although it was a "grey area", the operations did not fall squarely within the definition of RPT found in CAR 206 (1)(c). Mr Harvey submitted that the applicant's operation has to be classified as either charter operations or RPT and cannot be classified anywhere in between. He submitted that the applicant has not complied strictly with a charter operation where the charterer can exclude certain passengers. In his submission the evidence was quite clear that the services of transportation were open to persons generally who were willing to pay the fare to get to their destination. Any ambiguity that can be found within the regulations must be interpreted to promote the purposes of the Act, and that is, according to Mr Harvey to promote safety. Since the standards of safety are necessarily higher under an RPT operation, the applicant should not be permitted to operate an RPT operation without incurring the cost effort in ensuring that higher standard and obtaining an appropriate AOC. . .. .178. In determining whether in fact the applicant operated an RPT operation without the necessary AOC, I must first look to the elements of an RPT as outlined in the CAR 1998. 1 take these to be: . .(a) transporting persons or cargo for persons generally; . .(b) for hire or reward; . .(c) in accordance with fixed schedules; . .(d) to and from fixed terminals; . .(e) over specific routes. . .. .(a) transporting persons or cargo for persons generally . .. .179. It is clear from the evidence in the hearing that the applicant ran the business of transporting persons and cargo for persons. However, the touchstone between RPT and charter purposes rests on the word "generally". This is because under CAR 206(1)(b)(ii) there can be an operation classified as charter that satisfies all the elements of RPT excepting the availability for use by persons generally. This is commonly known as a closed charter. A similar provision was dealt with by Bollen J in (Cth), which is in similar terms to CAR 206(1)(b)(ii). There it was stated at 79: . .. .180. In this hearing, Mr Mostafa gave evidence that prospective customers would contact the applicant's office, or its booking agents and request a seat on a flight, rather than requesting all of the accommodation on the aircraft. He detailed what he termed a "shared charter" where individuals would request a seat on an aircraft and the applicant would group these individuals together in the circumstances described above at paragraph 41. The examination of various passenger and freight manifests undertaken by Mr Harvey in his cross-examination of Mr Mostafa substantiates that the applicant made accommodation available to persons and cargo generally. In fact, the question was put directly to Mr Mostafa whether accommodation was made available to anyone, provided there was space for them. Mr Mostafa agreed. Therefore I find the first element of RPT operation to be satisfied. . .. .(b) for hire and reward. .. .181. It is clear from the evidence in this hearing that the applicant transported persons and cargo for hire and reward. Mr Mostafa agreed that the applicant charged a set fee per seat on flights that it conducted between various islands and the passengers were issued with receipts for the money they had spent. . . . .(c) in accordance with fixed schedules. .. .182. Mr Glynn submitted that the applicant's operations did not satisfy this element of having fixed schedules because the schedule changed daily and was only set at 4.00pm the previous day for the proposed travel. Mr Harvey submitted that the schedule was fixed once the details of the flights for the following day were determined by the applicant. I agree with Mr Harvey's submissions that the fixing of the schedules was done once the applicant had determined the details of the flights it was to operate on the following day. I find it unnecessary to have a printed booklet or pamphlet that indicates the times and destinations of flights on a daily basis similar to that of the large commercial airlines operating within Australia. . .. .(d) to and from fixed terminals . .. .183. I reject Mr Glynn's submission that "fixed terminal" means some building near the . .airstrip where passengers can gather. Mr Harvey submitted that the terminal is "fixed" when the operator determines the route to be flown and the passenger does not have the right to alter the route. In support of this submission, Mr Harvey referred to a report of the Seaview Royal Commission which dealt with the question whether Seaview Air was conducting an unauthorised RPT service. In that report, one view as to what the legislature envisaged by "fixed schedules" and "fixed terminals" was that the schedules and terminals are fixed by the aircraft operator rather than the charter of the aircraft. This was plainly the case with the applicant's operations as the actual determination of the flight time and route was performed by the operations manager of the applicant. According to Mr Mostafa, if the details of the flight did not suit the prospective passenger, they had the option of refusing to travel. This interpretation of "fixed terminal" does not have regard to any building as such, but rather a place or destination to which a passenger is travelling. I regard this interpretation as logical. Bollen J in agreed with the Magistrate's finding that the operator in that case travelled between fixed terminals. There it was stated at 82: . .. .184. Quite clearly the evidence given from Mr Olbort, Ms Jessop and Mr Mostafa establishes that passengers were travelling to set destinations, or putting it in the terms of regulation 206(1)(c), "fixed terminals". It matters little that the aircraft would make intermediate stops on the way to that requested destination. Accordingly, I find that the applicant operated between fixed terminals. . .. .(e) over specific routes. .. .185. Mr Glynn submitted that the applicant did not operate between specific routes as it was the passengers who requested their destination and depending on these requests, the routes were changed accordingly. Mr Harvey submitted that the applicant had established set routes between specific islands with a set price per seat. By 4.00pm on the previous day of travel, the route, times and destinations were set by the operations manager of the applicant. The set routes were said by Mr Harvey to be either east bound to various islands or west bound to such islands or between the islands and the mainland. . .. .186. I accept Mr Harvey's submissions made that the applicant operated over specific routes. The route to be flown was, according to Mr Mostafa, set by 4.00pm the previous day to travel. The route, although dependant on the requests from travellers, was made specific at that time that the operations manager determined the details of flight. Mr Mostafa agreed when Mr Harvey suggested to him that a proportion of the applicant's operations followed a pattern, and that the applicant has designated names for particular routes. Furthermore, it was Mr Mostafa's evidence that some of the flights conducted by the applicant were intended to connect with RPT operators and ferries in the area. Also, according to Mr Bowers as outlined in paragraph 85 above, if a passenger was travelling on "our usual route", then that passenger was charged a fixed price. All of this suggests that the applicant operated specific routes, and I find that this element is satisfied. . .. .187. I find all of the elements identified in CAR 206(1) to be satisfied and therefore conclude that, at least on some occasions, the applicant had been conducting RPT flights. It is clear that the AOC under review did not, and never did allow for RPT operation by the applicant. It follows that the applicant has contravened its AOC. . .. .[end of extract]. .. .Torres: remove your head from the sand now.. .. .Nasa: I’m not sure I kept up with all the corporate peas and thimbles. First it was one of “your aircraft”, then it was “privately owned by one of my companies”. The question as to who in law owns the aircraft has important implications for the classification of the operation. Clearly “you” – as in the natural person Nasa – do not own the aircraft. And then you said “the pilot is paid by the company and employed I believe on a subcontract basis.... Which company? And why don’t you know for sure whether s/he’s employed on a subcontract? Be very careful: next thing you know, you’ll be carrying cargo for a mate who throws in a few bucks cause he desperately needs a part delivered, and carrying a couple of passengers who aren’t employees of the company that owns the aircraft, and ..... .. .Don’t ask CASA for advice. Ask CASA this question: Please tell me whether, so far as CASA is concerned, this operation must be authorised by an AOC. Then describe exactly what you are doing. And I mean exactly. If CASA is unwilling or unable to tell you its position, CASA is abrogating is responsibilities or is incompetent. It cannot sensibly enforce the law or educate the industry about regulatory requirements, unless it forms a view about what rules apply to a given set of circumstances.