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clapton · 13th June 2008, 13:27

Creampuff

Not a surprising response from you given that you believe that private lawyers have a monopoly on acting with integrity.

As to you comments that in-house lawyers only have one client - you know that that is a gross oversimplification. In house lawyers aren't the personal lawyers of the CEO. They aren't employed by the CEO - don't forget there was a Board in existence at the time which was ultimately responsible for the management of CASA and the hiring and firing of senior staff - not the CEO. Im-house lawyers act with due regard to their legal ethics and duties to the law itself, the Boatrd and organisation itself. They are not the personal playtthings of the CEO. And they are accountable through parliamentary processes for what they do as well.

As to the wonderful ethics of private lawyers, can you name me one in-house lawyer who has been charged or convicted of obstructing the course of justice, destroying evidence, shredding documents, misappropriation of trust funds etc. Trawl through the law reports and you will find wonderful examples of partners of law firms extensively engaing in all these activities. So please don't be so condescending and try to tell me that lawyers in private firms don't act in a completely unprofessional and unethical manner (with huge conflicts of interest) to please their clients (ie their employers) because such firms are in it for the money and often do whatever it takes to keep that money rolling in to pay for their lavish lifestyles.

As to you question:

Quote:

Let's test your objectivity in the circumstances: If Mr Toller committed a technical breach of CAR 282(1) by taking the controls of a Cessna Caravan, even though he was not endorsee for the aircraft type, do you agree that those circumstances would also constitute a technical breach of CAR 228(1)?

For the info of readers, CARs 228(1) and 282(1) said, respectively:
Quote:
228(1) A person must not manipulate the controls of an aircraft in flight if the person is not either:

(a) the pilot assigned for duty in the aircraft; or

(b) a student pilot assigned for instruction in the aircraft.

…

282(1) A person shall not, if the person is not specially permitted by or under these regulations, perform any duty or exercise any function or do any act for which:

(a) a licence;

(b) a certificate; or

(c) a rating or other endorsement on a licence or certificate;

is required under these regulations, without holding:

(d) the appropriate licence or certificate; or

(e) a licence or certificate containing the appropriate rating or other endorsement.
Simple question, clapton: a technical breach of one regulation, or a technical breach of two regulations?

The answer is that there has been a technical breach of one regulation only - CAR 228. There has been no breach of CAR 282.

Creampuff, like Mr Boys, in you eagerness to pillory Mick Toller you fail to read the legislation. While Mr Boys could possibly be forgiven because he was not a real lawyer, I would have expected you to pay more attention to the legislation.

Read CAR 282 carefully (you get paid by the hour as a private lawyer - so take you time, you can charge the client).

CAR 282 only applies to a licence or endorsement that is required under the regulations (note the words, UNDER THE REGULATIONS).

In relation to the Mick Toller incident, the endorsement was not "required under the Regulations". The effect of not having an endoresment is that, except in particular circumstances, a pilot's licence does not authorise the pilot to fly the particular aircraft (which of course has consequences for section 20AB of the Act - but it is not a breach of CAR 282). A fine legal distiction you may say - but that is how the legislation works.

The reason for this is that once upon a time the regulations did make it an offence to fly without a licence, endorsement etc and the regulations did require the person to hold the appropriate licence, endorsement etc. In those days, CAR 282 would have applied and there would have been a breach of CAR 282. However, this was changed in the early 1990s with the enactment of section 20AB of the Act, when those "requirements" were put into the Act.

CAR 282 now only appies to things that are "required under the regulations" - so it still has application - but not in the circumstances raised in your question - or the Toller incident.

So CAR 282 had no application to Mr Toller's actions. That is the legal point that was in dispute between CASA's General Counsel and Mr Boys. Phillips Fox confirmed General Counsel's view on this issue as did Mr Sherman. No doubt you will say that Phillips Fox had an elephant sized conflict of interest because they were part of CASA's external legal panel and so obviously they would agree with their client (who was paying their bills). Same goes for Sherman I guess because CASA also had to pay him as well so obviously he couldn't be trusted to provide honest and objective advice.........

Now where can we find an honset lawyer.............