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Confusing, isn’t it! Polar update, June 5, 2012
A number of senators are now taking a growing interest in the ongoing legal tussle between the civil Aviation Safety Authority and Polar Aviation, and Polar’s proprietor Clark Butson. The following exchange from Hansard on May 23 may have failed to leave the senators as well informed as might have been possible:
Senator EGGLESTON: This has gone on for a very long time. There seems to be some quite serious issues about the way CASA has treated Polar Aviation which raise—quite rightly—some issues of public concern about your methodology, the way you operate in dealing with some of these small airlines.
Mr McCormick: The issue with Mr Butson and Polar is, of course, that many times his actions have been struck out by the Federal Court and he has had to file an amended statement of claim on each occasion.
Senator EGGLESTON: His actions were struck out?
Mr McCormick: That is correct.
Senator EGGLESTON: He says that you have ignored Administrative Appeal Tribunal findings, ignored court findings and sought to prolong this case deliberately to exhaust his financial reserves. He says: ‘CASA has in the past treated this matter with total contempt,’ and, ‘It is about time this nonsense stopped and that CASA was made properly accountable for their outrageous behaviour’. He has a different point of view to you, as I said at the last estimates hearings. I will pursue this matter on Mr Butson’s behalf until we get some satisfactory answers.
Mr McCormick: Certainly. But I do reject most of what Mr Butson has said. In actual fact, CASA applied to have a strike-out application in the Federal Court on January 2011. On 30 September 2011 the court struck out the FASC [further amended statement of claim] in its entirety. In summary, the court found the action as pleaded by Polar and Mr Butson either did not properly identify a known cause of action or is otherwise unsustainable.
Senator EGGLESTON: As I said, there is a huge difference of opinion about the way you have treated Polar and Polar’s view of this matter. We will continue to raise these matters in this forum until there is some satisfactory resolution.
Mr McCormick: Certainly, Senator. Mr Butson has filed a notice of appeal to that decision and it was due to be heard approximately now.
Comment
Mr McCormick is certainly right in saying Mr Butson’s understanding of these matters differs markedly from his own. Had he been briefed in closer detail, Mr McCormick might have been able to expand his clarification to cover the following points:
1. The matter began when CASA took administrative action against Polar and Clark which the Administrative Appeals Tribunal set aside.
2. The Commonwealth AAT (unlike its State counterparts) does not have the power to order costs or other remedies other than power to set aside a decision
3. Clark and Polar commenced a proceeding against CASA for damages in the Federal Court. There was a technical issue which required a re-pleading.
4. Justice Kenny struck out the statement of claim which contained the technical issue, but allowed the current statement of claim (No 255 of 2010) to be filed.
5. Justice Kenny later struck out the second statement of claim without hearing evidence at the trial of the proceeding.
6. On granting leave to appeal, Justice Middleton said that a court should not ordinarily strike out a claim without hearing any evidence.
7. Mr McCormick stated to the Senator that the claim had been struck out “many times” but in fact it was struck out twice, and the second occasion is now sent up for appeal.
8. The Federal Court proceeding is complex and voluminous. The costs of CASA would, in the opinion of informed lawyers not involved in the case, far exceed the figure given by Mr McCormick to the Senate.
9. The reasons published by Justice Kenny (which is before the Full Court on Appeal…decision reserved) appear on the Federal Court records. In essence:
10. The first appeal ground states that the learned judge erred in holding that the claim against CASA in negligence had no reasonable prospect of success.
11. The second appeal ground states, among other things, that the learned judge erred in holding that CASA owed no duty of care to Clark and Polar.
12. The process of discovery of documents has not been completed. The matter is much more complex than Mr McCormick’s statement would suggest.
THE LEGAL ISSUE
The primary question is where to draw the line between the duty of a statutory authority which exercises its powers and the common-law rights of the citizen.
One side of the argument is that where a public authority exercises its statutory powers, a potential conflict could arise between the carrying out of the public duty, and acting defensively for fear of an action in negligence being brought.
The other side of the argument is that an improper exercise of statutory powers may unnecessarily cause economic harm to persons subjected to the exercise of power
The High Court in Kirkland-Veestra put it this way:
“Evaluation of the relationship between the holder of the power and the person or persons to whom it is said that a duty of care is owed will require examination of the degree and nature of control exercised over the risk of harm that has eventuated, the degree of vulnerability of those who depend on the proper exercise of the relevant power, and the consistency or otherwise of the asserted duty of care with the terms, scope and purpose of the relevant statute. Other considerations may be relevant”
Senator Eggleston also queried a previous CASA response to the question of its total expenditure on the case; a figure totalling $65,305 in legal fees since the audit that started this chain of events on 14 May 2 006.
The Senator asked (on notice) how much CASA and the Commonwealth spent with International law firm Blake Dawson, the total cost of legal expenses including all internal and external inputs with respect to legal representation in or out of court, all legal costs engaged to represent CASA in this matter, and what part Commsec has played to date and at what cost. observers believe that those costs are likely to exceed $65,305 by “an appreciable margin.”
I think that this coupled with the Hempel inquest could inflict some mortal wounds to Fort Fumble and Albo's circus...damn where's a good investigative journo when you need one!
ps No offense PP and a carton of Crownies to you and Butson!
pps ...and Sen Eggleston, Sen X and Sen Fawcett