Well imagine their effort with "Tiger"
" Lets use our unaccountable power and shut down an airline to take some heat of the Minister" They did...because the could!! What amazed me was that "Singapore Inc" didnt turn up with a team of lawyers on an ass reaming exercise, they really do not like getting screwed..especially when money is involved... Then on quiet reflection, why would they bother, easier to get it back by reaming jetstar or Qantas..what goes around comes around and Asians have very long memories. What are our regulators in the Scheme of things other than a joke...bunch of dipsticks pissing about..occasionally costing us money but we can get it back in other ways.
Last edited by thorn bird; 15th Aug 2012 at 08:40.
OM - Polar Air case was a safety issue, wasn't it?
Ain't they all? But; and I've only plucked this 'off the wind', I hear it all began as a routine dust up between a CP who probably knows what he's about and yet another FOI who probably thought he knew better; and, Mummy smacked.
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TB - Well imagine their effort with "Tiger".
The tigers tale is almost unbelievable, it should be published as a novel; pure fiction, it would rival some of the most intriguing, imaginative best sellers ever offered. Hell, they'd make it into a movie if only it had a happy ending.
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I have sometimes been haunted with the idea that it was an imperative duty, knowing what I know, and having seen what I have seen, to do all that lies in my power to show the dangers and the evils of this frightful institution. Fanny Kemble
It's fair to say that both these episodes have great potential to haunt the future, much as Hamlet's beloved ghost. There have been too many gross errors made in the past, not all of these can be hidden by smoke. Elephants in the room, mills of the Gods and all like that.
It's fair to say that both these episodes have great potential to haunt the future …
Indeed.
Mr Butson/Polar did CASA an enormous favour by pursuing Federal Court claims and appeals. We now have a neat compendium of the duties that CASA and its officers don’t have.
Polar and Mr Butson claimed that CASA owed them a common law duty to take reasonable care in the exercise of CASA’s statutory powers. Polar and Mr Butson also claimed that CASA owed them a common law duty not to act beyond power, intending to cause harm to either Polar or Mr Butson, or knowing that their acts were beyond power and that harm to Polar or Mr Butson was foreseeable, or recklessly indifferent (a) to whether their acts were beyond power and (b) to the likelihood of harm to Polar and Mr Butson.
The Federal Court held that the duty as pleaded did not exist.
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In all the circumstances, it cannot be said to be open to the applicants upon the [statement of claim] to prove the facts at trial which would constitute a reasonable cause of action in negligence against the respondents. In so far as the [statement of claim] endeavours to plead negligence against the respondents, this pleading should be struck out.
Polar and Mr Butson also claimed that CASA owed them a statutory duty to exercise CASA’s statutory powers lawfully, reasonably and in “good faith” for the purposes for which those powers were given.
The Federal Court held that:
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[T]here is no statutory or common law duty of the kind alleged in the statement of claim, to the extent that these paragraphs plead breach of statutory duty. Furthermore, there is no basis for a claim that [Terrence Farquharson, Garry Presneill, Robert Collins, Jim Marcolin, Peter John and Allan Cook] were under any personal duty under the Act that would support a cause of action of this kind against them. The pleading of breach of statutory duty should be struck out in accordance with these reasons.… Further, it is plain enough that there is no tenable basis on which Polar and Mr Butson could bring an action in tort against CASA and the other respondents for breach of a general duty to act in good faith.
Polar and Mr Butson also claimed that CASA owed a common law duty generally to the same effect as one of the above claims, but also involving a common law duty not to exercise CASA’s statutory powers “in such a way as unlawfully and intentionally to interfere with the trade or business” of Polar or Mr Butson.
The Federal Court held that:
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[T]he cause of action described as wrongful interference with trade or business interests should be struck out.
Polar and Mr Butson also claimed that Terrence Farquharson, Garry Presneill, Robert Collins, Jim Marcolin, Peter John and Allan Cook were guilty of “misfeasance in public office” because:
(1) their knowledge of the limits of their powers was to be inferred from their position and experience;
(2) their knowledge of the likely consequences of their conduct was similarly to be inferred from their position and experience;
(3) their intention to bring about those consequences was in turn to be inferred from that knowledge, the actions themselves and the “pattern of conduct” described in the claim;
(4) their reckless indifference was to be inferred “from the conduct of CASA and the officers of CASA taken as a whole” as set out in the claim and from the “pattern of conduct” set out in the claim.
The Federal Court held that:
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There is nothing that supports the hypothesis that the respondents had the intention or acted with reckless indifference as claimed, and this must be established if the cause of action is to be made out. … The pleadings reveal no more than that CASA and its officers differed with Polar and Mr Butson as to the correct exercise of CASA’s statutory powers and that, by accepting an enforceable voluntary undertaking under the CAA, the matter might be resolved in conformity with CASA’s understanding of its obligations.
Further, the pleadings, as particularised, fall well short of supporting any claim against the individual respondents of misfeasance in public office… The pleading as against the individual respondents is thus fundamentally deficient. Even if Polar and Mr Butson were to establish legal error in the relevant exercises of statutory power, this would do no more than support a finding of deficient administration. …
Accordingly, the applicants’ pleading of misfeasance in public office is embarrassing within the meaning of the Federal Court Rules and should also be struck out.
[All bolding added]
I assume it will be suggested that this outcome occurred because CASA failed to discharge its model litigant obligation and the Federal Court was too stupid, lazy, indifferent or corrupt to notice.
Does any of this have anything to do with Aviation specifically SAFETY. It all appears to have been acted out in courtrooms. It gives new meaning to the subject "airlaw" the number one requisite for safe flight. Forget "principles of flight" or " navigation"
In the Court proceedings was there ever a mention or a hint that this had anything to do with,... forgotten the topic! Ah yes Aviation!
More of a lawyers picnic? THank God for the "adversarial" legal system, we wouldn't know what to do with the truth anyhow. Strange that CASA as a Gov authority chooses to use the French Law system, allegedly "guilty until proven innocent" when it suits them. Is that what's called ambidextrous?
"serial liars" by Evan Whitton available free on the Internet.
A question for Cream Puff..and I'm not being facecious, I would truely value your advice, because I am becoming increasingly uneasy about where I would stand legally as someone employed by a company,to implement procedures for the safe operation of that companies aircraft. Where would I stand with regard to duty of care under the Law, if I accept the direction of a CASA representative and implement a procedure that all my experience and training knows to be unsafe and god forbid an accident occurs. As with CASA do I have no duty of care?..after all I was directed by the experts..is that a defence for killing someone doing something I know to be unsafe?
Last edited by thorn bird; 17th Aug 2012 at 07:11.
I guess what you are saying CP is that I'm damned if I do and damned if I dont...This is the situation I find myself in...how do I protect myself and my company?? If I dissent to the CASA direction I become a "Not a fit and proper person" which has been threatened...If I aquiece to their direction to save my position and ensure my company can continue to do business I could end up spending a considerable time in prison, or be bankrupted, CASA get off the hook because they have no duty of care?...am I right with this hypothesis?
Last edited by thorn bird; 17th Aug 2012 at 08:23.
CASA get off the hook because they have no duty of care
But the individual "does" have a duty of care, not the conglomeration. That individual is very exposed to action when he is no longer under the umberella of protection that the conglomeration provides. There are heaps and heaps of them. (no pun intended)
When you people understand the principle of attacking the lowest common denominator, you may be on a winner.
This can possibly be done in a Magistrate's Court at a very minimal cost with a criminal conviction, (for perjury for instance), that leaves open the possibility of civil action.
. Where would I stand with regard to duty of care under the Law, if I accept the direction of a CASA representative and implement a procedure that all my experience and training knows to be unsafe and god forbid an accident occurs.
If this is a change of procedures it must be according to the Ops Manual, simply ask CASA for a written direction to ammend same. CASA always demand everything in writing and will no doubt approve by return. (there has to be a first time doesn't there?)
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. Creampuff You both end up as defendants. The proportion of your respective liabilities would depend on the extent to which you respectively caused the damage.
One would be the Commonwealth Auth with unlimited funds, (0% liability) the other the G.A. Operator who failed to get the approval to ammendment in writing. (100%) Wonder why CASA never approve O.M.s ? Must be a safety consideration. I do believe that CP is sincere in thinking that this is how the real world works, maybe a bit of lateral thinking needed, called reality!
SVW - If this is a change of procedures it must be according to the Ops Manual, simply ask CASA for a written direction to amend same.
Stan – valiant effort but no Ceegar. Gather round children and hear my cautionary tale.
Once upon a time in land far, far away there lived a rich Farmer who had a large, successful place which supported many happy peasant families; and, as it was an old place people had settled and opened businesses in the near by village. In the rough manner of the lower classes, the people where happy enough; and, their rustic, messy easy going ways caused no real offence to the upper classes.
Now, this part of the country was ruled by a newly appointed Royal Chamberlain (RC) who was having great troubles with the Big King (who was a right royal bad lot). The troubles were all about power and money, the usual suspects in this type of tale. Well, the RC knew that only an improved performance could secure his new post; so, to make sure that he was protected, he appointed some of his favourite, trusted men as Deputy Head Chamberlains (DH), they willingly did his bidding and generally; through brute force, ignorance and the newly discovered pedantry made life miserable for the happy peasants.
Then one night, a favourite child of the village did not come home. They searched and looked and worried and searched some more, but to no avail. Young Johnny was mysteriously gone.
The RC knew that the BK was cranky about this and the blame would surely roll down hill; he also knew that the BK was not a fan of the outspoken farmer. Quick as a wink the RC boys seized the chance and made a pact; no matter what it took they were going shine. So they took action and raided the farmer.
Now then, apart from being genial, the farmer was also a shrewd cookie who had, in the past thwarted BK 's ambitions and caused general offence by being independent and not allowing the bully to dictate where and how every blade of grass was grown. He had made safety plans to prevent the inadvertent loss of children; and, those plans had been sent off to BK for royal acceptance. Fees were paid, and the plan had been operating for a long time. The BK had even allowed some of the onerous restrictions (care and feeding of children) to be removed. The Farmer was quite happy that his 'new' plan (being paid for and accepted) and, the newly issued approval would provide protection against the worst excesses of the DH.
But, tragically the plan failed; the RC's DHs infuriated by the mild passive resistance and arguments that the villagers were complying with the royal BK accepted plan, lost it. There was no depravity or excess they did not sink to in the madness which followed.
In the end the happy peasants flew to far off lands, but the leaders were all rounded up and subjected to the infamous trial by innuendo; alas, they lost this final battle too.
Aye well; the rest is now history, there is a wasteland where once stood a farm which supported a village. The RC made a little speech at the executions, which will live forever in the minds of fair, honest folk. "It is unfortunate that you believed you're plans to be accepted, your cause just and that your village was safe – off with their heads".
And if you think that's a fairy tale – do some research.
Stan I agree with your idea re written direction, it was asked for, both in the case of unsafe practice, and in directions to alter certificated AFM procedures. My legal advice was that this placed the certification of the aircraft in jeopardy which in turn could negate the aircrafts insurance. In all cases written direction was denied, however the inference was if you didnt do as you were told you wouldnt be permitted to operate the aircraft, so again damned if you do and damned if you dont. I imagine the airlines have a robust legal team to challenge these things but what chance a GA operator affording that? and of course if you dissent even on safety grounds you are "Not a fit and proper person", so your in a lose lose situation. I seriously believe now that it is CASA's policy to shut down GA. Why I have no idea, but at least they could be open and honest about it.
TB don't envy your situation...treading the thin line between pergatory and redemption!
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TB: I seriously believe now that it is CASA's policy to shut down GA.
Phelan's article also hinted at Fort Fumble's philosophy for GA:
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Three separate industry identities who have discussed this with us report that one official who is directly involved has openly stated his belief that aviation in Australia should be limited to airline and defence operations.
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TB: Why I have no idea, but at least they could be open and honest about it.
Why indeed! Maybe GA is seen only as..."that troublesome third cousin"...where all the miscreants and cowboys of the industry hang out!
Where would I stand with regard to duty of care under the Law, if I accept the direction of a CASA representative and implement a procedure that all my experience and training knows to be unsafe and god forbid an accident occurs.
Yes. It is CASA’s policy to shut GA down. If not for the meticulous investigative skills of the various experts in this area, the plan would never have been discovered or exposed.
What a wonderful catharsis it is for all of us now, to finally acknowledge the reality, collectively and publicly: CASA’s policy is to shut GA down.
So: Let’s all sung “Kum bay yah”.
What next?
I know: let’s vilify CASA on PPRuNe! The Easter Bunny will come to the rescue of GA and we’ll all be happy again. Yay!
The problem for you Creampuff is that you can't make the problem go away.
There are consistent accounts over many years in many forums, not just he internet, alleging that CASAs conduct could be improved in many ways.
Furthermore, a small but significant number of people have spent very considerable amounts of their own money to object to the behaviour of the regulator in the courts.
The consistent thread of these allegations is that the behaviour of the regulator is capricious unjust ineffective and vindictive.
I don't believe any other Government entity, even including the ATO, has been now or ever subject to the stream of allegations made against CASA.
We are not talking about simple incompetence here. This is our concern.
Sunny - Furthermore, a small but significant number of people have spent very considerable amounts of their own money to object to the behaviour of the regulator in the courts.
This is, I believe, the radical of a large number of complaints. The problem seems not lie so much within the 'actual' judicial system; but the ways, means and motivation used to place a person or organisation into that system.
Research into the legal head of power for Request Corrective Action (RCA) is very enlightening and worth doing. The actual power of a RCA and your ability to defend against it is also worth looking at; very carefully. Next step, look at the power to acquit or escalate; then, just for fun look at the defence and options available before allowing the escalation to occur. If you don't, you are well along the road to perdition.
A lot of the 'problems' stem from this point. CASA can and frequently do with alarming rapidity add up three or four 'half arsed' (subjective) RCA; and, with indecent haste parley the 'dross' into the 'gold' of Non Compliance. From this point on you are dealing with lawyers, the system and starting a long way behind the 8 ball.
Translating a 'subjective' RCA into a fit with an existing regulation is an art form with this outfit. Once the matter gets to the AAT unless it's a clear cut issue, the needle is very effectively hidden under the manufactured paperwork haystack.
Selah
Last edited by Kharon; 18th Aug 2012 at 21:40.
Reason: Transmogrify fairy tales to law.
The allegation that the regulator is “capricious unjust ineffective and vindictive” is not a problem for me, Sunfish. It’s a problem for the people who wish to prove the allegation.
I have the Federal Court, the AAT and the OLSC on my side. I know who’s on your side.
I know which side I’d rather be betting on.
(It would be instructive for you to read what the AAT said about the FOI in the Polar matter – the AAT said, in not so many words, that he was an officious pr*ck. But the AAT wasn’t very impressed by Mr Butson character either. Nor did it make much difference to the merits of the decisions. You need to try to understand both sides of a story.)
Creampuff, I am an inexperienced PPL with no commercial ambitions. I am aware that there are "colorful" aviation characters that must be a pain in the backside for CASA to have to deal with. I have limited exposure to CASA and all my interactions with them have been good.
Nevertheless, I have had some administrative experience gained in a business career endiing up as CEO of a firm, and what I see of CASAs characteristics, if only a fraction of what I read is true is, to put it mildly, alarming.
Nevertheless, I have had some administrative experience gained in a business career endiing up as CEO of a firm, and what I see of CASAs characteristics, if only a fraction of what I read is true is, to put it mildly, alarming.
Fancy that are relatively unbiased...almost layman (obviously with a brain) giving an outsider assessment on the foibles of the regulator!
Careful Sunny you'll get an "unsubstantiated twaddle" remark from Creamy if your not careful!!
