Ombudsman 3 of 5
9th April 2019 at 10.56PM.
Only hours later, after having there is yet another complete reversal and I am back at the start of the process again when CASA write back to me and ask, “can you hold off distributing for a day or two”.
The only two individuals within CASA that have more seniority than Mr White, Mr Martin and Mr Crawford are Mr Shane Carmody, the CEO of CASA and Mr Jonathan Aleck, the CASA Executive Manager of Legal, International and Regulatory Affairs. It is more likely that Mr Aleck was the decision maker of the reversal, as he is the Executive Manager responsible for these matters, although that is only my reasonable assumption, I have no evidence of that.
Something happened on the evening of Tuesday 9th April to lead to a complete reversal from CASA.
12th April 2019, (Friday)
CASA advise that they will contact me verbally over the weekend.
16th April 2019 (Tuesday)
CASA advise that they would like another teleconference.
17th April 2019 (Wednesday)
CASA advise that they have some “disappointing news”. The contracts were now not acceptable, CASA put a proposal to me that they would now pursue a different approach, although a new approval for interim operations would now be issued. It was the “interim approvals” that bought so much instability and uncertainty to the business. The matter was still not resolved, and another interim approval to operate is issued. Any remaining confidence in the APTA model and my flying school, MFT by customers and potential customers is now lost as they have been in “limbo” for 6 months already. Their reasonable expectation, as was mine, was that this matter should have been resolved long ago.
24th April 2019
I write to CASA raising my concerns. Attached as Appendix D
30th April 2019
CASA write to me advising that they have “now received the external legal advice and that it has confirmed, inter alia, that Part 141 certificate holder is not “precluded from entering contractual arrangements with other parties to deliver flight training activities.
Interestingly this legal advice, that CASA received does not mention Part 142 Operations which are contracted checking and training and make up over 90% of APTAs revenue. I believe that CASA received legal advice on part 142 operations but chose to avoid mentioning Part 142 activities because these are clearly permitted and exactly what Part 142 is all about i.e. contracted checking and training. I have asked CASA to bring clarity to Part 142 operations on a number of occasions, but they choose not to answer this question. This new legal advice received 6 months later, differs very much to the assertion by CASA in October 2018 where Mr Alecks position was “The Ruling does not permit an AOC Holder to authorise a third-party body corporate to conduct operations under its AOC. This was Mr Alecks opinion and was later found incorrect by the Ombudsman in Stage One of his investigation, when the Ombudsman found; “As of October 2016, no Australian legislation prohibited “franchising of an AOC”.
This point is significant for the investigation by the Ombudsman office, because the Ombudsman is of the view that CASA took legal advice. I was advised by CASA that in fact at the time of CASA initiating their reversal of approval in October 2018, they had NOT received external legal advice. CASA advised me that they only sought external legal advice much later on, and in fact only received that external legal advice in April, which is 6 months after the restrictions were placed on the business. If that is the case, then the truth is that when CASA initiated their action, I was dealing only with the opinion of Mr Aleck.
In phase two of the Ombudsman investigation (not yet finalised) the Ombudsman was of the view that CASA had received external legal advice. I do not disagree that CASA did perhaps obtain legal advice, but I would question the timelines and what information CASA provided to the legal firm i.e., was it accurate? Based on the fact that the legal advice was only confirmed as received some time just prior to 30th April, (“now received the external legal advice’) leads me to believe that in fact there was no prior external legal advice and confirms my view that I may have been dealing with a CASA employees’ opinion, and not any basis in law or safety. Mr White had also confirmed to me that there had been no prior external legal advice taken by CASA).
The matter should immediately have been resolved at this stage.
Despite this, CASA offer yet another short-term interim approval for APTA to operate, while CASA look at alternative options.
30th April 2019,
I advise CASA of the impact on my business and my health. Refer Appendix D. With the restrictions on the businesses ability to trade remaining in place, and the matter far from resolved, I will be unable to meet the upcoming payroll for my employees, and I have only two options.
Shut the business down or try and sell the business at a nominal value.
If I shut the operation, hundreds of student’s part way through their training would have been impacted, and many staff would have lost their jobs. Similarly, Suppliers would be impacted. Several businesses dependent on APTA had already been forced into closure because of the 6-month delay, and the several remaining businesses would also be forced into closure.
June 6th, 2019
CASA CEO Mr Carmody sends me correspondence “…To be absolutely clear, if CASA does not have the evidence we require i.e. contracts, in hand by 1st July 2019, we will have no choice but to consider what further action we may need to take in relation to the flight training operations in which APTA and its affiliates are engaging.”
June 30th, 2019
The decision to sell the business had now been made and the business was sold. The business previously valued at approximately $4,000,000, is sold to an APTA customer (to ensure their own continuity of operations) for 5% of its value at approximately $200,000. Not one cent ever enters my own account, and all payments are made directly to creditors of APTA who have been impacted by the last 6 months of trading restrictions on the business.
The reason for the 5% was the business after 8 months was operating on an interim approval. It had no surety of operations after June 30th as the CASA approval was to expire. The matter was no closer to being resolved. By now, all confidence in both APTA and MFT had been lost, the situation was not recoverable. By the Member purchasing the business at a nominal value, they are able to ensure their own survival.
CASA continues pursuing the closure of APTA and forces all remaining customers to leave APTA. APTA continues operating under different ownership but now as a single school operating alone. I hope that the above timeline you can understand that I may not believe that CASA made a number of good faith attempts, and did not provide me with sufficient guidance.