What you went through was terrible, Glen, and I earnestly hope you get adequate compensation.
In relation to your post #2312, I interpret your answer to my questions at post #2313 as in effect being that in June 2019 an entity called Vortex took over control of company ACN 119 046 285, the latter by that time having the name Australian Pilot Training Alliance Pty Ltd. If that’s correct, it makes no difference to the circumstances that prevailed before, and led to, CASA’s October 2018 letter and March 2019 email.
How do things without brains ‘know’ stuff?
I hope you find this helpful, Glen, in trying to articulate why CASA ‘knew’ about the details of the APTA ‘alliance’ structure as soon as CASA considered the first application from entity ACN 119 046 285 (with the original name “Melbourne Flight Training Pty Ltd” which changed to “Australian Pilot Training Alliance Pty Ltd”) for a variation to its AOC to authorise operations at an additional ‘alliance’ ‘base’.
CASA is simply an artificial person created by a sentence in a piece of legislation. It has no brain or arms or legs. In those respects CASA is exactly the same as a corporations law company like ACN 119 046 285. How, then, can it be possible for CASA to ‘know’ stuff, like the details of the APTA ‘alliance’ structure?
The law deals with that, too. CASA gets to ‘know’ stuff as a consequence of, for example, what its human officers find out in their capacity as officers of CASA. And it is not necessary for every officer of CASA to know something before CASA, in law, knows that thing. That would be absurd. In law, the artificial person CASA can ‘know’ something after merely one officer of CASA becomes aware of that thing in their capacity as a CASA officer.
So when e.g. a CASA FOI receives an application from e.g. an AOC holder for e.g. a variation to an AOC, in law CASA ‘knows’ the application has been made and CASA has ‘received’ the application. The officers in ‘Head Office’ can claim, reasonably and truly, that they did not know that the application had been submitted, but that makes no difference to CASA’s obligations and the applicant’s rights in the circumstances.
Further, and I suspect more importantly in the APTA ‘alliance’ structure case, CASA can in law ‘know’ something even if not a single one of its officers is aware of that thing. One of those ways of ‘knowing’ is called “constructive knowledge”, which is stuff CASA ought to know in the circumstances.
Let’s now consider a company – let’s call it Generic Pty Ltd – which holds a flying training AOC issued by CASA and conducts flying training under the authority of that AOC at Kickatinalong aerodrome. Generic then applies to CASA for a variation of its AOC so as to authorise Generic to also conduct flying training at Kumbukta aerodrome.
Let’s also now pause to ask: What is the very purpose of the regulatory requirement for this application and variation process? The very purpose?
Its purpose is for CASA to find out whether Generic satisfies the criteria in section 28 of the Civil Aviation Act and other regulatory provisions in relation to the conduct of flying training at both Kickatinalong and Kumbukta. And that task, of its very essence, requires CASA to, among other things, find out whether Generic has effective control over the people and the premises and the aircraft whom and which will be used to deliver flying training at the proposed Kumbukta location.
The only way in which CASA can find out whether Generic has effective control over the people and the premises and the aircraft is to find out who employs the people, who controls the premises and who is the registered operator of the aircraft. Even if no CASA officer finds those things out – for whatever reason, including that every CASA officer has no clue as to the implications of those things – CASA ought to know them because they are at the essence of CASA’s regulatory task in the circumstances.
In short, on every occasion that APTA applied for a variation to its AOC so as to cover an additional ‘alliance’ ‘base’, CASA ought to have found out who employed the people, who controlled the premises and who was the registered operator of the aircraft whom and which would be engaged in flying training activities at the base. On every occasion. And CASA ought to have understood the implications of those people not being APTA employees, of APTA not being in control of the premises and of APTA not being the registered operator of the aircraft.
(And, as I’ve said before, the tragedy is that if CASA had done its job properly for the first additional ‘alliance’ ‘base’, the implications could have been dealt with then and APTA would have known what was necessary when proposing the addition of further ‘alliance’ ‘bases’. There is nothing in the aviation law that says, for example, that all instructors have to be the employees of the holder of the AOC under which the flying training is being conducted. The aviation law actually expressly accommodates arrangements in which instructors are not the employees of the certificate holder. However, the aviation law does require the AOC holder to have effective legal control over those instructors.)
What I suspect happened is that APTA was initially dealing with CASA officers who didn’t understand the implications of the ‘alliance’ structure. Maybe they just assumed that everyone was going to be employees of APTA, the premises would be under the control of APTA and APTA would be the owner or registered operator of the aircraft at all ‘bases’. Wrong assumption. Or maybe – and this is the one I’d bet folding money on - they assumed that the production of a bunch of shelfware in the form of things like a base-specific operations manual would magically confer on APTA legal power to (a) control people who weren’t APTA’s employees, (b) control premises of which APTA was not owner or lessee and (c) control aircraft of which APTA was not owner or registered operator. Another wrong assumption.
Irrespective of what individual CASA officers understood or assumed and when, CASA was at least on constructive notice of the APTA structure and its implications from a regulatory perspective from additional ‘alliance’ ‘base’ one. It was CASA’s job to find those things out. It was the very purpose of the variation application process. Any pretence by CASA (read individuals in damage control) otherwise would be disturbing, but disturbingly typical.