The report regarding the allegation that I had assaulted CASA employees
REPORT TO:
Ms Philippa Crome, Executive Manager Corporate Services Division, Civil Aviation Safety Authority (CASA)
CONCERNING:
Complaint by Mr Glenn Buckley
PREPARED BY:
Dom Sheil -Senior Reviewer, CPM Reviews Pty Ltd
Quality Assurance by
Trevor Van Dam-Executive Director and Principal Reviewer CPM Reviews Pty Ltd
Submitted 6 November 2023
1. TABLE OF CONTENTS
Introduction ............................................................ ............................................................ ... 3
Documents Considered in this Investigation ............................................................ ...............3
2. Recommendations............................................. ............................................................ ...... 4
The Investigation Process..................................................... .....................................................4
The Standard of Proof....................................................... ........................................................4
Procedural Fairness and Natural Justice..................................................... ...............................5
3. The Complaint and Allegations................................................. ............................................. 5
The Meeting of 6 February 2020 ............................................................ ...................................5
Allegation of Physical Contact..................................................... ................................................6
The Two Records of the Meeting ............................................................ ....................................7
Are the Two Records of the Meeting Contradictory? ............................................................ ......9
The Matters Advanced by the Complainant in Support of His Complaint ....................................10
4. Conclusion.................................................. ............................................................ ....................11
List of Attachments to this Report ............................................................ .....................................11
INTRODUCTION
1. CPM Reviews was engaged by the Civil Aviation Safety Authority (CASA) on 1 September 2023 to
investigate a complaint by Mr Glen Buckley (the Complainant).
2. The Scope of the investigation is as follows:
“CASA requires the undertaking of an external enquiry relating to allegations of a complaint from a member of the public regarding two written accounts of an interaction with the individual and two CASA officers in the foyer of the Authority's Melbourne office and to establish whether on the balance of probabilities the account provided was false and misleading as the member of the public has alleged.”
3. In simple terms, the issue under investigation is whether a CASA officer falsely claimed the Complainant made physical contact with him in an impromptu meeting on 6 February 2020.
4. The two written accounts referred to above are those of Messrs Owen Richards and David Edwards, who are both currently employed by CASA. The accounts in question are their individual file records of the meeting with the Complainant on 6 February 2020. These records are in the form of separate individual emails.
5. Specifically, the allegation is that the record by Mr Edwards is the one that is “false and misleading”, to the extent that it states that the Complainant made physical contact with him. The Complainant states that his record is ‘contradicted’ by Mr Richards’ record. He states that Mr Richards ‘account represents an accurate record of their meeting in terms of whether he made physical contact with Mr Edwards. His position is that he made no physical contact and that this is confirmed by Mr Richards. The consequence of this, in his view, is that Mr Edwards’ account is in the Complainant’s words, “false and misleading.” Relevantly, he claims that the misrepresentation by Mr Edwards was actuated by malice “to cause [him] reputational harm”.
6. The Complainant made a request under the Freedom of Information Act to CASA for documents relating to the meeting on 6 February 2020. As noted above, he considers that the written account by Mr Richards supports his assertion that Mr Edward's account is false and misleading. The purpose of this investigation is to inquire into and advise whether there are any inconsistencies between those two written accounts.
Documents Considered in this Investigation.
7. For the purposes of this investigation the following documents were considered:
• copies of a number of written complaints by the Complainant relevant to this investigation, which have been consolidated into a single document and referred to in this report as “the Complaint” (Attachment A);
• Mr Richards’ record of the meeting with the Complainant on 6 February 2020 (Attachment B);
• Email Questions and Answers with Mr Richards, 9 October 2023 (Attachment C);
• Mr Edwards’ record of the meeting with the Complainant on 6 February 2020 (Attachment D);
and
• Email Questions and Answers with Mr Edwards, 6 October 2023 (Attachment E).
2. RECOMMENDATIONS
8. I recommend that based on the material considered in this investigation, you could conclude that the evidence supports a finding that, on the balance of probabilities:
• the written accounts of Messrs Edwards and Richards are consistent with each other and are not contradictory; and
• Mr Edwards’ meeting record was not false or misleading.
The Investigation Process
9. As investigator, I am required to consider what evidence and other information is relevant to the making of findings of fact and the formulation of recommendations. Evidence relevant to this investigation is material, which if it were accepted, could rationally affect the assessment of the probability of the existence of a fact in issue.
10. The investigation proceeded on the basis of the written complaint(s) only. The investigator consulted CASA as to whether fresh contact with the Complainant should be made. CASA queried whether contact was necessary, given the Complainant’s view of the issues under consideration (the inconsistency of the two records) were clearly expressed by him. In light of this, the investigation did not engage with the Complainant.
11. The questioning of the two CASA employees was by email. Formal (oral) interviews were not conducted. In the circumstances, given the nature and scope of the allegations, and the evidence under review, this was considered to be the most efficient way to proceed.
The Standard of Proof
12. The standard of proof applicable to findings in these matters, including the findings of fact that might support a determination, is the civil standard. That is, findings are based on the conclusion that itis more likely than not that the person suspected of a behaviour or action has done what they were alleged to have done. This is referred to as ‘the balance of probabilities.
13. Before reaching a finding, the decision-maker needs to have regard to the seriousness of what is alleged and the consequences which might flow to the person suspected of misconduct if the allegations are proven. The level of satisfaction required on the civil standard of proof increases in accordance with the seriousness of the matter under consideration. In Briginshaw v Briginshaw (1938) 60 CLR 336 the High Court of Australia indicated the need to act with proper care before finding that a serious allegation is
13. Before reaching a finding, the decision-maker needs to have regard to the seriousness of what is alleged and the consequences which might flow to the person suspected of misconduct if the allegations are proven. The level of satisfaction required on the civil standard of proof increases in accordance with the seriousness of the matter under consideration. In Briginshaw v Briginshaw (1938) 60 CLR 336 the High Court of Australia indicated the need to act with proper care before finding that a serious allegation is established.
14. It should be noted, however, that the ‘Briginshaw principle’, as it has become known, does not alter the civil standard of proof, which remains the balance of probabilities. It is the degree of satisfaction that is required in determining whether the standard has been met from cased to case in terms of the seriousness of the allegations. In other words, it is precedent for the idea that the strength of evidence necessary to establish facts on the balance of probabilities may depend on the nature of what is sought to be established.
Procedural Fairness and Natural Justice
15. This investigation was conducted with as little formality as possible and in accordance with the requirements of procedural fairness and natural justice.
16. I declare that as investigator I have had no prior dealings with the Complainant, or the two CASA employees named in the Complaint.
3. THE COMPLAINT AND ALLEGATIONS
The Meeting of 6 February 2020
17. The documents provided for the purpose of this investigation indicate that the Complainant has a long-standing grievance with CASA. The precise content and nature of that grievance is outside the scope of this investigation. Nothing in this report should be read as expressing a view either way on the merits of those grievances.
18. It is apparent that in the furtherance of those grievances, the Complainant attended the CASA offices at 720 Bourke St Melbourne, at approximately 11:30 am on 6 February 2020. There are a number of different entrances to the Bourke St building. There is an entrance at street level in Bourke St itself. There are also entrances from the concourse area at the rear of the building at the southern end of the Bourke St footbridge.
19. The entry point for the levels of the building that CASA tenants is on level 2. Access to those floors is by elevator which is in turn restricted by security gates that require a “swipe” card for entry.
20. There is a reception area on level 2 which has a front desk located adjacent to the security gates. The records available indicate that the Complainant went to the reception desk and asked to speak with a particular CASA officer. It appears that he had not pre-arranged a meeting with that, or any other CASA employee. In response, the receptionist telephoned another CASA employee, discussions ensued between a number of other CASA employees, and it was resolved that Messrs Edwards and Richards would meet with the Complainant in the reception area with a view to assisting him with his enquiries.
21. According to the CASA meeting records, when Messrs Edwards and Richards met the Complainant, he began to ventilate his grievances about CASA to them. These grievances related to his aviation business. His allegations concerned the alleged actions of CASA in the performance of its regulatory role and how the impact of those actions had allegedly, negatively, impacted him and his family. There is nothing in any of the records considered in the course of this investigation that suggest that the Complainant had individual grievances with either Mr Edwards or Mr Richards.
22. The reports of the two officers suggest that the Complainant was in a deeply distressed emotional state. According to the records, he became angry and aggressive. The discussion with him is reported to have deteriorated to the point where the Complainant physically struck a nearby hand railing with his fist.
23. What relevantly occurred next, is in dispute. It is recorded by both CASA officers that the Complainant made physical contact with one of them (Mr Edwards). The fact and nature of this contact is the focus of this investigation and the discussion that follows.
Allegation of Physical Contact