[T]he Federal Judges did not rule on the content of Butsons allegations, they declined to hear argument on the grounds that, as pleaded, he did not have a case to argue. Hence they did not entertain the case.
Circular nonsense.
The content of the allegations is the claims made and pleaded.
This is straight out of the Federal Court’s judgement, which judgement was appealed to the Full Court and
rejected.
APPLICANT’S FURTHER AMENDED STATEMENT OF CLAIM
By their Application and FASC, the applicants claim damages for breaches of duties allegedly owed to them. In particular, Polar and Mr Butson claim that CASA owed them:
- a common law duty to take reasonable care in the exercise of CASA’s statutory powers (FASC, par [16(a)]);
- a statutory duty to exercise CASA’s statutory powers lawfully, reasonably and in “good faith” for the purposes for which those powers were given (FASC, par [16(b)]);
- a common law duty generally to the same effect as 2 above 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 (FASC, par [16(c)]);
- 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 (FASC, par [17]).
The FASC alleged that these duties arose pursuant to common law, by operation of the provisions of the CAA and the regulations and orders made under the CAA and, in the case of the penultimate duty (par [16(c)]), also by virtue of ss 22-25 of the Commonwealth Authorities and Companies Act 1997 (Cth) (‘CAC Act’). According to the FASC, these duties as pleaded were breached by a series of actions taken under the CAA by the second to seventh respondents acting on behalf of CASA. These actions are stated in various paragraphs of the FASC, including in paragraphs [67], [70], [71], [77], [79], [101], [103], [105], [107], [119], [121], [124], [136], [145], [151], [155], [160], and [169] of the FASC. They are too numerous to set out here. In the FASC, Polar and Mr Butson alleged that the breaches of these duties caused them loss and damage: see paragraph [178].
In the FASC, Polar and Mr Butson alleged that the second to seventh respondents were required to exercise “their powers and functions”: (a) with reasonable care and diligence; (b) in good faith and in the best interests of CASA and for a proper purpose; and (c) so as not improperly “to use their position” to cause detriment to Polar or Mr Butson: see FASC par [10].
As CASA submitted, a central allegation in the FASC is that the various breaches of duty on the part of CASA and the individual respondents arose from a “pattern of conduct” towards Polar and Mr Butson, “adopted” by CASA and the individual respondents during and following an “operational audit” of Polar by CASA in May 2004: see FASC par [25]. The FASC alleges that, before and during the May 2004 audit, Mr Butson and CASA officers discussed CASA’s requirements concerning Polar’s development of a competency-based training (‘CBT’) syllabus and the provision by Polar and Mr Butson of asymmetric flying training for students of Polar’s flying school. According to the FASC, these matters were the subject of “a difference of opinion” between Mr Butson and various officers of CASA such that the alleged “pattern of conduct” was “strongly influenced by [Mr Butson’s] attitude to CBT and asymmetric flying”: see FASC pars [23], [24], [25(c)].
Polar and Mr Butson alleged that the breaches of duty arising from the alleged “pattern of conduct” and constituting “unlawful acts”, included (amongst other things):
- CASA issuing a “unique” request for corrective action (‘RCAs’) to be taken by Polar in respect of “deficiencies” that CASA had raised with Polar and Mr Butson as a result of the May 2004 audit: FASC pars [26]-[29] and [32];
- CASA (“over the hand” of the second respondent) issuing notices – supplementary notices – to Polar (to show cause why CASA should reissue a fresh AOC to Polar) and to Mr Butson (to show cause why his Chief Pilot’s approval and his approval as Chief Flying Instructor should not be cancelled, suspended or revoked) having regard to the deficiencies that CASA had raised in the RCAs: FASC pars [30]-[37] and [48]-[49];
- CASA (by a notice signed by the fifth respondent on the advice and recommendation of the second respondent) cancelling Polar’s AOC: FASC pars [54]-[57];
- CASA (by a notice signed by the fifth respondent on the advice and recommendation of the second respondent) cancelling Mr Butson’s approval as Chief Pilot of Polar: FASC pars [58]-[61];
- CASA (by a notice signed by the fifth respondent on the advice and recommendation of the second respondent) revoked the approval of Mr Butson as Chief Flying Instructor with Polar: FASC pars [62]-[65];
- CASA (by notice signed by the sixth respondent on the advice and recommendation of the second respondent) refusing to renew Polar’s AOC: FASC pars [94]-[97];
- CASA opposing Polar’s application to the AAT for a stay of CASA’s decisions cancelling Polar’s AOC and refusing to re-issue an AOC to Polar: FASC pars [106]-[107];
- CASA (by a notice signed by the sixth respondent on the advice and recommendation of the second respondent) issuing an AOC to Polar containing a number of conditions relating to the conduct of flying training: FASC pars [117]-[118];
- the third respondent (and subsequently the second respondent) writing to the Chief Pilot of Polar and allegedly setting out a false interpretation of a provision of the CAA: FASC pars [127]-[128], [131];
- the fourth respondent (by a letter forwarded to Mr Butson) advising that he had refused to recommend (to the Director of CASA) that Mr Butson be “re-appointed” as an Approved Testing Officer of CASA: FASC pars [143]-[144];
- the first respondent (by a notice signed by the second respondent) proposing to further suspend or cancel Polar’s AOC and issuing a further supplementary show cause notice to Polar: FASC pars [149], [150] and [151]; and
- the first respondent (by a notice signed by the seventh respondent on the advice and recommendation of the second respondent) issuing a notice of proposed action to Polar: FASC pars [158]-[160].
This account of the FASC is necessarily incomplete. I accept that, as Polar and Mr Butson submitted, the identification of events set out above must be understood “in the context of the allegations set out in the relevant paragraphs of the [FASC]”.
[my bolding]
All of that looks very much to me like allegations of CASA actions and motivations, and claims as to the consequences of those actions of motivations, all of which were considered by the court.
I think what you meant to say, Sunfish, is that the court did not rule on whether the
facts asserted by Mr Butson were true. But there’s a fundamentally important reason for that: The claims failed,
even if every fact asserted by Mr Butson were true.
It’s a point that some people can’t or won’t, but should, take the time to understand.
It’s also why there’s been no reporting of the outcome of this matter by Mr Phelan. It’s a rather inconvenient outcome for CASA’s critics.