Brian
You state that you suppose there are two possible explanations as to why Phelan and Torres get no where with their horror stories - the explanation I provide and the conspiracy-type theory that the Minister/CASA are covering their tracks.
My observation is that Ministers, CASA and any other government organisations have great difficulty “covering their tracks” in front of courts and tribunals, and, like you, get a “thorough roasting” if they do not comply with directions and other rules.
Humour me for a few minutes, and consider some of the statements in the Torres/Phelan horror story. First:
24 Feb 99: Uzu's lawyers request the AAT issue three subpoenas to involved CASA staff members to attend the hearing the following day. AAT declines due to inadequate time.
Note that the AAT
refused to issue the subpoenas. Note the
cause of the refusal. Note who was
responsible for that cause.
A second quote:
25 Feb 99: At a cost of about $10,000, Uzu attend AAT Sydney at 0915. At 0930, AAT Vice President's associates advise that CASA will not be attending, due to commitments in Brisbane, but CASA will not object to a telephone hearing. (CASA claims it had earlier advised Uzu and the AAT it would be unable to attend but would not object to a telephone hearing.)
Note that the story states “CASA claims it had advised Uzu and the AAT that it would be unable to attend”, but omits the magic words “but Uzu’s lawyers and the AAT deny having ever been told this”. (Or perhaps CASA’s failure to refute an assertion against it is proof of the assertion, but not
vice versa.)
There’s not much reading a litigator needs to do between these lines to see what went on here. The applicant in the matter thought (and apparently Torres and Phelan continue to think) that the tribunal and the respondent were obliged to drop everything on 24 hours’ notice to fit around the applicant. We the applicant snap our fingers today, you the tribunal will now issue subpoenas for attendance by the respondent’s witnesses tomorrow; we the applicant decide today to go to Sydney, you the respondent will now make arrangements to appear in person tomorrow in Sydney.
If a court or tribunal refused to issue a subpoena today, requiring the attendance of your client at a hearing tomorrow, would you advise your client that she was obliged to attend? If you were informed today that you had to appear tomorrow in Sydney but you could not physically attend because your existing obligations prevented you from physically attending, what would you do?
If CASA had not advised Uzu’s lawyers and the AAT that it would be unable to attend
in person but would be attending by telephone because of the short notice, don’t you think the AAT would have said something about it? Here’s a challenge for you: get a partner from Uzu’s solicitors to swear an affidavit that were not advised of this before the hearing. In any event, it was a matter for the
AAT to decide and give CASA “a thorough roasting for”, if the AAT considered it necessary (which it didn’t).
Torres states he assumes I am suggesting “CASA has some power to decide, in it's [sic] sole discretion, whether it attends Tribunal hearings or not.” His assumption is wrong. What I’m
stating is that
if CASA personnel are not
obliged to attend a Tribunal hearing in person or at all, those personnel, like any other person, can
choose not to attend in person or at all. What Uzu’s solicitors
demanded and what the AAT
required of CASA were very different things. I’ll say it again: CASA chose not to attend because it had better things to do at the time.
But back to the horror story. Let’s remind ourselves of the grounds of Uzu’s application to the AAT. The horror story accurately reports this clanger:
20 Jan 99:Uzu files a notice of application for review of the CASA decision to suspend its AOC, claiming that the Authority had acted ultra vires (outside its legislated authority); breached rules of procedural fairness and natural justice; failed to provide adequate reasons for the decision; misapplied administrative principles, and "failed to correctly interpret and apply the law".
If you’ve spent any time in the Federal AAT or similar merits review jurisdictions, you will have spotted the glaring flaw in the application: the applicant forgot to mention whether and why it thought the decision was wrong on the merits. Or perhaps that’s CASA’s fault as well. Perhaps CASA should have dropped everything to teach the other side’s lawyers about merits review, at the taxpayers’ expense.
And let’s get to the genesis:
1-4 Dec 97:At the direction of CASA's Canberra office, two investigators and one Cairns FOI conduct an investigation with the following terms of reference: "Determine the extent of operations in the Torres Strait region which are being conducted for fare paying passengers that fall into the definition of RPT and which are currently being conducted as charter." The TOR directed that: "The differentiation between RPT and charter that is to be used for this investigation shall be drawn from the "draft" paper prepared by (a CASA lawyer) as attached."
The draft opinion, later obtained by Uzu, attempted to define the five elements which must exist to constitute RPT. However it provided no definitions of two of the critical elements: "Specific route" and "fixed terminal".
The investigators had thus been instructed to investigate whether operators were in breach not of a regulation or rule, but of a draft opinion, which failed to provide critical definitions.
Pretty damning stuff, if it were completely accurate and if it made any difference.
One of the many inconvenient facts that Mr Phelan managed not to include in his story is that the operations in question were found by the AAT to be unauthorised RPT. CASA’s opinion on the interpretation of the distinction between Charter and RPT, and its effect when applied in the context of the specific operations that were being conducted in the Torres Strait at the time,
were put to the AAT, the AAT
agreed with CASA as to the correct interpretation of the distinction between RPT and Charter, and the AAT
upheld CASA’s decision that operations in question were
unauthorised RPT.
If you go here:
http://www.austlii.edu.au/au/cases/c.../1999/329.html you will see some specific, objective and substantiated analysis of the facts and the law on this issue. See in particular paragraphs 175 to 187 inclusive, under the heading “The Regular Public Transport Issue”. The applicant in that matter was doing the same thing as Uzu and others in the Torres Strait, at the same time. Torres’ usual response to this inconvenient decision is that he can’t open the link.
As a litigator you would have experienced the propensity of parties to proceedings to seize upon and interpret any ambiguous statement or circumstance as being beneficial to their cause. It’s only human. Spin doctors prey upon it every day.
Torres always seizes upon the classic government gentle let down with pike, fob off and twist:
The matter could have been better handled. It’s pure genius: the statement means nothing, but can be interpreted to mean anything, and they swallow it every time.
How many complicated matters have you been involved in that were handled
perfectly by anyone?
Every matter can be “handled better”. But by whom, for whose benefit, and to produce what outcome? Perhaps if Uzu’s lawyers had been competent in the Federal AAT jurisdiction they might have handled the matter better and not put their client to as much unnecessary expense and inconvenience. CASA’s lawyer should have been on the end of the ‘phone for the directions hearing on 18 February 99. But neither of those things mean the
outcome of the matter would have been any different. You would be well aware of the important distinction between mistakes that made no difference to an outcome, and mistakes that, had they not been made, would have changed the outcome.
I could go on and deal with each of the selectively quoted or ignored facts in the horror story, but I wanted in my last spare moments to indulge in some more “generalised, subjective and unsubstantiated” pastry flatulence, but on the subject of the Darwin acquittal.
The DPP prosecutes people; CASA does not. The success rate for prosecutions launched by the Commonwealth DPP on recommendation from CASA is about 40 convictions for 1 acquittal.
Because the Commonwealth DPP launched the prosecution in the Darwin matter, we can assume the Commonwealth DPP thought it was in the public interest to do so and there were reasonable prospects of success. The court decided to acquit. If the main witness for the prosecution was lying, the acquittal is a very good thing and the witness should in my view be charged with perjury. If the main witness for the prosecution was telling the truth, the accused is a very lucky man. For the time being.