Reports of excessive and unreasonable CASA actions
Brian. Paul wrote the article generally from copy CASA documents from the Barrister's brief. He gave CASA the opportunity to comment on the story before it was published. Whilst they made some comments (which were included in the article), no fundamental facts of the matter were ever refuted.
An interesting and significant conflict of CASA opinion occurred between 4th and 20th November 1997.
Creamie’s opinion of the matter was not shared by the then Director and a number of senior CASA staff. Indeed, even Creamie's comments here are generalised, subjective and unsubstantiated.
I have always been a staunch advocate of a strong regulator and indeed, CASA employs some excellent, competent, professional staff. Unfortunately, the problem appears to be a small minority of incompetent and vindictive staff.
An interesting and significant conflict of CASA opinion occurred between 4th and 20th November 1997.
Creamie’s opinion of the matter was not shared by the then Director and a number of senior CASA staff. Indeed, even Creamie's comments here are generalised, subjective and unsubstantiated.
I have always been a staunch advocate of a strong regulator and indeed, CASA employs some excellent, competent, professional staff. Unfortunately, the problem appears to be a small minority of incompetent and vindictive staff.
Last edited by Torres; 3rd Sep 2003 at 12:55.
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CASA has the view that it is always correct and that they can do no harm. I have watched what they have done to a certain Chief Pilot (now ex CP) in Darwin. All based on rumour and innuendo, by their own admission, in writing for Goodness sake!! They have tried to make his life a misery. He won't let them though and continues the fight.
Phelan has written about that case as well. Don't forget that this thread was the "reports of excessive and unreasonable CASA actions."
In the HE case he has been taken to task three times for the same "incidents" all based on reports from disgruntled pilots. Even though his brief has provided the data to CASA they relentlessly bore on. They prosecuted him and lost. But he used a QC called John Langmead. The case ran for 4 days. Shudder to think of the cost. Certainly unresonable if you look at the result!!
From what I hear in the North it seems that this "excessive " tag does not come from the local CASA guys. They seem quite reasonable and understand the difficulties of ops in the Territory.
Howver you try dealing with Haslam and Anastasi and the others in the legal and investigatory branch and you have real problems. They believe they can do no wrong. They tie up the AAT and the witnesses. It is not until they poor witness comes before a proper Court that they relise how CASA works. It ain't easy mate and some have found to their horror that there is no support from CASA and they are left out in the cold.
Word is around that some of these guys are likely to be on the receiving end of some claims for losses suffered by pilots and Companies. Imagine what UZU went thorugh and what it cost. The deepest pockets in aviation disputes with CASA are owned by CASA, and that is why you don't hear about the various losses of CASA because they don't lose that often as the pilot can't afford the cost of the case.
However if you talk to John Langmead ( he did the WA float plane case and the Hone Edwards defence in Darwin) you will find that more and more people are standing up to the big bad wolf. Also some actions against an organisation that shoots first and asks questions may lead the outfit to put its gun back in the pocket!!
Keep digging Paul. Get as much info as you can and keep the bastards honest!
I reckon that cream puff description was right on.
Phelan has written about that case as well. Don't forget that this thread was the "reports of excessive and unreasonable CASA actions."
In the HE case he has been taken to task three times for the same "incidents" all based on reports from disgruntled pilots. Even though his brief has provided the data to CASA they relentlessly bore on. They prosecuted him and lost. But he used a QC called John Langmead. The case ran for 4 days. Shudder to think of the cost. Certainly unresonable if you look at the result!!
From what I hear in the North it seems that this "excessive " tag does not come from the local CASA guys. They seem quite reasonable and understand the difficulties of ops in the Territory.
Howver you try dealing with Haslam and Anastasi and the others in the legal and investigatory branch and you have real problems. They believe they can do no wrong. They tie up the AAT and the witnesses. It is not until they poor witness comes before a proper Court that they relise how CASA works. It ain't easy mate and some have found to their horror that there is no support from CASA and they are left out in the cold.
Word is around that some of these guys are likely to be on the receiving end of some claims for losses suffered by pilots and Companies. Imagine what UZU went thorugh and what it cost. The deepest pockets in aviation disputes with CASA are owned by CASA, and that is why you don't hear about the various losses of CASA because they don't lose that often as the pilot can't afford the cost of the case.
However if you talk to John Langmead ( he did the WA float plane case and the Hone Edwards defence in Darwin) you will find that more and more people are standing up to the big bad wolf. Also some actions against an organisation that shoots first and asks questions may lead the outfit to put its gun back in the pocket!!
Keep digging Paul. Get as much info as you can and keep the bastards honest!
I reckon that cream puff description was right on.
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Well Slice seems you are a whinger as well. I have only had a bit to do with HE and found him to be OK as long as you do the job properly. When you don't he gets a bit unhappy. And why not ?
We all know that is bloody hard up here. You can't afford to slack off like some of the guys and girl did. Then when the chips are down claims are made abpout breaking the rules. Bottom line is he is still there. The Company is still there running well and the moaning whinging lazy pilots are gone. But still try to trump up a pay back and dob him in to CASA. Only trouble is - hasn't worked.
The local CASA guys have seen the light and look at the facts. They speak for themselves. Go get a life the moaners!
I wouldn't mind being bak there and maybe will soon. Good luck HE
We all know that is bloody hard up here. You can't afford to slack off like some of the guys and girl did. Then when the chips are down claims are made abpout breaking the rules. Bottom line is he is still there. The Company is still there running well and the moaning whinging lazy pilots are gone. But still try to trump up a pay back and dob him in to CASA. Only trouble is - hasn't worked.
The local CASA guys have seen the light and look at the facts. They speak for themselves. Go get a life the moaners!
I wouldn't mind being bak there and maybe will soon. Good luck HE
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:
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:
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:
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:
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.
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.
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.)
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".
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.
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.
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.
Whinging???
How do you characterize that statement as whinging!?!?! It is just a fact - that is the way he operates. I have known about this git since he tried to tell the Kendall guys that they didn't know how to work out TAS on the whizz wheel!! What a ****.Still he has got all the cash from Ngukkur so at least he worked out how to keep his fingers in the till. One bro ripping off alot of bros - poetic somehow!
Last edited by slice; 7th Sep 2003 at 17:35.
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I wonder what all these disgruntled little ex air ngukurr washout tossers would do without this forum to whinge on.
I am curious though, with all the mud slinging against H.E no one seems to have been personally screwed over by him, they just seem to think they were because they didnt get what they wanted - poor babies.
If he is as dodgy as people say it must be a very lucky company to enjoy the safety record it has.
I am curious though, with all the mud slinging against H.E no one seems to have been personally screwed over by him, they just seem to think they were because they didnt get what they wanted - poor babies.
If he is as dodgy as people say it must be a very lucky company to enjoy the safety record it has.
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Well well the slice is still whinging. I reckon the Anti C will be on the button. Word is He will be doing just. Recovereing his costs from the tossers. They had better watch thereselves!!
Well, Creamie, I guess we'll never know the merit of CASA's administrative action, since CASA repeatedly refused our request to prosecute and we were thus refused our day in Court. I suspect the reason for that refusal was that CASA deemed it was a case the DPP couldn't win and the last thing CASA wanted was to have Mumbles et al in Court!
Whilst we're on the subject ... what was the legislative power used to release the Uzu Air file to the Sydney journalist? One would think CASA operator files are confidential.
Whilst we're on the subject ... what was the legislative power used to release the Uzu Air file to the Sydney journalist? One would think CASA operator files are confidential.
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Torres I reckon you could work out that it is not CASA that prosecutes, its the DPP. If the case assembled by CASA contains rumour and innuendo and little hard evidence then I reckon the DPP would tell CASA not to wast it's time ( and our money!!) thank goodness.
As for the details on UZU - that case like all the others is a matter of Public record - look up the case on the AAT records and everything is there. Shame is that the same dosen't happen in the magistrates court unless there is an appeal, or the matter goes further. So we have to rely on eyewitness reports or the demented ravings of a reporter who has no idea of the ramifications of his inept reporting. But - hey - whats new.
I reckon Phelan geyts it right most times. It would be ideal if Langmead could give us the oil, then we really would have the dinkum. Oh well dream on, poor tossers.
As for the details on UZU - that case like all the others is a matter of Public record - look up the case on the AAT records and everything is there. Shame is that the same dosen't happen in the magistrates court unless there is an appeal, or the matter goes further. So we have to rely on eyewitness reports or the demented ravings of a reporter who has no idea of the ramifications of his inept reporting. But - hey - whats new.
I reckon Phelan geyts it right most times. It would be ideal if Langmead could give us the oil, then we really would have the dinkum. Oh well dream on, poor tossers.
Oh Torres, will you never learn? The DPP and criminal courts don’t jump to the snap of your fingers either. The armless and legless Black Knight from Monty Python and the Holy Grail is not a good look for you.
As to the leaking of information, that’s inexcusable. I suggest the operator complain to the AFP, the Minister and the Ombudsman immediately.
As to the leaking of information, that’s inexcusable. I suggest the operator complain to the AFP, the Minister and the Ombudsman immediately.
