CASA – Words fail.

[thorn bird]

A question for Cream Puff..and I'm not being facecious, I would truely value your advice, because I am becoming increasingly uneasy about where I would stand legally as someone employed by a company,to implement procedures for the safe operation of that companies aircraft.
Where would I stand with regard to duty of care under the Law, if I accept
the direction of a CASA representative and implement a procedure that all my experience and training knows to be unsafe and god forbid an accident occurs.
As with CASA do I have no duty of care?..after all I was directed by the experts..is that a defence for killing someone doing something I know to be unsafe?

[Creampuff]

You both end up as defendants. The proportion of your respective liabilities would depend on the extent to which you respectively caused the damage.

[thorn bird]

I guess what you are saying CP is that I'm damned if I do and damned if I dont...This is the situation I find myself in...how do I protect myself and my company??
If I dissent to the CASA direction I become a "Not a fit and proper person" which has been threatened...If I aquiece to their direction to save my position and ensure my company can continue to do business I could end up spending a considerable time in prison, or be bankrupted, CASA get off the hook because they have no duty of care?...am I right with this hypothesis?

[Frank Arouet]

CASA get off the hook because they have no duty of care

But the individual "does" have a duty of care, not the conglomeration. That individual is very exposed to action when he is no longer under the umberella of protection that the conglomeration provides. There are heaps and heaps of them. (no pun intended)

When you people understand the principle of attacking the lowest common denominator, you may be on a winner.

This can possibly be done in a Magistrate's Court at a very minimal cost with a criminal conviction, (for perjury for instance), that leaves open the possibility of civil action.

[Stan van de Wiel]

. Where would I stand with regard to duty of care under the Law, if I accept the direction of a CASA representative and implement a procedure that all my experience and training knows to be unsafe and god forbid an accident occurs.

If this is a change of procedures it must be according to the Ops Manual, simply ask CASA for a written direction to ammend same. CASA always demand everything in writing and will no doubt approve by return. (there has to be a first time doesn't there?)

. Creampuff
You both end up as defendants. The proportion of your respective liabilities would depend on the extent to which you respectively caused the damage.

One would be the Commonwealth Auth with unlimited funds, (0% liability) the other the G.A. Operator who failed to get the approval to ammendment in writing. (100%) Wonder why CASA never approve O.M.s ? Must be a safety consideration. I do believe that CP is sincere in thinking that this is how the real world works, maybe a bit of lateral thinking needed, called reality!

SW. Empty skies are safe skies!

[Kharon]

Flat earth, flat line – flat denial.

SVW - If this is a change of procedures it must be according to the Ops Manual, simply ask CASA for a written direction to amend same.

Stan – valiant effort but no Ceegar. Gather round children and hear my cautionary tale.

Once upon a time in land far, far away there lived a rich Farmer who had a large, successful place which supported many happy peasant families; and, as it was an old place people had settled and opened businesses in the near by village. In the rough manner of the lower classes, the people where happy enough; and, their rustic, messy easy going ways caused no real offence to the upper classes.

Now, this part of the country was ruled by a newly appointed Royal Chamberlain (RC) who was having great troubles with the Big King (who was a right royal bad lot). The troubles were all about power and money, the usual suspects in this type of tale. Well, the RC knew that only an improved performance could secure his new post; so, to make sure that he was protected, he appointed some of his favourite, trusted men as Deputy Head Chamberlains (DH), they willingly did his bidding and generally; through brute force, ignorance and the newly discovered pedantry made life miserable for the happy peasants.

Then one night, a favourite child of the village did not come home. They searched and looked and worried and searched some more, but to no avail. Young Johnny was mysteriously gone.

The RC knew that the BK was cranky about this and the blame would surely roll down hill; he also knew that the BK was not a fan of the outspoken farmer. Quick as a wink the RC boys seized the chance and made a pact; no matter what it took they were going shine. So they took action and raided the farmer.

Now then, apart from being genial, the farmer was also a shrewd cookie who had, in the past thwarted BK 's ambitions and caused general offence by being independent and not allowing the bully to dictate where and how every blade of grass was grown. He had made safety plans to prevent the inadvertent loss of children; and, those plans had been sent off to BK for royal acceptance. Fees were paid, and the plan had been operating for a long time. The BK had even allowed some of the onerous restrictions (care and feeding of children) to be removed. The Farmer was quite happy that his 'new' plan (being paid for and accepted) and, the newly issued approval would provide protection against the worst excesses of the DH.

But, tragically the plan failed; the RC's DHs infuriated by the mild passive resistance and arguments that the villagers were complying with the royal BK accepted plan, lost it. There was no depravity or excess they did not sink to in the madness which followed.

In the end the happy peasants flew to far off lands, but the leaders were all rounded up and subjected to the infamous trial by innuendo; alas, they lost this final battle too.

Aye well; the rest is now history, there is a wasteland where once stood a farm which supported a village. The RC made a little speech at the executions, which will live forever in the minds of fair, honest folk. "It is unfortunate that you believed you're plans to be accepted, your cause just and that your village was safe – off with their heads".

And if you think that's a fairy tale – do some research.

Selah.

[thorn bird]

Stan I agree with your idea re written direction, it was asked for, both in the case of unsafe practice, and in directions to alter certificated AFM procedures. My legal advice was that this placed the certification of the aircraft in jeopardy which in turn could negate the aircrafts insurance.
In all cases written direction was denied, however the inference was if you didnt do as you were told you wouldnt be permitted to operate the aircraft, so again damned if you do and damned if you dont.
I imagine the airlines have a robust legal team to challenge these things but what chance a GA operator affording that? and of course if you dissent even on safety grounds you are "Not a fit and proper person", so your in a lose lose situation.
I seriously believe now that it is CASA's policy to shut down GA. Why I have no idea, but at least they could be open and honest about it.

[Sarcs]

TB don't envy your situation...treading the thin line between pergatory and redemption!

TB: I seriously believe now that it is CASA's policy to shut down GA.

Phelan's article also hinted at Fort Fumble's philosophy for GA:

Three separate industry identities who have discussed this with us report that one official who is directly involved has openly stated his belief that aviation in Australia should be limited to airline and defence operations.

TB: Why I have no idea, but at least they could be open and honest about it.

Why indeed! Maybe GA is seen only as..."that troublesome third cousin"...where all the miscreants and cowboys of the industry hang out!

[kaz3g]

Where would I stand with regard to duty of care under the
Law, if I accept the direction of a CASA representative and implement a
procedure that all my experience and training knows to be unsafe and god forbid an accident occurs.

Get it in writing!

kaz

[Creampuff]

Yes. It is CASA’s policy to shut GA down. If not for the meticulous investigative skills of the various experts in this area, the plan would never have been discovered or exposed.

What a wonderful catharsis it is for all of us now, to finally acknowledge the reality, collectively and publicly: CASA’s policy is to shut GA down.

So: Let’s all sung “Kum bay yah”.

What next?

I know: let’s vilify CASA on PPRuNe! The Easter Bunny will come to the rescue of GA and we’ll all be happy again. Yay!

[Sunfish]

The problem for you Creampuff is that you can't make the problem go away.

There are consistent accounts over many years in many forums, not just he internet, alleging that CASAs conduct could be improved in many ways.

Furthermore, a small but significant number of people have spent very considerable amounts of their own money to object to the behaviour of the regulator in the courts.

The consistent thread of these allegations is that the behaviour of the regulator is capricious unjust ineffective and vindictive.

I don't believe any other Government entity, even including the ATO, has been now or ever subject to the stream of allegations made against CASA.

We are not talking about simple incompetence here. This is our concern.

[Kharon]

The Devil is in the detail

Sunny - Furthermore, a small but significant number of people have spent very considerable amounts of their own money to object to the behaviour of the regulator in the courts.

This is, I believe, the radical of a large number of complaints. The problem seems not lie so much within the 'actual' judicial system; but the ways, means and motivation used to place a person or organisation into that system.

Research into the legal head of power for Request Corrective Action (RCA) is very enlightening and worth doing. The actual power of a RCA and your ability to defend against it is also worth looking at; very carefully. Next step, look at the power to acquit or escalate; then, just for fun look at the defence and options available before allowing the escalation to occur. If you don't, you are well along the road to perdition.

A lot of the 'problems' stem from this point. CASA can and frequently do with alarming rapidity add up three or four 'half arsed' (subjective) RCA; and, with indecent haste parley the 'dross' into the 'gold' of Non Compliance. From this point on you are dealing with lawyers, the system and starting a long way behind the 8 ball.

Translating a 'subjective' RCA into a fit with an existing regulation is an art form with this outfit. Once the matter gets to the AAT unless it's a clear cut issue, the needle is very effectively hidden under the manufactured paperwork haystack.

Selah

[Creampuff]

The allegation that the regulator is “capricious unjust ineffective and vindictive” is not a problem for me, Sunfish. It’s a problem for the people who wish to prove the allegation.

I have the Federal Court, the AAT and the OLSC on my side. I know who’s on your side.

I know which side I’d rather be betting on.

(It would be instructive for you to read what the AAT said about the FOI in the Polar matter – the AAT said, in not so many words, that he was an officious pr*ck. But the AAT wasn’t very impressed by Mr Butson character either. Nor did it make much difference to the merits of the decisions. You need to try to understand both sides of a story.)

[Sunfish]

Creampuff, I am an inexperienced PPL with no commercial ambitions. I am aware that there are "colorful" aviation characters that must be a pain in the backside for CASA to have to deal with. I have limited exposure to CASA and all my interactions with them have been good.

Nevertheless, I have had some administrative experience gained in a business career endiing up as CEO of a firm, and what I see of CASAs characteristics, if only a fraction of what I read is true is, to put it mildly, alarming.

[Sarcs]

Nevertheless, I have had some administrative experience gained in a business career endiing up as CEO of a firm, and what I see of CASAs characteristics, if only a fraction of what I read is true is, to put it mildly, alarming.

Fancy that are relatively unbiased...almost layman (obviously with a brain) giving an outsider assessment on the foibles of the regulator!

Careful Sunny you'll get an "unsubstantiated twaddle" remark from Creamy if your not careful!!

[Creampuff]

It's a little word with big implications: If.

[Kharon]

A mighty word

Have you told me a porkie Shoreditch ?– perhaps it is human

If you can dream - and not make dreams your master;
If you can think - and not make thoughts your aim;
If you can meet with Triumph and Disaster
And treat those two impostors just the same;
If you can bear to hear the truth you've spoken
Twisted by knaves to make a trap for fools,
Or watch the things you gave your life to, broken,
And stoop and build 'em up with worn-out tools:

[Stan van de Wiel]

CP: The allegation that the regulator is “capricious unjust ineffective and vindictive” is not a problem for me, Sunfish. It’s a problem for the people who wish to prove the allegation.

as usual CP you will only look at one side of an argument! when one side regularly control the "evidence" to their own advantage how is the Court or defendant to know anything is missing.

I have the Federal Court, the AAT and the OLSC on my side. I know who’s on your side

If these entities are all on your side (whatever that may be) wouldn't that be a rather biased system. Yet here you are exclaiming that the legal system works. works for whom? If by on your side you mean the side of your ex employer, i nowhave the answer as to why the OLSC never answered my mail. Thank you.

the AAT said, in not so many words, that he was an officious pr*ck. But the AAT wasn’t very impressed by Mr Butson character either. Nor did it make much difference to the merits of the decisions. You need to try to understand both sides of a story.)

character references aside, what has any of this to do with Aviation Safety.
I have dealt with some rough characters in aviation, but when it came to their flying they were spot on.

[Creampuff]

Allegations to the effect that CASA and its officers are “capricious unjust ineffective and vindictive” were made in both the Polar and Repacholi matters. And what did the Federal Court find? You could strain yourself and go back one page of this thread, and read what was alleged and what was found.

That’s what I mean by the Federal Court, AAT and OLSC being on ‘my side’. That is, they’ve all had these kinds of allegations about CASA and its officers made to them, and they’ve all been rejected. That’s notwithstanding that the Federal Court and the AAT occasionally find that CASA has misconstrued/misapplied the law or hasn’t made the preferable decision in the circumstances.

Funny how the court and tribunal can be diligent and independent enough to make those decisions against CASA, but they are, apparently, too lazy, incompetent or corrupt to see the stinking cesspit of capricious unjust ineffective and vindictive activity behind the smooth representatives. (How are you going with citing a matter in which counsel for CASA was a QC?.)

[W]hat has any of this to do with Aviation Safety. I have dealt with some rough characters in aviation, but when it came to their flying they were spot on.

Good question and good point.

I have dealt with some officious pr*cks in aviation regulation, but when it came to their technical judgments they were spot on. You should try to be objective and entertain the possibility that CASA FOIs might be ‘rough characters’ but make good technical calls.

I, of course, am biased, because I entertain the possibility that both the CASA and FOI and Mr Butson were making technical calls on the basis of OWTs, and were both wrong.

[Sarcs]

"You need to understand that the gaps in the Commonwealth's powers over aviation-related matters are very narrow. If an AOC holder is a trading corporation formed within the limits of the Commonwealth, then the Commonwealth's powers in relation to that corporation are NOT restricted merely to matters that go to the safety, regularity or efficiency of air navigation; nor is it restricted to matters in relation to which the Commonwealth has power as a consequence of the external affairs power. In short - and not to put too fine a legal point on it - the Commonwealth can regulate existing corporations on whatever grounds it likes."

Recognise this quote Creamy?? Got to hand it to you mate you're nothing but consistent!

What gets me is that your still banging away defending the indefensible, beloved regulator! Maybe you should have taken note from one of your protaginators at the time:

"xxxxxCP, go get a life for God sake!"

ps Thought I'd better try and lift my game to the world according to CP

"I’m flabbergasted: That’s two mistakes in as many posts! Quotation marks denote that the words between the marks are verbatim. The term “specified route” does not appear in CAR 1988 206(1)(c). I think you meant “specific routes”. On that question, I respectfully agree with Deputy President Dr xxxxxx's analysis in the Coral Sea AAT matter (see: http://www.austlii.edu.au/au/cases/cth/aat/1999/329.html)"

Did I get it right Creamy??