Any news on Barrier? Minus the drift.

[Sunfish]

Creampuff, the core of the problem:

All lawyers will recognise the oft cited aphorism of Lord Hewart from Rex v Sussex Justices; Ex parte McCarthy:

“… it is not merely of some importance but is of fundamental importance, that justice should not only be done, but should manifestly and undoubtedly be seen to be done.” 1

Lord Hewart was encapsulating a principle that had been long known and often expressed 2. Another pithy articulation of part of the scope of the principle is that of Lord Bowen:
“… Judges, like Caesar’s wife, should be above suspicion …”. 3

And Lord Atkin said:

“Justice is not a cloistered virtue.” 4

The High Court has expressly applied Lord Hewart’s aphorism a number of times,5 as have other Australian courts.




..................... I use the word “justice” to mean fair outcomes arrived at by fair procedures. To whom must justice, in this sense, appear to be done? The observer is not a party, not even the accused in a criminal trial.13

The relevant observer is always the “fair minded observer”, acting “reasonably”.14

Seen to be Done: The Principle of Open Justice - Supreme Court : Lawlink NSW


I submit that CASA does not appear to abide by this standard, at least according to many people who post here. THe question then is if they are Spieglemans "fair minded observer."?


I also submit that if there is substance to the allegations regarding the behaviour of CASA and such alleged behaviour continues, there is one day the possibility of an extremely nasty and unpleasant result for CASA.

[Creampuff]

And all of the Federal Court judges in the Polar/Butson matter are unaware of those principles?

You should entertain the remote possibility that Federal Court judges know what they are doing.

[thorn bird]

Sunny, your observation is astute and timely. Creamie provides evidence of just how affective the law is at protecting itself, but to what end, "Justice?"
Why was the law written? to promote safety?. Was it to contain the industry? or for the benifit of the industry? Perhaps to aggrandise those writting the Law and consolidate their power?.
If it was written to promote safety it has patently failed.
if it was written for the benefit of the industry it has patently failed,
so one can only assume it was written for the other reasons.

[Creampuff]

The quotes in Sunny’s post are of statements made by …… judges.

The quotes in my post are of decisions made by ….. judges.

At the end of the day, all you are saying is that you disagree with the decisions of ….. judges.

I’d suggest that if you don’t like the outcomes, you become a judge or a legislator.

[Sunfish]

Creampuff of course the Fed Judges are aware of those principles. However as your post pointed out the 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.

I would welcome some comment on my opinion that if this approach continues. It is all very well talking legal niceties, but what happens if someone believes they have been seriously wronged and decides to take matters into their own hands?

To clarify what I mean; the reason we actually have a legal system at all is to prevent the feuds, vendettas, murders and arson that blighted communities for centuries and which Shakespear alluded to in Romeo and Juiet. If the legal system and the Regulator are percieved to totally stack the system against the little guy then we could see some "unintended consequences". The least of which might be a GA strike.

As to Barrier and its alleged transgressions, CASA appears bent on killing the business. The Federal Government paid $67 million to Pan Pharmaceuticals after a civil servant tried to do the same. This could all get very ugly.

$67 million a Pan Pharmaceuticals painkiller | thetelegraph.com.au

[aroa]

mind the carpet...!

Sunny is right. He is not alone in postulating that there could be unhappy consequences for CASA if it continues down its current path.

With any CASA "investigation", kill off mission or whatever,.. CASA persons are not "fair minded observers"...they are biased observers, part of the very wrong, no liability, unaccountable, POWER structure that is all to often used and seriously abused.
IMHO if alleged reg breaches were handed on to a totally CASA free/independent proper investigative organisation to examine fairly and squarely the issues at stake,...the sort of buggery we see perpetrated by CASA, time after time, after time could/SHOULD become a thing of the past.
The bullsh*t that now passes for "investigations" and "cases" that fail with diabolical consequences, eg J Quadrio for one,..has the continuing problem that its all INHOUSE CASA bullsh*t.

It all HAS to be removed from the Regulator...and soon...or else.!
What was that movie title again.."There will be blood" ?

Submissions to the Senate should push this line HARD.
Please axe off CASA "investigations" and prosecutions to an independant agency.
It would save much angst and anger, depression, financial pain and outrage by CASA victims...and possibly the carpet.

[Creampuff]

[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.

[206greaser]

I'd bet $1000 dollars that casa issues barrier with a show cause Friday arvo. Any takers? They will then apply for another 28 day grounding. Because even blind Freddy could see what casa are trying to do here.

Hope I didn't ruin the surprise mark.

[Sunfish]

Cream puff, not one bit of evidence in the Hutson case was tested in court. the argument that CASA made was not that it did any of the things that Butson alleged, but that Butson had no right to complain abou.t ANYTHING CASA did.

...And the Judge agreed, making CASA judge jury and executioner with no right of appeal.

[justinga]

206greaser, I bet you 98 cents nobody will call you on the bet. If 2 people do, I will chuck another k in the pot to back you.

[weloveseaplanes]

CASA judge jury and executioner

CASA judge jury and executioner

A fundamental requirement of justice is the division of power. This is why we have police, lawyers, juries and judges.

Vest these powers in one organisation and the inevitable outcome is injustice.

As Lord Acton noted "Power tends to corrupt, and absolute power corrupts absolutely."

The corrupting nature of power is discussed on the ActionInstitute website:

"But, apparently, the only way they can think of to do this “good” is to impose more restrictive laws.

Now, obviously, there is no point in passing a law which requires people to do something they would do anyhow; or which prevents them from doing what they are not going to do anyhow. Therefore, the possessor of the political power could very well decide to leave every person free to do as he pleases so long as he does not infringe upon the same right of every other person to do as he pleases. However, that concept appears to be utterly without reason to a person who wants to exercise political power over his fellow man, for he asks himself: “How can I ‘do good’ for the people if I just leave them alone?” Besides, he does not want to pass into history as a “do nothing” leader who ends up as a footnote somewhere. So he begins to pass laws that will force all other persons to conform to his ideas of what is good for them.

That is the danger point! The more restrictions and compulsions he imposes on other persons, the greater the strain on his own morality. As his appetite for using force against people increases, he tends increasingly to surround himself with advisers who also seem to derive a peculiar pleasure from forcing others to obey their decrees. He appoints friends and supporters to easy jobs of questionable necessity. If there are not enough jobs to go around, he creates new ones. In some instances, jobs are sold to the highest bidder. The hard-earned money of those over whom he rules is loaned for questionable private endeavors or spent on grandiose public projects at home and abroad. If there is opposition, an emergency is declared or created to justify these actions."

(Power Corrupts | Acton Institute)

CASA has absolute power and is absolutely corrupt. It can't be anything but!

[Creampuff]

Cream puff, not one bit of evidence in the Hutson case was tested in court.

The argument in court about the pleadings assumes every bit of evidence that Mr Butson would have given was absolutely true. That's the point. Even if all of his evidence was accepted as true, it would have made no difference to the outcome.

the argument that CASA made was not that it did any of the things that Butson alleged, but that Butson had no right to complain abou.t ANYTHING CASA did.

Rubbish. CASA's argument was that Mr Butson and anyone else can complain about everything and anything, but none of his complaints disclosed a cause of action against CASA or its officers.

...And the Judge agreed, making CASA judge jury and executioner with no right of appeal.

No. The judge agreed that none of Mr Butson's complaints disclosed a cause of action against CASA or its officers, even if the facts asserted by Mr Butson were assumed to be true.

But you should be whinging to the federal court judge who made the decision, and the three federal court judge who agreed with that decision. Have you done that, or will you continue to have a pointless argument about it on PPRuNe?

[Sunfish]

Creampuff, if what you say is true then no pilot or airline has any rights at all.

That is going to lead to a very nasty situation one day.

[SgtBundy]

Maybe its just my layperson reading of that decision, but I read it as Polar saying "they can't order us to do things if it hurts our business" and the judges response was "no, they are under no duty to protect your business, go away". It also seemed to read as bringing the actions against the individuals was pointless as there was no recourse in the law against them individually.

I doubt that means there are no rights for AOC holders or pilots - unless you can show they actually acted without the authority of the act you are up for a tough argument. The pattern of behaviour argument also sounds thin unless you can prove there was malice intended, and not just a battle of egos and opinions.

[Creampuff]

A refreshingly objective summary of the decision, Sergeant.

[thorn bird]

"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."

Creamie, very, very rarely CASA actually learn something from other countries.
I think you will find that Mr. Phelan's silence is more due to CASA adopting the tactic used by the Singapore Government to stifle criticism and dissent, by swamping the individual or organization with writs or threats of writs.
Someone very close to me, who happened to be a judge, said to me once
"The law applies to everyone, justice on the other hand only applies to them that can afford it".
I have no doubt what you say is true and CASA have no liability to anyone under the law as written., and why not, they wrote the law, and it took them over twenty years and a quarter of a billion dollars to do it.
however, at the end of the day what they produced is rubbish, is killing the industry it purports to regulate and is not achieving what it was allegedly written to achieve. Who's fault is that?, unfortunately its ours, we let it happen and now we are paying the price, once corruption takes hold its very hard to eradicate.

[Creampuff]

I see.

So Mr Phelan has been threatened with legal action by CASA if he reports that:

(1) The Federal Court ultimately denied all of Polar/Butson’s claims in this decision: Polar Aviation Pty Ltd v Civil Aviation Safety Authority (No 4) [2011] FCA 1126 (30 September 2011) and

(2) The Full Federal Court denied Polar/Butson’s appeal in this decision: Polar Aviation Pty Ltd v Civil Aviation Safety Authority [2012] FCAFC 97 (4 July 2012)

That’s very odd. I would have thought CASA would warmly welcome reports of its success in the matter.

I’ll let you know if I receive any threats of legal action, now that I’ve bravely reported facts that have already been published by the Federal Court.

[Trent 972]

It's now Friday after 5pm, so I guess Barrier have received their latest 'rogering' from casa. Any news?

[anothertwit]

roger on the rogering......

[Shed Dog Tosser]

They could not have a spine or moral thought between them.

Justice is not being served here, shame on you CASA.