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CASA and the AAT – CASA fails to “assist the tribunal”

CASA and the AAT – CASA fails to “assist the tribunal”

The recent decision against CASA last month raises some interesting issues.

This involved a trainee [CPL] pilot, who hired an aircraft for which he was properly authorised to fly, arrives a few minutes after last light. The pilot [Fadella], is accused of a range of infractions and falsely accused by CASA of theft [with no evidence] and CASA removes his licence, charging that he is not a “fit and proper” person.

The AAT reverses the decision, saying that the records of CASA must show that the licence had never been removed.

The case and AAT findings are here.

These in particular are the misuse of information and that CASA failed to meet the requirements of:

S33 (1AA)  In a proceeding before the Tribunal for a review of a decision, the person who made the decision must use his or her best endeavours to assist the Tribunal to make its decision in relation to the proceeding.

A referral back to the John Quadrio matter should lead us to a similar point, where John Quadrio attempted to subpoena material to be used in his defence, initially in a criminal case brought by CASA.

CASA failed to fully meet the subpoena and material that was essential for his defence was never provided, despite directions by the AAT.

There were seven undefined charges originally, with these being dismissed in the Cairns Court.

CASA however continued with a “show-cause” notice to remove John’s commercial licence.

Further material continues to come to the surface, which shows that CASA certainly, although they had the power to remove his licence, certainly did so on false premises.

John has always maintained he did nothing wrong.

Paul Phelan undertook an in-depth look at the matter in 2011.

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ADMINISTRATIVE APPEALS TRIBUNAL ACT 1975 – SECT 33

Procedure of Tribunal

             (1)  In a proceeding before the Tribunal:

                     (a)  the procedure of the Tribunal is, subject to this Act and the regulations and to any other enactment, within the discretion of the Tribunal;

                     (b)  the proceeding shall be conducted with as little formality and technicality, and with as much expedition, as the requirements of this Act and of every other relevant enactment and a proper consideration of the matters before the Tribunal permit; and

                     (c)  the Tribunal is not bound by the rules of evidence but may inform itself on any matter in such manner as it thinks appropriate.

Decision-maker must assist Tribunal

       (1AA)  In a proceeding before the Tribunal for a review of a decision, the person who made the decision must use his or her best endeavours to assist the Tribunal to make its decision in relation to the proceeding.

Directions hearing

          (1A)  The President or an authorised member may hold a directions hearing in relation to a proceeding.

Who may give directions

             (2)  For the purposes of subsection (1), directions as to the procedure to be followed at or in connection with the hearing of a proceeding before the Tribunal may be given:

                     (a)  where the hearing of the proceeding has not commenced–by a person holding a directions hearing in relation to the proceeding, by the President, by an authorised member or by an authorised Conference Registrar; and

                     (b)  where the hearing of the proceeding has commenced–by the member presiding at the hearing or by any other member authorized by the member presiding to give such directions.

Types of directions

          (2A)  Without limiting the operation of this section, a direction as to the procedure to be followed at or in connection with the hearing of a proceeding before the Tribunal may:

                     (a)  require any person who is a party to the proceeding to provide further information in relation to the proceeding; or

                     (b)  require the person who made the decision to provide a statement of the grounds on which the application will be resisted at the hearing; or

                     (c)  require any person who is a party to the proceeding to provide a statement of matters or contentions upon which reliance is intended to be placed at the hearing.

Directions may be varied or revoked

             (3)  A direction as to the procedure to be followed at or in connection with the hearing of a proceeding before the Tribunal may be varied or revoked at any time by any member or Conference Registrar empowered in accordance with this section to give such a direction in relation to the proceeding at that time.

Authorised Conference Registrar

             (4)  The President may authorise a particular Conference Registrar to be an authorised Conference Registrar for the purposes of paragraph (2)(a).

             (5)  An authorisation under subsection (4) may be:

                     (a)  general; or

                     (b)  limited to:

                              (i)  a particular reviewable decision or particular reviewable decisions; or

                             (ii)  reviewable decisions included in a particular class or classes of reviewable decisions; or

                            (iii)  a particular proceeding or particular proceedings; or

                            (iv)  proceedings included in a particular class or classes of proceedings.

             (6)  The President may at any time vary or revoke an authorisation under subsection (4).

             (7)  In this section:

“authorised Conference Registrar” means a Conference Registrar authorised under subsection (4).

“reviewable decision” means a decision in respect of which an application to the Tribunal for review has been, or may be, made.

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