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Polar Aviation – W.Aust

This started simply as a discussion with a CASA FOI as to how EFATO was to be carried out by Polar’s CASA authorised ATO.

It proceeded to a “show cause” notice and numerous hearings in the Federal Court.

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There’s Still a Mouse in the House at CASA

Paul Phelan , 2 February 2009 – 11:53 am20 Comments

 Bruce Byron and some of his senior colleagues have done a great job cleaning up some serious regulatory black spots. But sadly there’s a surviving “culture” among a handful of CASA individuals who haven’t yet got the message, despite the welcome departures of several of their colleagues. Events suggest there’s still a bad smell around – hence the headline.

Some of the miscreants’ specialties appear to include negligent misstatement, breaches of confidence, injurious falsehood and malicious abuses of process and authority. Our files contain copious examples suggesting that some of these matters should be subjected to external criminal investigation.

These characters are as much an embarrassment to their colleagues and most of their senior managers as they are an unnecessary boil on the backside of general aviation.

One of the many aviation lawyers who keep us informed puts it like this: “They’re trying every trick in the book and they want to put people out business. They hate GA, and they go after selected individuals with a vengeance that is legendary.”

So we’ll be running a series of case studies of the way they operate. They’ll be amply documented, and will invite you to form your own opinions rather than forcing ours on you. When they appear,AviationAdvertiser.com.au will provide free space for any response CASA may wish to offer.

It often starts with a difference of opinion between a CASA official and an air operator certificate (AOC) holder on some practice or procedure or a differing interpretation of a rule or regulation.

Let’s start with the problems faced by Clark Butson, flying school and charter operator and a highly experienced senior instructor based in Port Hedland, WA. Clark has flown over 18,000 hours in general aviation, half of it as an instructor. He had a spirited debate with a couple of FOIs over the question of the instant shutting down of engines operating at high power during training exercises. He knows that if you do too much of this you run the risk if damaging an engine. Flying schools have therefore developed practices and policies to protect themselves from costly unscheduled maintenance on cracked cylinders, damaged bearings and propeller gearboxes, and other maintenance nasties.

Above:  Clark Butson, Polar Aviation

According to Butson the discussion developed into a yelling match. It was soon followed by a series of regulatory actions against the AOC holder and against his own approvals and licences, which had the effect of seriously damaging his business and reputation. Without passing any opinion, we invite you to take a look at a detailed account which he filed with the recent Senate Regional & Rural Affairs Committee inquiry into the administration of CASA.

In this 29-page submission, Butson details some incredible twists and turns which are now the core of a current action for damages against our regulator, and separately against an individual CASA official. He applied under the Freedom of Information Act for documents relating to the matters. He was told there were 100 files, with an average of 99 pages each, and that after CASA had vetted them they could send him copies of any material that survived that process if he wouldn’t mind dropping $10,000 in the mail.

The next time we’ll see CASA in court on these issues, the court will be considering an application for discovery of all the relevant documents, which interestingly would make them public property. Meanwhile, you should take a look at Clark Butson’s submission on the web. We think most readers would agree that Butson couldn’t possibly have made all that up, and therefore has every reason to be cross with CASA. Maybe this time they picked on the wrong bloke. Follow the URL below and you’ll be amazed at the saga Butson has detailed:

Click Here to View Senate Committee Submission

COMMENTS:

  • Operations normal, it goes on in most of the distrcit offices, can give hair raising stuff here at Bankstown

  • Peter Stitt says: 2 February 2009 at 2:38 pm

    From the perspective of having done a reasonable amount of expert witness work, as well as having been involved with a number of fights with the National Parks and Wildlife Service, my experience is that discovery is a really good way to go. However you have to have people who both have the time and who know what they are looking for.

    Bureaurcrats are perfectly happy to keep throwing buckets of taxpayers money at pushing a particular agenda and/or protecting their turf, so you need very deep pockets to run a case against them.

    HOWEVER in working up a case you can often dig out information that they would find very embarassing. Low and behold sweet often begins to prevail and a negotiated settlement or something similar can become a possibility. You do need to be in for the long haul though, as it takes time for the leopard to change its spots and so recidivism is not uncommon.

    Following from this would it be possible to run a number of cases against them simultaneously, get them up to their arses in aligators and keep them there with plenty of attendant media publicity?

  • Some years ago they destroyed a rotary and fixed wing business at Hervey Bay in a similar manner. in particular by revoking the Chief Pilot and Chief Flying Instructor approvals of the firm’s principal. CASA then would not agree, or disagree, to the nominated replacements. The firm’s principle had, some time previously, been solicited by CASA to be an FOI, but now was out of favour for no substantive reason.

    I can only admire Polar, Clark Butson and staff for managing to stay in business. I do know from experience what a huge burden they have carried.

  • Richard Rudd says: 3 February 2009 at 8:49 pm

    Rats actually..! There are countless examples of perfidious behaviour of the CASA Thought Police.
    Like the Rum Corps and the Convicts… has anything changed??.. You WILL tug the fore lock, or WE will bring you to heel!

    I blame the CASA Human? Resources Dept that presumably interviews and assesses these people… for doing a piss poor job on some of them. Where do they get these types from? They certainly dont get proper “training”

    Having been on the receiving end of CASA making a “safety ” case out of what was commerce, I am all to aware of the outright lies, defamatory statements and BS they can put up to serve their cause.

    Recently in an attempt to make a serious issue against me about nothing, the CASA person made untrue statements in his sworn statement, corroborated by two distant cronies. Should be some vacancies in that office after the AFP / Courts have done their bit.

    The FAA badge and Logo says ” For the promotion and advancement of Aviation”. Contrast that sentiment with CASA’s dismal record with GA : their non enterprenurial attitudes, gross over regulation and impractical approach for businesses just trying to make a living. Costs and Regulations ad nauseam.

    Its disgusting, its “un-Australian” (the fair go?),and even gives bureaucracy a bad name. And the problem is, over past decades, Goverments and Politicians really dont give a shit.

  • Captian John says: 4 February 2009 at 7:18 am

    What an utterly appalling saga; surely these spiteful, vindictive, arrogant cretins at CASA should be in prison and not in jobs of authority.
    Certainly CASA should not be allowed to dictate ‘at will’ that any business should be [effectively] shut down, that decision should only be taken by an independent arbiter having first considered all evidence – a court of law, for example, would be able to give an unbiased judgment based on facts alone.
    CASA, by virtue of the fact that it is being judge, jury and executioner can not ever been seen to be truly unbiased – especially in view of the apparent self-serving corrupt CASA officials that are making a mockery of the regulations and hold honest business people it utter contempt.
    Mr. Butson should not only be fully reimbursed for the financial hardship he has suffered but also given compensation, and last but by no means least, CASA should also issue a public apology to Mr. Butson.
    I wish Mr. Butson a very successful and stress-free future.

  • My hat goes off to people like Clark Butson …. he has been clever in how he has dealt with the issues and not let CASA get the better of him or his company. When dealing with organisations like CASA you have to hold your ground or they will take every advantage they can get. In some cases it’s about who is policing the police.

  • Greg Ackman says: 4 February 2009 at 9:46 pm

    It’s such a shame that GA is getting walked over by Our Representatives in Government such as the Liberals for the past decade and continuing the neglect with Labour .
    The total indifference of our Elected Officials is just incredible.

    The double-whammy is that there is a small entrenched group of Public Servants who consider that their job is only to serve themselves and their personal agenda. As a closet ‘Little Hitler’ with the draconian weight of “The Rules’ on their side they Burn, Bash and attempt to Bury anyone who doesn’t agree with their views or objectives. These people screw up the good work done by the majority of dedicated people who are the backbone of our public service.

    What we really need is an INDEPENDENT OMBUDSMAN with the powers to fully investigate complaints of victimisation and bastard ism inside CASA and AIRSERVICES . This will FORCE CHANGES to be made that will weed the idiots and incompetents out of these valuable Public Service Institutions.

  • A & A Packer says: 5 February 2009 at 7:44 pm

    A man of generous nature and strength of spirit, the honesty and integrity of a man of 30 years living and flying in outback Australia has been indecently challenged by CASA. And they challenged the wrong guy this time. The character of Clark Butson is highlighted in this costly, lengthy defamation case.

  • M Langridge says: 6 February 2009 at 2:10 pm

    Sounds like the litany of lies and wrondoing by these individuals is well exposed and supported by a range of commercial operators.. all that remains is to sweep the decks of the corrupt bottom feeders and for CASA to come to the table and reimburse the likes of Polar Aviation for the significant legal costs and loss of revenue they have suffered. Here’s hoping common sense prevails.

  • kim wilkie says: 6 February 2009 at 7:22 pm

    As the former Member for Swan I made representations on Mr Butsons behalf in the House of Representatives in the Federal Parliament regarding these matters. When Mr Butson presented the circumstances surrounding his treatment by CASA to me I was appalled at the alleged actions and conduct by representatives of a body whose role is to support and assist general aviation in this country. These issues were raised with the then Minister will little action being taken. Action was taken however by Senators from both sides of the Parliament in Senate Estimates, unfortunatley CASA appeared to treat questions by Senators with contempt. Answers in most cases did not fully respond to the requests made in the full knowlege that it would be months before they would appear before the Senators again. The impression I was given by CASAs actions was that they believed they were “above parliamentary scrutiny “. CASA also appeared to give no regard to the fact that their actions may lead to the demise of a highly respected and successful business. It also appeared they believed if they held out long enough Mr Butson would run out of money to fight them and he would just go away. Mr Butson thought otherwise and is to be congratulated not only for raising these concerns in the first place, despite what I would call victimisation, but for his tenacity and perseverance in continuing the fight. Many a lesser person would have simply given up.

  • Richard Rudd says: 11 February 2009 at 5:04 pm

    Sorry Mr Kim Wilkie, former Member for Swan. I can’t let your statement pass un-commented.

    “…by representatives of a body (CASA) whose role is to support and assist general aviation”

    Wrong, wrong, wrong.!!.. Casa’s Charter does not so specify. Casa’s role has been over the decades to hinder, obstruct, bury GA in a tsunami of (mostly) crap “Regulation”, much of which has nothing to do with safety, but everything to do with “holding the high ground” of Authority,burdening business and creating “jobs” for a burgeoning bureaucrazy. And it has cost the Australian taxpayer very dearly.

    Apart from the hundreds of millions of dollars to run CASA, there has been lost untold millions/billions? over the decades because of hinderance of Regulatory nonsense and CASA lacking any sense that enteprising people in the industry trying to do things might actually benefit the country. And be safe as well.

    Nobody I have ever met in over 50 years involvement in Aviation has climbed into the cockpit and said..” Bye, I’m off to do something unsafe and wont be back, seeya!”. Common sense and survival instinct dictate that folk “play it safe”.

    CASA is NOT the fount a of all safety wisdom. No fountain, just an ocean of (obstructive) Regulation.
    And the “Rats nest” still smells of poor governance.

  • Tom Helm JP says: 27 February 2009 at 10:21 am

    As a former Member of Parliament for the Mining and Pastoral Region in Western Australia and a resident of Port Hedland I used Polar Aviation extensively but not exclusively. I was never disappointed at the service provided both in terms of safety and punctuality; two important aspects whilst travelling in a mostly desert area.

    I struck up a freidnship with Clark Butson during my 15 years a member and was aware of “problems” that Clark had with CASA but I could not believe that CASA would pursue Clark with the vigour it applied until I realised that a number of smaller operators had shut down their operations rather than take CASA on.

    Clark Butson is a different kettle of fish and I believe if justice is to be served then Clark’s fight will be vindicated and CASA will be obliged to go back to its original function promoting general aviation in as safe a way as it can.

  • Unfortunately Tom Helm is completely wrong in his assumption that CASA will be obliged to go back to quote, ” its original function promoting general aviation in as safe a way as it can”. For one thing, there is no guidance or legislative directive from government for CASA to “promote” aviation.

    Secondly, there will be no justice for all those other quote, “number of smaller operators had shut down their operations rather than take CASA on.”

    Thirdly, there is no certainty that anyone can stand up to CASA because it has unlimited funds and there will be no sanctions against the hierarchy of CASA even if they should lose cases in court. Sadly our federal representatives have had the misguided belief that CASA does try to do a good job for general aviation (GA) in much the same way that AMSA does a good job for search and rescue. Nothing could be further from the truth. CASA is directly the no. one obstacle to safety in GA and is the no. one culprit in overseeing the decimation of many individual businesses and the decline of GA throughout Australia.

    I make my statements in light of 40 years as pilot, airport and aircraft owner operator for charter, scheduled service and flying school operations. Also having held chief pilot, maintenance controller, and chief flying instructor qualifications with CASA testing approvals for certain licence and rating issues.

  • It is absolutely beyond belief that a Government organisation sets out to put out of business an organisation – based on a vendetta. They state that “the organisation was deficient in respect of its managment and operational procedures when compared to the conceptual models adopted by CASA”. There are not too many FOI’s or managers who have hard core successful proven bunsiness management otherwise they would not be in CASA, and what and whose ‘conceptual model’ is so perfect? The culture of “let’s get them” has largely taken the place of the past which was one of being helpful. The Examiners of Airmen of the past saw it as their role to encourage, to raise standards, to mentor, to know what was going on and as a last resort to be tough. The industry is in such disarray due to the many misguided CASA policies over many years, and now it appears to be the policy of putting people out of business. What next? Soon there will be no industry to adminster if they are not careful. Knocked out by CASA and king-hit by a world wide recession. Stick with it Clark Butson, there are many who support you.

  • Mick English says: 31 May 2009 at 4:30 pm

    I think that fairness requires a word for all the CASA staff who put in effort above & beyond to assist industry. We shouldn’t all be lumped in with the few, and there are plenty of examples of CASA staff going out of their way to help. How about a few words of recognition for them? You all know who they are!
    Mick English

     […] Separately Mr Clark Butson of WA-based Polar Aviation is also sueing Mr Farquharson and a small number of other CASA officials personally on similar grounds. For details see:http://www.aviationadvertiser.com.au/2009/02/theres-still-a-mouse-in-the-house-of-casa/). […]
  • I have followed this case of Clark Butsons for some time now and wonder that he has managed to keep so many balls in the air for so long against these people.
    Should we in the aviation industry be putting up a general fighting fund to deal with these issues?
    I for one would like to kick it off with a $500 donation to whoever we could find to take up the cause.
    There is a prominent lawyer versed in CASA grief that may like to take up the cudgel
    We have a situation here whereby nobody is game to make any noise otherwise they will be the next one targeted.
    Thanks

  • […] Other victims of alleged CASA abuses whose businesses and lives have been damaged by over-zealous and/or inadequately overseen, trained and supervised officials, say they are watching one of these matters – the events surrounding Polar Aviation’s lawsuit with great interest. See: Mouse in the House of CASA […]

  • Maxine Reid says: 11 November 2009 at 6:06 pm

    I hope that Clark Butson wins. I am one of the early victims of CASA’s nastiness and personal vindictiveness, unfortunately no one in Government or in the Court system would believe that CASA would tell a blatant mistruth in order to get their way, and so I perished. Others had the same misfortune. CASA had their allegations about my company proven wrong in a proper court, but that didn’t deter them from taking the “administrative action” that they wanted. Perhaps any investigation into CASA should go back to the beginning of 2000 to recompense the poor owners who suffered and could not get any help anywhere.

  • Carmel Piccolo says: 16 May 2010 at 12:16 pm

    I refer to Kim Wilkie’s post of 6 February 2010 – in particular, his description of how some CASA officials managed to “dodge” dealing with the overwhelmingly important issues of victimisation and inaccurate or downright corrupt reporting, with more of the same style of “pigmyism” (my term).

    ( . . . CASA appeared to treat questions by Senators with contempt. Answers in most cases did not fully respond to the requests made in the full knowlege that it would be months before they would appear before the Senators again. The impression I was given by CASAs actions was that they believed they were “above parliamentary scrutiny “).

    Wake up Australia!!! This isn’t just a CASA problem. We’re losing the plot. We’re not seeing the Big Picture.

    This type of activity HAS BEEN ALLOWED to become endemic in our country, amongst whatever powers that be, to the detriment of all Australians. If you want proof, just watch Question Time in Parliament and observe the (almost standard) arrogance and contempt with which most MPs treat questions from THE PEOPLE (via their MPs).

    “Pigmyism” in all its manifestations is an attack on our democracy. It initiates and facilitates mis-application of our laws and regulations and gross miscarriages of justice, and leads to bitter resentment, civil unrest, and – eventually, if not addressed – total loss of respect for/ control by authorities.

    General Aviation is just an extreme example of what can happen when a Regulator ALLOWS its employees to wield its (NOT THEIR!!) great power irresponsibly against a relatively powerless section of a population. Things have even reached the point where it has become “right” to attack a thriving industry’s very foundations, and steal then sell off for profit its hard-accumulated assets. That’s war on THE PEOPLE!! By its own governors!!

    AUSTRALIA itself will be next, if this rot isn’t stopped.

    Historically, “little people” have tended to fight back the only way they know how, with defacto (passive?) revolt, or even outright revolution. Finally, if they’re lucky, someone re-invents the wheel of Laws designed to provide a safe, fair and “enabling” environment for THE PEOPLE to build their future in. Then . . . . . re-enter the pigmys!!

    Which stage is our Industry at? And where to from here?

    Here’s hoping our Regulator will take positive steps to address – systematically/ procedurally and single-mindedly – the human-factor issue of pigmyism within its ranks. They could easily do it, with the help of “Big People” like Clark Butson and Richard Rudd who have proven that they care enough about our Industry to risk their own money and livelihood in this endeavour, and the many “Little People” who don’t have the resources to do so.

    Surely this would be a better course of action than spending taxpayers’ money blocking the truth from coming out, and thereby preventing the issue from being addressed.

    A good start would be to devise (with Industry consultation) a set of “behaviours” that could be used to identify staff exhibiting pigmyism, and provide a basis for their re-education or ejection, as appropriate. Then should come a concerted effort to rid CASA of the culture of covering up pigmyism like a shameful secret. The transparency and fairness this Industry expects of our Regulator needs to be nurtured. It doesn’t happen by accident or default.

    Then good people like Mick English (ie., the majority) would no longer have to publicly ask the Industry not to tar all CASA people with the same brush (see Mick’s post of 31 May). Sorry, Mick, but we all need to take sides in this fight for our country’s way of life. It’s not GA Vs CASA – it’s RIGHT against WRONG – regardless of who you work for. At least you’ve stuck your neck out for the cause. Hopefully, if Clark Butson’s case involves them, others will do the same by refusing to be part of a cover-up. Remember the old adage “All it takes is for good men do nothing . . . “

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Polar Aviation wounded in action – editorial opinion

Posted by:  Posted date: August 03, 2012 | comment : 1

Port Hedland based charter and flying school operator Clark Butson and his company Polar Aviation will not be seeking leave to appeal to the High Court following a Federal Court decision upholding a previous judgement against an application for relief resulting from alleged misfeasance in office and negligence.

The long-running legal battle began in mid-January 2005 when CASA cancelled the company’s Air Operator’s Certificate [‘AOC’], which is required under s27 of the Civil Aviation Act 1988 for the conduct of commercial air operations, and also cancelled Butson’s chief flying instructor and chief pilot approvals for reasons which Polar successfully challenged in the Administrative Appeals Tribunal.

The CASA decisions had the effect of immediately shutting down Polar Aviation’s business.

Melbourne law firm Maitland lawyers entered into negotiations with CASA’s then Area Manager, West Area of CASA, Terry Farquharson, in an attempt to persuade CASA to review its decision and restore the AOC and Butson’s approvals. The AOC was due to expire on 31 January 2005 by effluxion of time, and an application for renewal was pending.

On the expiry date, CASA offered to re-issue the Polar’s AOC for three years if Butson and Polar agreed to enter into an enforceable voluntary undertaking [‘EVU’], and to withdraw their current application to the AAT. Butson considered the conditions sought by CASA objectionable and unwarrantable, and refused them.

The effect of the offer made by CASA was that it was satisfied that the parties at that time met the requirements of section 28 of the Civil Aviation Act for the re-issue of the AOC. Under that section, CASA must issue an AOC if it is satisfied that the applicant meets the requirements specified in the Act. In this case, however, CASA imposed two additional requirements which are not included in s28, before it would re-issue the AOC.

It was not lawful for CASA to withhold the re-issue of the AOC pending polar and Butson’s agreement to the additional conditions which were being imposed by CASA, when they had already met the requirements of s28 which obliged CASA to re-issue the AOC.

When the parties refused to agree to the two additional and unlawful conditions imposed by CASA, CASA then refused to re-issue the AOC. The parties then applied to the Administrative Appeals Tribunal (AAT) for a review of the CASA decisions, and for a stay pending the AAT review.

CASA vigorously opposed the applications at every step of the way. When the Tribunal granted a stay on 11 February 2005, CASA refused to accept the Tribunal’s decision, engaged two senior barristers based in Sydney, Messrs P Brereton SC and I. Harvey, and commenced an appeal against the AAT decision in the Federal Court at Perth, seeking orders that Polar again be permanently shut down.

On 27 July 2005 the Federal Court delivered its judgment and dismissed CASA’s appeal, awarding costs against CASA.

Polar’s and Butson’s battle with CASA to regain their business raged until September 2006 when CASA finally accepted the AAT decisions and restored the certificates.

AAT

The AAT, unlike a Court, has no statutory power to award costs or damages.

In the face of a savage and prolonged attack by CASA which threatened their very existence in business, Clark Butson was left with no alternative but to engage legal representation and defend himself and his company against the prolonged and vitriolic CASA attacks.

At the end of the AAT proceedings, despite the reinstatement of their certificates and the resumption of their business, Polar and Butson were left out of pocket by the huge legal costs.

If the Administrative Appeals Tribunal Act 1975 [AAT Act] was amended to reflect the same provisions as are incorporated in the State equivalent of Administrative Tribunals (see, for example, section 109 of the Victorian Civil and Administrative Tribunal Act 1998 [VCAT], the AAT, in its discretion in appropriate cases, would have the power to award costs in favour of a successful applicant. Some lawyers believes that the provision of such a power to the Commonwealth AAT would act as a much needed deterrent to CASA and other bodies from simply running up huge legal costs in the AAT in matters which might otherwise be more readily settled with bona fide negotiations.

They further suggest that in addition to amending the AAT Act to enable the Tribunal to award costs, consideration should also be given to enable the AAT to award damages in appropriate cases, and that this matter should be brought to the attention of the Shadow attorney-General for consideration and possible recommendations for changes to the AAT Act to widen the powers of the AAT.

Federal Court

It was the absence of power of the AAT to provide any award for legal costs or damages which prompted the parties to seek relief from the Federal Court for damages.

But CASA spent what was, in the estimation of observers, hundreds of thousands of dollars in defending Polar and Butson’s claim for negligence, and steadfastly refused to disclose the documents relating to CASA’s letter of offer of the 3 year AOC dated 31 January 2005, and its subsequent refusal. The process them became bogged down with legalistic trivia.

Regrettably for the applicants, the particular Judge assigned to their case was adverse to the claim from the outset, and startled observers by expressing the opinion that CASA could not be sued for negligence. Her Honour later tempered this expression and attempted to clarify her reasons by attacking the claim as being “too general”, and the claim was struck out, notwithstanding the fact that CASA had not provided discovery and there had been no hearing whatsoever.

At the hearing of the parties’ application for leave to appeal this full Federal Court judgement was or, the judgment and merits of appeal were examined by Justice Middleton, who, when granting leave to appeal, expressed the view that the judge who struck out the statement of claim without proceeding to a hearing had “jumped the gun” and was “premature” in making such an order.

Regrettably, the Full Court simply applied a “cut and paste” of the original judgment.

Legal advice to the parties regarding the merits of an application for special leave to appeal to the High Court were negative, primarily on the basis that the case would not be sufficiently attractive to the current High Court Bench, and an application for special leave would fail.

Clark Butson has, understandably, become very disillusioned with the Australian justice system (or lack of it); and is equally disappointed with the conduct of the Civil Aviation Safety Authority.

 

CASA back in court with Polar

Posted by:  Posted date: October 23, 2011 | comment : 1

The Civil Aviation Safety Authority’s long-standing legal stoush with Port Hedland based Polar Aviation Pty Ltd and its proprietor Clark Butson will be back in the Full Federal Court of Australia in November to hear an appeal against a Federal Court decision handed down on September 30 by Justice Kenny.

In a Statement filed on April 30, 2010, the applicants detailed a range of alleged breaches of CASA’s and its officials’ obligations under the Commonwealth Authorities and Companies Act 1997 (the CAC Act) and other legislation.

Polar had complained that a series of “adverse actions” by CASA began after a heated technical argument between Butson and a CASA official during a routine audit, over operational and flight training issues. They claimed that subsequent alleged harassment included officials’ failure to exercise their powers and functions in accordance with the provisions if the Civil Aviation Act, the Civil Aviation Regulations and Orders, the Civil Aviation Safety Regulations and the CAC Act.

Actions complained of included cancellation of the company’s flying school air operators certificate (AOC) and chief flying instructor approval, and revocation of Mr Butson’s approved testing officer (ATO) approvals.

Officials named as co-respondents were Terence Farquharson, now Deputy Director of CASA, Garry Presneill, formerly a Flying Operations Inspector at the CASA West Office; Robert Collins (now retired), who was then CASA Group General manager of General Aviation Operations; Jim Marcolin, last heard of at CASA Operations in Sydney; Peter John, now CASA’s Eastern Region operations manager and Alan Cook, who has since left CASA

The decision now under appeal dismissed Polar’s claim against CASA and the six officials or former officials seeking damages for alleged contravention of the Civil Aviation Act 1988 and the Commonwealth Companies and Authorities Act 1997, misfeasance in office and negligence, as well as interest and costs.

 

Filling in the information gaps – update

Posted by:  Posted date: June 04, 2012 | comment : 0

In this column we’ll try to clarify any misunderstandings that may cloud the minds of those interested in responses to questions in parliament – either ad hoc questions or those on notice. The most recent analysis will always be at the top of the column. Latest edit is on June 5, 2012

Readers’ contributions are welcome, especially if accompanied by the appropriate Hansard reference.What’s going on down there?

Confusing, isn’t it! Polar update, June 8, 2012

A number of senators are now taking a growing interest in the ongoing legal tussle between the Civil Aviation Safety Authority and Polar Aviation, and Polar’s proprietor Clark Butson. The following exchange from Hansard on May 23 may have failed to leave the senators as well informed as might have been possible:

Senator EGGLESTON: This has gone on for a very long time. There seems to be some quite serious issues about the way CASA has treated Polar Aviation which raise—quite rightly—some issues of public concern about your methodology, the way you operate in dealing with some of these small airlines.

Mr McCormick: The issue with Mr Butson and Polar is, of course, that many times his actions have been struck out by the Federal Court and he has had to file an amended statement of claim on each occasion.

Senator EGGLESTON: His actions were struck out?

Mr McCormick: That is correct.

Senator EGGLESTON: He says that you have ignored Administrative Appeal Tribunal findings, ignored court findings and sought to prolong this case deliberately to exhaust his financial reserves. He says: ‘CASA has in the past treated this matter with total contempt,’ and, ‘It is about time this nonsense stopped and that CASA was made properly accountable for their outrageous behaviour’. He has a different point of view to you, as I said at the last estimates hearings. I will pursue this matter on Mr Butson’s behalf until we get some satisfactory answers.

Mr McCormick: Certainly. But I do reject most of what Mr Butson has said. In actual fact, CASA applied to have a strike-out application in the Federal Court on January 2011. On 30 September 2011 the court struck out the FASC [further amended statement of claim] in its entirety. In summary, the court found the action as pleaded by Polar and Mr Butson either did not properly identify a known cause of action or is otherwise unsustainable.

Senator EGGLESTON: As I said, there is a huge difference of opinion about the way you have treated Polar and Polar’s view of this matter. We will continue to raise these matters in this forum until there is some satisfactory resolution.

Mr McCormick: Certainly, Senator. Mr Butson has filed a notice of appeal to that decision and it was due to be heard approximately now.

Comment

Mr McCormick is certainly right in saying Mr Butson’s understanding of these matters differs markedly from his own. Had he been briefed in closer detail, Mr McCormick might have been able to expand his clarification to cover the following points:

1. The matter began when CASA took administrative action against Polar and Clark which the Administrative Appeals Tribunal set aside.

2. The Commonwealth AAT (unlike its State counterparts) does not have the power to order costs or other remedies other than power to set aside a decision

3. Clark and Polar commenced a proceeding against CASA for damages in the Federal Court. There was a technical issue which required a re-pleading.

4. Justice Kenny struck out the statement of claim which contained the technical issue, but allowed the current statement of claim (No 255 of 2010) to be filed.

5. Justice Kenny later struck out the second statement of claim without hearing evidence at the trial of the proceeding.

6. On granting leave to appeal, Justice Middleton said that a court should not ordinarily strike out a claim without hearing any evidence.

7. Mr McCormick stated to the Senator that the claim had been struck out “many times” but in fact it was struck out twice, and the second occasion is now sent up for appeal.

8. The Federal Court proceeding is complex and voluminous. The costs of CASA would, in the opinion of informed lawyers not involved in the case, far exceed the figure given by Mr McCormick to the Senate.

9. The reasons published by Justice Kenny (which is before the Full Court on Appeal…decision reserved) appear on the Federal Court records. In essence:

10. The first appeal ground states that the learned judge erred in holding that the claim against CASA in negligence had no reasonable prospect of success.

11. The second appeal ground states, among other things, that the learned judge erred in holding that CASA owed no duty of care to Clark and Polar.

12. The process of discovery of documents has not been completed. The matter is much more complex than Mr McCormick’s statement would suggest.

THE LEGAL ISSUE

The primary question is where to draw the line between the duty of a statutory authority which exercises its powers and the common-law rights of the citizen.

One side of the argument is that where a public authority exercises its statutory powers, a potential conflict could arise between the carrying out of the public duty, and acting defensively for fear of an action in negligence being brought.

The other side of the argument is that an improper exercise of statutory powers may unnecessarily cause economic harm to persons subjected to the exercise of power

The High Court in Kirkland-Veestra put it this way:

“Evaluation of the relationship between the holder of the power and the person or persons to whom it is said that a duty of care is owed will require examination of the degree and nature of control exercised over the risk of harm that has eventuated, the degree of vulnerability of those who depend on the proper exercise of the relevant power, and the consistency or otherwise of the asserted duty of care with the terms, scope and purpose of the relevant statute. Other considerations may be relevant”

Senator Eggleston also queried a previous CASA response to the question of its total expenditure on the case; a figure totalling $65,305 in legal fees since the audit that started this chain of events on 14 May 2 006.

The Senator then asked (on notice) how much CASA and the Commonwealth spent with International law firm Blake Dawson, the total cost of legal expenses including all internal and external inputs with respect to legal representation in or out of court, all legal costs engaged to represent CASA in this matter, and what part Commsec has played to date and at what cost. observers believe that those costs are likely to exceed $65,305 by “an appreciable margin.”

We’ve checked with the Senator’s office and he didn’t mean “Commsec,” he meant “Comcover,” the Australian Government’s general insurance fund, overseen by the Department of Finance, which among its functions provides:

  • “a more modern and cost-effective approach to managing insurable risks within the Australian Government,
  • “a form of self-insurance that operates by collecting premiums from participating Fund Members, accumulating reserves, and meeting future losses from those reserves;
  • [the promotion of] “best practice risk management in agencies to improve policy formulation and delivery of Government programs and services, so as to deliver a net benefit to the Budget over the longer term; and
  • “a comprehensive insurance fund to protect Government agencies against the impact of insurable losses.”

Which means that Comcover, among other services and acting as an insurer, provides indemnity for participating government agencies against against costs of various legal processes including court costs and damages. Comcover’s web site is expectably hard to follow  but we’re pretty sure that because the Comcover premiums are paid from CASA’s budget and outgoings against the indemnity bypass it, they don’t rate a mention in Mr McCormick’s response.

So Senator Eggleston’s question was right on the ball and should result in a more meaningful total cost to the government of the Polar affair.

Polar on the ropes? Not yet!

Followers of the long-running legal contest between CASA and Polar Aviation told us they were saddened at a Civil Aviation Safety Authority statement suggesting that the company’s options seemed to have all but run out.

However if you read between the lines their concern wasn’t supported by the facts.

The Senator suggested it might be time to “go to the judges.”

CASA Director John McCormick replied that Mr Butson was “a bit delusional if that is what he thinks the outcome of the court cases has been so far.” He then referred the query to CASA’s chief legal officer Adam Anastasi, who told the Committee: “…..Mr Butson commenced legal proceedings against CASA and various of its officers in the Federal Court of Australia; that is, his action against CASA. In that regard, on 30 September 2011, the Federal Court dismissed his statement of claim in its entirety. Mr Butson and Polar Aviation have now appealed that judgment to the Full Court of the Federal Court of Australia and, as I said, that is his action against CASA. It is a claim for damages against CASA. The court has dismissed his claim—so I will stop there.

If Mr Anastasi hadn’t stopped there, his backgrounding might have been more up to date and more informative.

To ensure Senators have all the facts at their disposal, AviationAdvertiser has checked the current status of the Polar matter.

!t’s also true that Federal Court Justice Kenny struck out the claim against CASA and its Deputy Director Terry Farquharson (and others) on the basis, in broad terms, that CASA and its officers owe no duty of care to the public in the performance of their duties.

However CASA didn’t mention that Polar and Butson successfully applied for leave to appeal against this decision. In granting that application, Justice Middleton said that it was prima facie incorrect for Justice Kenny to have struck out the statement of claim on the basis that she did so without hearing the evidence.

If Polar and Clark are successful in their appeal as is now expected, a statement of claim could be expected to be served on CASA in very short order after the granting of the Appeal.

“CASA will no doubt seek to appeal anything which goes against it – at the expense of the taxpayer, of course,” says a party close to the matter.

The Australian Government Solicitor is acting for CASA in the Polar matter, and Comsure is not mentioned as a party, suggesting that if CASA is found to have a liability, it is uninsured.

In a similar recent decision in the Federal Court in Perth, on a successful application to extend time to file and serve an amended statement of claim against CASA for negligence, Federal Court Justice McKerracher agreed with the statement made by Justice Middleton regarding the liability of CASA for negligence, saying that CASA can be held liable, but the court must hear all of the evidence.

The Polar matter is now moving steadily closer to a final determination.

Related AviationAdvertiser Articles:

 

WA air operator sues CASA and officials

Paul Phelan , 3 May 2010 – 10:20 am4 Comments

Western Australian charter and flying school operator Polar Aviation and its managing director Clark Butson have lodged a Statement of Claim in the Federal Court in Melbourne seeking damages from the Civil Aviation Safety Authority (CASA) and six of its officials and former officials.

In a Statement filed on April 30, the applicants detail a range of alleged breaches of CASA’s and its officials’ obligations under the Commonwealth Authorities and Companies Act 1997 (the CAC Act) and other legislation.

They say the adverse actions began after a heated technical argument between Butson and a CASA official during a routine audit, over operational issues including CASA requirements as to asymmetric flying training procedures. They claim that the subsequent alleged harassment took many forms including officials’ failure to exercise their powers and functions in accordance with the provisions if the Civil Aviation Act, the Civil Aviation Regulations and Orders, the Civil Aviation Safety Regulations and the CAC Act.

Officials named as respondents are Terence Farquharson, now Deputy Director of Aviation Safety, Garry Presneill, formerly a Flying Operations Inspector at the CASA West Office; Robert Collins (now retired), who was then CASA Group General manager of General Aviation Operations; Jim Marcolin, now with CASA Operations in Sydney; Peter John, CASA operations – Eastern; and Alan Cook, former Operations Manager of CASA’s General Aviation Group, who has since left CASA.

Polar Aviation complains that it was flooded with “requests for corrective action” and “show cause notices” from various of the named officials, to all of which it responded, although many of the notices reiterated matters from previous notices that had already been acquitted.

The issue was escalated by a seventh notice on January 14 which cancelled the company’s flying school Air Operator Certificate (AOC) and Butson’s Chief Flying Instructor approval, and revoked his Chief Pilot and approved testing officer (ATO) approvals.

The Statement says: “The Cancellation of Butson’s Chief Pilot Approval and the revocation of Butson’s Chief Flying Instructor Approval immediately prevented Polar Aviation from carrying out any commercial flying operations; immediately prevented the Polar Aviation Flying School from operating; caused the immediate shut down of Polar Aviation’s business; and constituted a breach of the duties set out [elsewhere in the complaint.]

The Statement claims the actions of the respondents:

  • “constitute a persistent attack on Polar Aviation’s capacity to carry out its flying operations;
  • evidence a discriminatory approach to Polar Aviation and Butson;
  • evidence a willingness and intent by the respondents to act outside their authority;
  • evidence a willingness and intent by the respondents to act contrary to the provisions of the Act, and their obligations and duties under the provisions of the CAC Act;
  • evidence an intent by the respondents, acting outside their authority, to injure the applicants or, alternatively, evidence a reckless indifference as to whether such acts outside their authority would or would not injure the applicants.”

The applicants say that Polar’s flying school was out of operation for a two and a half years which adversely affected the business, morale, goodwill and reputation of Polar Air and Butson, resulted in the loss of profitable contracts, and caused lost income to Butson. It also details various actions of the six officials which it asserts comprise misfeasance in public office.

A similar statement has been filed in the Federal Court in Perth by WA pilot Gerald Repacholi and his company Repacholi Aviation, involving some of the Polar Air respondents. At least three other aggrieved aviation businesses are understood to be preparing similar claims.


2 February 2009 — 
There’s Still a Mouse in the House at CASA

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| 4 Comments »

  • Maurice Waugh says: 4 May 2010 at 1:48 pm

    The only reasonable thing for CASA to do is stand down Mr Farquharson until this matter is resolved. He is now in a senior position and must be responsible for his actions.

  • Cpt John says: 6 May 2010 at 12:40 am

    It’s about time those cretins at CASA were held accountable in the courts. A victory for Mr. Butson [and the other complainants with cases pending] will benefit the whole aviation community in Australia; at least it would if CASA finally realises that it simply can not treat people in the way that it has been, and starts working FOR aviation and FOR aviators in Australia – something CASA hasn’t really done for sometime.

    The very best of luck to you Mr. Butson, let’s hope this is the end of a very long and arduous road you have been forced down, and that you get the compensation you so rightly deserve.

  • Polar turned Cathay says: 28 May 2010 at 1:10 am

    I was Fortunate to have been a part of Polar before the Dirty Tactics of CASA had Surfaced.

    I Feel it necessary to Thank Clark and his Professional Operation in which he ran, which took an Inexperienced Aero Club Pilot, who thought he was a Pilot, and within 2 1/2 years, build the foundations of which would allow me to be the best 777 Pilot I could be working for a Reputable Airline in Hong Kong.

    I will not say that my Career was not affected by the dirty tactics of CASA, I would be lying, I have seen how they can Personally Target GA Operators, I believe that their day of Recognising their Bad Judgement is fast Approaching.

    Any Pilot who was fortunate to endure the tough ask of Living Remotely and Flying Remotely, will agree that the foundations of their career were laid here. To Do this in a Safe and Productive Manner is a Bonus.

    I use these on a Daily Basis with Cathay Pacific, It makes me fulfil the Requirements that the Airline Expects of me.

    Clark, you have the support from Many who have worked for you before who have gone on to become the Professional Pilot they dream’t of being, You deserve the truth, you have earn’t it.

    F/O B777

  • Buzz Lightyear says: 6 June 2010 at 3:53 pm

    Dear Mr Casa,

    Comparatively speaking, you might feel that you have an upper hand considering the size of your organisation and the fact that you hold a monopoly in your sector, but if I may offer some advice, considering I have known the plaintiff for a lot of years, he screws back with unwavering tenacity.
    Mr Butson has been in the industry for allot of years while many have come and gone, simply due to the fact that he is in it for the long term. The slow growth of Polar, over the years, can only speak of one thing, his integrity and the importance he places on safety before profit.
    In comparison, it begs me to wonder if QANTAS along with other large airlines in OZ received as much scrutiny, harasment and show cause notices over the past 10 years for all their so called “near misses”?????
    I feel that this time, Mr Casa, you’ve chosen the wrong horse to flog, I hope you have the cahoonies to see it through, as I know he does.

    Stand proud Charlie Bravo and may your anvil cast a shadow over Canberra!!! Good Luck!!!