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CASA cites Polar judgement in Repacholi case

Posted by:  Posted date: August 13, 2012 | comment : 0

The Civil Aviation Safety Authority (through its expensive law firm Ashurst, formerly Blake Dawson) today brought an application in the Federal Court at Perth to strike out the claim by WA agricultural and seaplane operator Gerald Repacholi against CASA for negligence, based upon the decision in the recent decision against Polar Aviation in its damages claim against CASA..

The Sydney barrister hired by CASA for the application, brought under s31A of the Federal Court Act, argued inter alia:

“As found by the Court in Polar, a duty to take reasonable care to exercise statutory powers having regard to the interests of the person regulated would necessarily impinge on the statutory duty to exercise the powers by reference to safety considerations”

“There can be no duty of care imposed on CASA to have regard to the economic interests of the Applicants…”


In effect, CASA’s lawyer is claiming that its officers can do what they like to whomever they like, using the cloak of respectability of “safety” under s9A (1) of the Civil Aviation Act, with impunity and at the discretion and subjective opinions of the officials concerned, with a total disregard to any person’s personal or business rights, no matter how trivial (or negligently false) the alleged “safety” issue might be, and no matter how devastating the effect any such heavy handed action might have on an individual or business.

Is this the way any industry should be regulated?

Many will recall (then) Minister John Anderson’s Second Reading speech at the introduction of the bill to enshrine the draconian section 30DC of the Civil Aviation Act into law. This Section enables CASA to suspend immediately a certificate/approval at will, based on an allegation of “serious & imminent risk to safety” and which refers the matter to the Federal Court to rubber stamp the application.” The Minister said the Bill was intended to “address the industry concerns that somehow CASA was judge, jury and executioner”.

Some victims believe the Minister overlooked several of CASA’s roles in the process. In several cases, they observe, CASA appears to take the roles of informant, investigator, prosecution witness, prosecutor, judge, jury, court of appeal, and executioner.

It would be interesting to test how CASA’s argument would stand up in a few other cases we have analysed, particularly where the actions of a CASA official have been demonstrably safety-negative, and we’ll be following that agenda in more detail over the coming weeks.

Meanwhile it’s valuable to weigh recent and not-so-recent events against the Commonwealth Attorney General’s model litigant directions, unless there’s a clause somewhere that exempts CASA as a result of the Polar findings.

If you’re interested in the future of aviation in Australia, the document published below is part of a detailed document titled Legal Services Directions, issued by the Attorney-General pursuant to section 55ZF of the Judiciary Act 1903, with effect from 1 September 1999.

The Australian National Audit Office, perhaps supported by the Law Reform Commission, could well be tasked to evaluate CASA’s performance against the standards the A-G sets out.

Go on, it’s an informative read.

Directions on the Commonwealth’s obligation to act as a model litigant

1.   Consistently with the Attorney-General’s responsibility for the maintenance of proper standards in litigation, the Commonwealth and its agencies must behave as a model litigant in the conduct of litigation.

Nature of the obligation

2.   The obligation requires that the Commonwealth and its agencies act honestly and fairly in handling claims and litigation brought by or against the Commonwealth or an agency by:

a)      dealing with claims promptly and not causing unnecessary delay in the handling of claims and litigation,

b)      paying legitimate claims without litigation, including making partial settlements of claims or interim payments, where it is clear that liability is at least as much as the amount to be paid,

c)      acting consistently in the handling of claims and litigation,

d)      endeavouring to avoid litigation, wherever possible,

e)      where it is not possible to avoid litigation, keeping the costs of litigation to a minimum, including by:

i    not requiring the other party to prove a matter which the Commonwealth or               the agency knows to be true, and

ii.       not contesting liability if the Commonwealth or the agency knows that the dispute is really about quantum,

f)       not taking advantage of a claimant who lacks the resources to litigate a legitimate claim,

g)     not relying on technical defences unless the Commonwealth’s or the agency’s interests would be prejudiced by the failure to comply with a particular requirement,

h)      not undertaking and pursuing appeals unless the Commonwealth or the agency believes that it has reasonable prospects for success or the appeal is otherwise justified in the public interest, and

i)        apologising where the Commonwealth or the agency is aware that it or its lawyers have acted wrongfully or improperly.

NOTES:   1    The obligation applies to litigation (including before courts, tribunals, inquiries, and in arbitration and other alternative dispute resolution processes) involving Commonwealth Departments and agencies, as well as Ministers and officers where the Commonwealth provides a full indemnity in respect of an action for damages brought against them personally. Ensuring compliance with the obligation is primarily the responsibility of the agency which has responsibility for the litigation. In addition, lawyers engaged in such litigation, whether Australian Government Solicitor, in-house or private, will need to act in accordance with the obligation and to assist their client agency to do so.

2    In essence, being a model litigant requires that the Commonwealth and its agencies, as parties to litigation, act with complete propriety, fairly and in accordance with the highest professional standards. The expectation that the Commonwealth and its agencies will act as a model litigant has been recognised by the Courts. See, for example, Melbourne Steamship Limited v Moorhead (1912) 15 CLR 133 at 342; Kenny v State of South Australia (1987) 46 SASR 268 at 273; Yong Jun Qin v The Minister for Immigration and Ethnic Affairs (1997) 75 FCR 155.

3.   The obligation to act as a model litigant may require more than merely acting honestly and in accordance with the law and court rules. It also goes beyond the requirement for lawyers to act in accordance with their ethical obligations.

4.   The obligation does not prevent the Commonwealth and its agencies from acting firmly and properly to protect their interests. It does not therefore preclude all legitimate steps being taken to pursue claims by the Commonwealth and its agencies and testing or defending claims against them. The commencement of an appeal may be justified in the public interest where it is necessary to avoid prejudice to the interests of the Commonwealth or an agency pending the receipt or proper consideration of legal advice, provided that a decision whether to continue the appeal is made as soon as practicable

5.   The obligation does not prevent the Commonwealth from enforcing costs orders or seeking to recover its costs.

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