[Peetwo]

CASA non-liability rule 101: Always blame the 'other guy' -    

Reference:

And so it begins:-

A while back I mentioned the complex, powerful ‘obligations’ placed on the registered owner of an aircraft and the registered ‘operator’. Curious, I kept a weather eye on ‘proceedings’. Looks like the trail to the AATA is running hot with our old mate Egon Fice as umpire for CASA v Owner/Operator word fest. The transcript and decision provide a classic example of the complexities of aviation law, the contradictions and the CASA use of the that situation.

The nailing down of the ‘legal’ operator and registered owner becomes important when the blame game begins, as it must when insurance, coroner, operator, owner and CASA meet to determine who did what, to whom and how much it’s all going to cost. Reading through the Fice ruling one gets the feeling that there is much more to follow and this is only the opening gambit.  

1. On 16 March 2017 Australian Corporate Jet Centres Pty Ltd (ACJC) lodged an application with the Tribunal seeking review of a decision made by the Civil Aviation Safety Authority (CASA) on 16 February 2017 which it claimed it received on 22 February 2017. CASA’s decision was to amend the Australian Civil Aircraft Register (the Register) to show that ACJC was the Registered Operator of a Raytheon Aircraft Company B 200 (King Air) aircraft registration VH-ZCR. That aircraft was destroyed in an accident at Essendon airport on 21 February 2017 at about 9 a.m.

2. In its application, ACJC claimed that it had no involvement in the operation of the flight on 21 February 2017. The charter was not booked through ACJC; it was not conducted under ACJC’s Air Operator Certificate (AOC); and ACJC did not provide the flight crew or prepare the aircraft for flight. Furthermore, ACJC claimed that at no stage prior to the accident did CASA advise ACJC that it was considering reversing a prior refusal to register ACJC as the Registered Operator.

3. There being a question about the jurisdiction of the Tribunal to review either the decision made by CASA on 16 February 2017 or earlier decisions made by CASA following the lodgement of a Notice of Appointment/Cancellation of Registered Operator by the then current Registration Holder, BB1544 Pty Ltd, I need to briefly set out the events leading to that decision.

Students of matters aeronautical will appreciate the positioning and pre game manoeuvring as the denizens of Sleepy Hollow begin preparations for the match. But, selecting the pre game sacrifice always comes first. However:-

PRACTICE AND PROCEDURE – JURISDICTION – application for review of decision to amend Australian Civil Aircraft Register to show that applicant was Registered Operator of aircraft – applicant concedes that there is no jurisdiction to review decision as expressed in application for review – application for review of earlier refusal to register applicant as Registered Operator raised at jurisdiction hearing – whether a ‘reviewable decision’ within the definition in the Civil Aviation Act – refusal to amend Register cannot be regarded as refusal to grant or issue certificate – refusal to process application and amend Register does not constitute a variation of an authorisation – matter dismissed for want of jurisdiction.

Toot toot. (Find a cuppa and a quiet corner, messy, but worth it).

PS. Just noted the inimitable 'Short-Field'  trading on the UP boards is also 'on the ball'. Choc Frog.

PPS. As requested – and to save repeating myself, links : One - Two - Three try to expand on the CASA position as explained to the Senate RRAT committee at the last estimates hearing. Only IMO of course; but FWIW,…….

Australian Corporate Jet Centres Pty Ltd and  Civil Aviation Safety Authority  [2017] AATA 403 (31 March 2017):

EVENTS LEADING TO THE REQUEST TO CHANGE THE REGISTERED OPERATOR

4. I had in evidence a statement made on 27 March 2017 by Mr Jurgen Schob, the Registrar employed by CASA responsible for the Register. Attached to that statement were documents which support what Mr Schob claimed were the relevant dates and events.

5. On 15 December 2016 CASA received a Form 032 (Notice of Appointment/Cancellation of Registered Operator) for aircraft VH-ZCR by email from the Registration Holder, BB 1544 Pty Ltd, stating that the appointment of MyJet Aviation Pty Ltd, the then Registered Operator, was cancelled with effect from 6 December 2016. That form also indicated that the Registration Holder (Mr Chris Richards) was cancelling the appointment of the current Registered Operator effective from 15 December 2016. The second part of that form, which deals with the appointment of a Registered Operator, was completed and signed by Mr Sam Iliades who described himself as the CEO of ACJC. The application was to appoint ACJC as the Registered Operator of VH-ZCR. The appointment application was also signed by Mr Richards in his capacity as the then Registration Holder. It is also dated 15 December 2016. The final page of Form 032 deals with Application Fees. The fee in this case amounted to $65 and Mr Richards provided credit card details to affect that payment.

6. In an email dated 16 December 2016 sent to MyJet Charter, Mr Shay Bonfini, a Client Service Centre Officer with CASA referred to the appointment/cancellation of the Registered Operator for aircraft VH-ZCR stating that the credit card payment was unable to be processed due to an error, said to be ‘Card expired’. Mr Bonfini attached a new payment page (page 6 of 6 on Form 032) requesting correct credit card details and that the person dealing with the email attach a scanned copy of the payment page when completed along with the correct details. Mr Bonfini also stated that the email was required by no later than mid-day on 20 December 2016, otherwise:

If I haven’t received the payment page or still can’t process the payment by noon Tuesday, 20th of December 2016, your application will not be accepted and will be returned to you.

7.In his statement Mr Schob said that CASA attempted to contact BB 1544 Pty Ltd on a landline and mobile number in an attempt to contact Mr Richards. Those attempts were not successful.

8.When no response was received from BB 1544 Pty Ltd, on 21 December 2016 Mr Bonfini sent another email to MyJet Charter attaching a refusal letter regarding the appointment or cancellation of the Registered Operator for aircraft VH-ZCR. This letter was not sent to ACJC.

9.Relevantly, that letter referred to Form 032 and stated:

...The notification has been assessed against the requirements, within the limitations of the documentation submitted. This assessment has found that the notification failed to meet the regulatory requirements and notification has been refused. Details of the problems can be found below.

Please note that you will need to lodge a new notification and included new payment before this matter can be considered further. CASA is required to recover costs for providing regulatory services and the fees charged are for processing and consideration of the notification, not for a successful outcome.
Problems with notification

•Payment has not been received.

On 16 December 2016 you were sent an email requesting that an amended payment page be submitted by 12pm 20th of December 2016.
Unfortunately CASA did not receive an amended payment page within the given timeframe, as a result your application has been closed and the assessment has not been conducted.

Please re-submit the application in full and include a new payment page.

10.Mr Iliades sent an email to CASA, Aircraft Registration, on 30 January 2017 seeking an update on the status of the registered operator for B200 VH-ZCR to Australian Corporate Jet Centres. That email was copied to a Mr Andrew Gibb. 

10.
11.CASA (Mr Karl Kumar) responded to Mr Iliades in an email dated 30 January 2017 stating:

I didn’t get what you meant by the below email. Have you put in an application for change of operator?

12.Mr Iliades responded on the same day confirming that he had, referring to ACJC. That statement was of course incorrect, the application form having been lodged by the Registration Holder. Mr Kumar responded to that email again on 30 January 2017 stating:

The only application I see was in December 2016, which was unsuccessful and sent back. The attached letter was emailed to ‘marty@myjetcharter.com.au’ on 21/12/2016.
13.On 31 January 2017 Mr Iliades sent an email to Aircraft Registration, stating the following:

Please see the attached application for change of operator for VH-ZCR as well as response from aircraft registrations, it looks like you have lost it somewhere in your system. Can we now please expedite this application.

14. That email also referred to the Notice of Appointment/Cancellation of Registered Operator which was emailed to CASA on 15 December 2016 asking whether anything needed to be changed. It also stated that a confirmation email from CASA regarding that application had been received. That confirmation letter had in fact been sent to Ms Clare Banfield of MyJet Aviation Pty Ltd. On 6 February 2017 CASA received the correct credit card details over the telephone from Ms Banfield and processed the application form.

15. On 16 February 2017 CASA amended the Register recording that ACJC was now the Registered Operator of aircraft VH-ZCR. On that day, CASA also sent letters to BB 1544 Pty Ltd and ACJC informing both the Registration Holder and the new Registered Operator that the Register had been amended in accordance with their request. That letter reminded the new Registered Operator, ACJC, of its obligations regarding the display of nationality and registration marks and aircraft registration and identification plates. It also stated:

The registered operator is responsible for the airworthiness and maintenance control of the aircraft. Essentially, this means that the registered operator is required to:

•Ensure that the aircraft is maintained in an airworthy and serviceable condition so that when it is operated, it is done safely. These responsibilities include making sure all the equipment needed for the flight is serviceable, that the aircraft has been inspected by the correct people and that the required maintenance has been completed and signed for.

•Have the aircraft maintained in accordance with a set of procedures and requirements commonly referred to as the Aircraft Maintenance Program (AMP) and to keep records of the work associated with these procedures and requirements. In addition, the registered operator should review the AMP regularly to make sure it is still effective for the aircraft and reflects any changes that have been made to the aircraft, the way the aircraft is operated or even where the aircraft is located. The registered operator can perform these functions or contract someone else to do so on their behalf.

16.On 20 February 2017 Mr Iliades sent an email to CASA, Aircraft Registration in which he stated:

Can you please tell me the status of the registered operator application for
VH-ZCR. I understand the wrong expiry date was provided which was rectified over the phone but I have [not] heard of anything since??

17.CASA responded by email on 21 February 2017 at 12:01 stating:

Your application was actioned on 16/02/2017. It should be on its way in the mail.

18.By that time of course, VH-ZCR had been destroyed in an accident at around 9 a.m. Mr Iliades sent a responding email at 1:27 PM to CASA stating:

Unfortunately this aircraft was destroyed in an accident today which you may have seen in the media, the plane was flown by Max Quatermaine [sic] under his AOC – Corporate and Leisure Travel and had nothing to do with our company. Sad news all round but we won’t be requiring the certificate.

Update - Via 'The Age' tonight  

Company told hours after Essendon DFO crash that plane was in its name

• Tom Cowie
  
• Liam Mannix
  

The aviation company potentially facing a multimillion-dollar lawsuit over the Essendon DFO disaster was told three hours after the crash that the plane involved had been registered in its name.

As the wreckage smouldered at 12.01pm on February 21, and it was confirmed that five lives had been lost, Australian Corporate Jet Centres received an email from the aviation authority confirming it was the plane's registered operator.

The company's CEO replied at 1.27pm: "Unfortunately this aircraft was destroyed in an accident today which you may have seen in the media, the plane was flown by Max Quatermaine [sic] under his AOC – Corporate and Leisure Travel and had nothing to do with our company. Sad news all round but we won't be requiring the certificate."

With the threat of lawsuits and insurance payouts mounting over Victoria's worst aviation disaster in 30 years, the Essendon-based company has sought to have its registration overturned.

Firefighters at the scene of the plane crash at the Essendon DFO.  Photo: Jason South  

Australian Corporate Jet Centres claims it was not responsible for the plane due to an administrative bungle over a $65 application fee in December.

Civil Aviation Safety Authority records show Australian Corporate Jet Centres became the registered operator of VH-ZCR on February 16, just five days before it went down.

Emails published in a finding by the Commonwealth's Administrative Appeals Tribunal show the company did not find out its application to transfer registration had been approved until midday on February 21 – three hours after the crash at 8.58am.

"Your application was actioned ... it should be on its way in the mail," CASA wrote in the email sent at 12.01pm.

The devastation caused by the crash. Photo: Seven News  

With the media spotlight intensifying and emergency services still on the scene, the company's CEO, Sam Iliades, replied to CASA telling it that the plane had gone down. The plane was being flown by pilot Max Quartermain under his air operator certificate, he wrote.

The company continues to maintain that position: "It was not our air operator's certificate, not our client, not our revenue, not our pilot," Australian Corporate Jet Centres said in a statement on Monday.

Smoke rises from the scene. Photo: Nine News  

Fairfax Media understands just who was legally responsible for the flight is still being investigated.

The Australian Transport Safety Bureau has been sifting through the wreckage of the plane, trying to piece together what caused it to go down shortly after take-off.


 Photo: ATSB
 
A recent preliminary report found that both engines and propellers appeared to be in working order at the time of the flight and that there was no evidence of mechanical failure.

Australian Corporate Jet Centres recently applied to the Administrative Appeals Tribunal to have the CASA registration decision overturned but the matter was dismissed due to a lack of jurisdiction.

The matter was taken to the tribunal after the company originally had its application to become the plane's operator cancelled in late December because incorrect credit card details were used to pay the $65 application fee.

According to emails published in the tribunal finding, the company was not informed its application had been cancelled.

On January 30 the company emailed the regulator to find out what the delay was, only to be told the transfer had not gone through.

A new application was submitted and approved just over two weeks later.

CASA updated its register on February 16, sending out a letter to Australian Corporate Jet Centres and the previous registered operator, MyJet Aviation, informing them of the change.

The letter also contained a reminder of the operator's obligations.

These included the display of nationality and registration marks, as well as responsibility for airworthiness and maintenance. 

When the letter hadn't arrived by February 20, Mr Iliades sent another email asking CASA about the "status of the registered operator application".

The response came a day later, when the plane had already crashed.

Any lawsuit could run into tens of millions of dollars, with the family of the passengers plus the hundreds of people who witnessed the crash all having a potential claim. At least three law firms have been retained, Fairfax understands.

"[The case] could generate a very large lawsuit for the entity that is found to be responsible under the law of negligence for the air crash by a court," Shine Lawyers aviation department manager Thomas Janson said.

Negligence is yet to be proved in the case, as investigators continue to work through the plane's wreckage. But if it could be proved, hundreds of bystanders who saw the flight go down might be able to claim for nervous shock, Mr Janson said.

MTF...P2