[Choppagirl]

Part II - Hooded Canary cover-ups & libelous disconnections?  

Reference from Airports thread: 

Aeroplanes can ruin your stock....

Spotlight has teamed up with a group of Essendon Airport DFO retailers to sue the owner of a plane that plunged into the shopping centre, killing five people on board and ruining more than $6 million worth of stock. More here;

https://www.theage.com.au/national/victo...50t3z.html

Spotlight chases crashed DFO plane owner for millions in ruined stock
Tom Cowie

By Tom Cowie
23 January 2019 — 7:40pm


Spotlight has teamed up with a group of Essendon Airport DFO retailers to sue the owner of a plane that plunged into the shopping centre, killing five people on board and ruining more than $6 million worth of stock.

A volley of writs filed in the Supreme Court in the past week continues the legal fallout from the crash, after the families of the four American tourists killed in the disaster said they planned to sue the dead pilot's estate for millions of dollars over the February 2017 tragedy.



Damage to the Spotlight store at DFO after a plane crash that killed all five on board.CREDIT:AAP

Spotlight has joined brands Herringbone, Victoria Station and Oz Design Furniture in suing the Bendigo-based company that owned the plane.

The crash left a gaping hole in the side of the shopping centre and the toll of the damage has now been revealed in court documents.

In its statement of claim, Spotlight said the explosion ignited a fire that activated the sprinkler system, damaging or destroying stock.



The B200 erupts into a huge fireball after crashing into the roof of Essendon Airport DFO.CREDIT:NINE NEWS

The sewing and crafts chain is seeking a further $850,000 for damage to the premises, business interruption and marketing costs to advertise the store's reopening after it was closed for eight months.

The other three companies are suing for loss of profits totalling about $45,000 while their DFO outlets were closed in the immediate aftermath of the crash.

The doomed B200 Super King Air was connected to an opaque web of companies before it crashed, raising concerns about the flight's insurance coverage and who would be held responsible legally.

Separate entities owned the plane, operated it, flew it, maintained it and chartered it.


Analysis of the plane's wreckage from a report by the Australian Transport Safety Bureau.CREDIT:

The plane was registered to Bendigo-located company BB1544 Pty Ltd, which is owned by businessmen Dr Chris Richards and Andrew Hoare.

Dr Richards told The Age he was unaware of the latest legal action and that it was a matter for his insurance company. Previous action brought by the victims' families against the company is understood to have been settled.

The companies based at DFO claim in court documents that a lawyer representing BB1544 Pty Ltd had already admitted liability for loss, damage and destruction caused by the accident.

Under Commonwealth legislation, the owner of the aircraft can be found liable for a crash even if it is not the operator of the flight.


Four victims of the plane crash: Pilot Max Quartermain, and golfers Russell Munsch, Glenn Garland and Greg De Haven.

At the time of the disaster, the flight was operated by Corporate & Leisure Aviation, a separate company in the name of pilot Max Quartermain.

An investigation released by the Australian Transport Safety Bureau in September last year established that pilot error was to blame for the crash, after the plane's directional control system was mistakenly set to veer left before take-off.

A pre-flight checklist by Mr Quartermain should have discovered that the aircraft's rudder trim was in "full nose left position", the bureau found, which resulted in the aircraft plunging into the roof of DFO almost immediately after take-off.

The check should have also identified that the plane's voice recorder wasn't working before the flight.



John Washburn, from Texas, was the fifth victim of the Essendon Airport disaster.CREDIT:FACEBOOK

Mr Quartermain was killed in the crash, along with American tourists Greg De Haven, Glenn Garland, Russell Munsch and John Washburn, who were flying to King Island to play golf.

The widows of the four men said they planned to seek compensation when it was revealed that pilot error was the cause of the crash, with the potential payout running into the millions of dollars.

The law firm representing the four companies from DFO declined to comment while the matter was before the courts.

‘Safe stocktake sales for all’

P2 -WTF? Absolutely despicable, now it becomes plainly obvious why it was the Hooded Canary so blatantly and IMO fraudulently slated all blame for this tragic accident on the pilot...     

P9: Where’s Spotlight's workers safety, evacuation and compensation plan? Where is the Victorian governments warning signs to shoppers? Where are the ever caring politicians looking after their constituents? Where is the Minister responsible for public and aviation safety? Where is the Union who allegedly protect their membership? All at the local trough perhaps? Aye; just a thought, or an opinion – as you like it.  But enough;;;;;;;;;;;;!

Thornbird: The big problem I have with all this is the ATSB report. Not a single shred of hard evidence proving the pilot

"Dunnit", just supposition and innuendo. The ATSB is not supposed to apportion blame, yet here stands the
yellow canary, Hood categorically stating the guilty party is the pilot, no question. Beggars belief.

---

I must admit to being a complete ignoramus on the strange wheelings & dealings and machinations of the aviation insurance industry. However the murky tale as writ by the Age IMO raises more disturbing, suspect disconnections than satisfactory, sensible and factual answers.

First QON: Why is a multi-national retail group trying to recover compensation for lost, fire damaged stock from the aircraft owners? Wouldn't Spotlight have an insurance policy that covers the loss of stock through fire related damage, including the fire sprinkler system?

Or; wouldn't the Essendon DFO owners and managers of the complex have to have insurance coverage for the loss of stock for all it's retail leases?

Hmmm....so dodgy arrangements perhaps? This led me to Wikipedia...  

Ref (my bold): 

Business model

Its model is to find cheap land, build a cheap but air-conditioned shopping mall.[1]

The Direct Factory Outlet retail chain is owned by the privately owned Austexx Group, led by David Goldberger and David Weiland with their first centre opened at Moorabbin Airport(Cheltenham) in 1997.[2] Former Australian Competition & Consumer Commission chief Graeme Samuel holds a $50 million interest in Austexx through a blind trust.[3] Valued at A$1.5 billion, in early 2010 the business was put up for sale with a number of retail investment funds expressing interest.[4]

DFO centres have traditionally been located around airports: a side effect of the Airports Act of 1996, the Commonwealth Government has planning control over the land, meaning state planning legislation can be bypassed by developers.[5] In addition the property developer is able to exploit the cost difference between retail and industrial rents, gives outlet centre operators a distinct advantage over traditional shopping centres. A survey by Melbourne newspaper The Age in 2007 found that in all three DFO-owned centres, most shops carried at least some full-price, current-season stock, available at normal shopping centres.[6] By 2008 five legal challenges to DFO developments have been made by competing retail developers and the Shopping Centre Council of Australia, all being unsuccessful.[5]

On 16 August 2010, lead bank Suncorp-Metway, along with St George Bank, National Australia Bank and Lloyds Banking Group, issued a notice to parent company Austexx demanding repayment within 24 hours of the A$450 million they are owed.[7] The South Wharf centre was under a A$500 million debt, with work on completing the centre stopped after workers placed bans over non-payment. Parent company Austexx is understood to have total debts of A$1.2 billion, with the four relatively successful DFO sites used as cross-collateral for bank-funded expansion into five other less successful locations (Canberra, Cairns and Hobart). The group of banks appointed insolvency specialists KordaMentha as advisers, with the entire group facing receivership.[8] Negotiations continued until a deal was struck on Thursday 19 August, the four banks extending their funding to allow the South Wharf development to be completed. The ten DFO shopping complexes will then be sold off separately to repay the $1 billion owed to the banks.[3] The banks hope to recoup most or all of the money they are owed by avoiding a 'fire sale' of assets, but neither Austexx founders or other investors are expected to be repaid until the bank debts are settled.[3]

   
Hmm....could it be that the DFO (failed) business model also included skimping on such things as property and or 2nd party asset insurance?

What about 3rd party insurance? Which should, in the normal course of events, have  included 3rd party public and employee liability for the very real risk of an aircraft crashing into the DFO buildings?  

"..Under Commonwealth legislation, the owner of the aircraft can be found liable for a crash even if it is not the operator of the flight..."


 - I think the Commonwealth legislation referred to is this: Damage by Aircraft Act 1999  https://www.legislation.gov.au/Details/C2013C00130

11  Recovery of damages without proof of intention, negligence etc.

                   Damages in respect of an injury, loss, damage or destruction of the kind to which section 10 applies are recoverable in an action in a court of competent jurisdiction in Australian territory against all or any of the persons who are jointly and severally liable under that section in respect of the injury, loss, damage or destruction without proof of intention, negligence or other cause of action, as if the injury, loss, damage or destruction had been caused by the wilful act, negligence or default of the defendant or defendants.

P2 comment: In light of the information provided so far by the Age and in regards to the murky financial arrangements obviously in play under the DFO 'business model', a qualified legal interpretation of the possible implications of section 11A would be interesting -   

11A  Contributory negligence
             (1)  If, in an action under section 11, a defendant proves that the injury, loss, damage or destruction was caused by, or contributed to by, the negligence of the person (the sufferer) in respect of whom the injury, loss, damage or destruction was suffered, the damages recoverable must be assessed in accordance with this section.
             (2)  The court must determine the damages that would have been recoverable if there had been no negligence on the part of the sufferer.
             (3)  The damages determined under subsection (2) must be reduced to the extent the court thinks just and equitable having regard to the share of the sufferer in the responsibility for the injury, loss, damage or destruction.
             (4)  If any case to which subsection (1) applies is tried with a jury, the jury must determine the damages referred to in subsection (2) and the amount of the reduction under subsection (3).

However either way you put it the problematic and disturbing real implications for any aircraft operator, pilot or owner operating (or intending to operate) at any Federally leased airport that has a DFO complex, or similar commercial retail arrangement, within the boundaries of the Airport leased property are enormous if the legal liability case rules in favour of the DFO outlet retailers claims....    

This brings me to another interesting juxtaposition -   

Reference: Not a serious safety concern – Indeed: Part II

Next to step up to the plate on Airport safety was McComic and his motley crew of Iron Ring trough feeders:

Senator FAWCETT: My question, though, is: what framework is in place? If an operator is concerned with something—one of those slices of Swiss cheese in the James Reason model—that is impacting his safety, what avenue do they have to come to you, as the regulator, and to have you enforce, from the government's perspective, the intent statement of the white paper on aviation, the NASAG intent statement, the terms of the lease or the deed that transferred ownership of airfields to local government?


Mr McCormick : Some of those matters, such as the NASAG and those other issues that you raise on the airfield operation or who owns the airfield et cetera, of course are matters of government policy and rightly fit with the department. Off-airfield development is a similar thing, where, again, CASA has a limited role to play. Whether we should have a larger role or not is not a question for me to decide; but, as far as our available powers go, there are numerous heads of power where people can come to us directly, or write to us or email us or whatever, and we will take the issue on its face value.

Senator FAWCETT: What I am hearing there is that there are examples where there is a legitimate safety concern and you do not currently have a head of power that will enable you to act.

Mr McCormick : I do not think that is correct. I think we do have adequate heads of power, except for the off-airfield development. We have section 92 of the Civil Aviation Regulations 1988, where we can give directions to airfield operators, and that is not restricted to certified and registered aerodromes. P2 comment - Remember that by definition the YMEN DFO complex is not an off-airfield development.

Ah yes the old buck passing exercise starts up once again...  

Note how Dr A passes across the CASR section 92 reference? As a head of power I am not sure how much teeth it has but nonetheless for those interested here it is:

CIVIL AVIATION REGULATIONS 1988 - REG 92
Use of aerodromes
             (1)  A person must not land an aircraft on, or engage in conduct that causes an aircraft to take off from, a place that does not satisfy one or more of the following requirements:
                     (a)  the place is an aerodrome established under the Air Navigation Regulations;
                     (b)  the use of the place as an aerodrome is authorised by a certificate granted, or registration, under Part 139 of CASR;
                     ©  the place is an aerodrome for which an arrangement under section 20 of the Act is in force and the use of the aerodrome by aircraft engaged in civil air navigation is authorised by CASA under that section;
                     (d)  the place (not being a place referred to in paragraph (a), (b) or ©) is suitable for use as an aerodrome for the purposes of the landing and taking-off of aircraft;
and, having regard to all the circumstances of the proposed landing or take-off (including the prevailing weather conditions), the aircraft can land at, or take-off from, the place in safety.
Penalty:  25 penalty units.
             (2)   CASA may, in relation to an aerodrome, issue directions relating to the safety of air navigation.
             (3)  A person must not contravene a direction.
Penalty:  25 penalty units.
             (4)  An offence against subregulation (1) or (3) is an offence of strict liability.

Q/ I wonder which Act (i.e the Civil Aviation Act or the Damage By Aircraft Act) has a greater Head of Power - 



MTF...P2 

So many things to make me laugh here. One point made which doesn't seem to get a huge amount of attention, "Where is the union which is supposed to protect its members?" Hahahah! They are just as much of a joke as ATSB and CASA. Quite happy to take your money for 40 years then tell you to bugger off if your case doesn't fit into their neat, little criteria.

P7 - First post Choc Frog awarded. Cheers.