[Peetwo]

BRM Aero & GlenB embuggerance update -    

Via Oz Flying:

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CASA referred to Commonwealth Ombudsman over Bristell
26 October 2020
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The controversy over CASA's handling of the Bristell LSA stall/spin issue has resulted in the matter being referred to the Commonwealth Ombudsman.


Anderson Aviation, Australian agent for the Bristell, made the announcement to all Bristell owners today.
CASA currently has a ban in place to prevent the aircraft from being used for intentional stalls over fears that the aircraft doesn't comply with the standards, something manufacturer BRM Aero has consistently disputed.

"We do understand the frustrations for some of you who have your aircraft in commercial operations and the limitations this has caused in the operation of your aircraft," CEO Brett  Anderson said in the letter issued on behalf of BRM.

"We again wish to reassure you that the Bristell does comply in respect of stall/spin performance, it has always complied, and it is a safe and reliable, quality aircraft.

"We can now report to you that the whole matter has been referred to the Commonwealth Ombudsman for investigation and consideration with respect to the conduct of CASA in dealing with BRM Aero and Anderson Aviation in respect of the Bristell.

"We await a response from the Ombudsman. Given the extensive and detailed documentation that has been provided to the Ombudsman, we understand that it will take some time for the matter to be investigated thoroughly, but a recent communication with the Ombudsman indicated they hope to have an initial response to us by the end of this month.

"We have been working with BRM Aero on the way forward, in particular with the spin testing again of the Bristell to prove to CASA that they are wrong in what they have done; however, the factory was already heavily committed to completing the certification of the B23 Bristell.

"This is now complete where it passed with flying colours and that is fantastic news as it once again proves CASA wrong yet again when they stated that BRM Aero were ‘willing but not capable’ in the April 2020 teleconference."

CASA applied the stall ban in July this year, stating that they had not received "sufficient assurance from the manufacturer as to compliance with the relevant safety standards."

BRM, through Anderson Aviation and consultant Edge Aerospace, has insisted that it has provided CASA with all necessary proof that stall/spin testing shows that the aircraft complies with the standard.

"Currently there are matters related to our issue that we believe are serious that we have been investigating that will come to the notice of the public that will assist greatly in providing evidence of this unjustified attack on the Bristell aircraft," Anderson said.

"We are committed to supporting you all and the Bristell aircraft and intend to continue the campaign until we get action regarding the removal of these operating limitations."

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Next via AP email chain:

To the relevant person within the Attorney Generals Department

I want to lodge allegations against the following CASA Employees for their part in unlawful conduct that has bought detriment to myself and other Entities.  

Their conduct has lead to the loss of my two businesses. Melbourne Flight Training a flying school, and APTA a business offering contracted safety and compliance service to smaller flight training operators.

The Commonwealth Ombudsman has completed Phase One of his investigation into this matter, and I am fully satisfied that his Report supports my contention that their misconduct has caused detriment. I am also fully satisfied that Phase Two when completed will highlight further unlawful conduct by CASA personnel.


The allegations are made against

• Mr. Shane Carmody- CEO of the Civil Aviation Safety Authority (CASA)
  
• Mr. Jonathan Aleck-CASA Executive Manager, Legal, International, and Regulatory Affairs.
  
• Mr. Graeme Crawford- CASA Executive Manager of the Aviation Group
  
• Mr. Craig Martin- CASA Region Manager, Southern Region.
  
• Mr. Anthony Mathews- Chair of the Board of CASA.
  

I am alleging that these gentlemen as a collective, have 

• Endeavored to facilitate a cover-up of this matter.
  
• Have consistently demonstrated a willingness to deliberately frustrate a fair and lawful outcome by breaching procedures they are obligated to comply with.
  
• Have acted unlawfully.
  
• Have acted for reasons other than safety. 
  
• Breached obligations placed on them by the Australian Public Service Code of Conduct and the Australian Public Services Values, CASA Enforcement Procedures as stipulated in their own manuals, breached the Minister's Statement of Expectations, obligations placed on them by the PGPA Act, and obligations placed on them by Administrative Law, Procedural Fairness, and Natural Justice.
  
• Misled Senator Susan McDonald in the Senate Estimates Committee
  
• Attempted to deliberately mislead the Commonwealth Ombudsman in his investigation with the unsuccessful intention of altering the outcome.
  

Whilst, not a point of law they have clearly breached the ethical and moral obligations placed on them by CASAs own Regulatory Philosophy.

A full investigation into the conduct of these personnel will bring clarity to the matter. I have raised allegations against these individuals publicly as I have no other choice to defend my reputation.  I also believe that their conduct has impacted negatively and demonstrably on aviation safety. Because of the substantive nature of the allegations that I make against them, I believe they are fully entitled to a full and comprehensive investigation.

I await your response on how i should proceed with this matter.

Respectfully

Glen Buckley

Plus:

Dear Mr. Shane Carmody (CEO of CASA), Mr. Jonathan Aleck (CASA Executive Manager Legal International and Regulatory Affairs), Mr Graeme Crawford (CASA Executive Manager Aviation Group, and Mr. Anthony Mathews (Chair of the Board of CASA).

As you are aware I have made allegations that CASA has  acted to mislead Senator Susan McDonald during the Senate Estimates, and has also provided misleading information to the Commonwealth Ombudsman's Office, with the intention of potentially perverting the outcome of his findings.

I felt it timely to draw your attention to your obligations in accordance with Legal Services Directions 2005. I particularly draw your attention to the bolded paragraph

"Introduction

On 22 June 2012, the Full Federal Court handed down its decision in LVR (WA) Pty Ltd v Administrative Appeals Tribunal which reinforces the overarching obligation of Australian Government Agencies and their legal representatives to act as model litigants in accordance with the Legal Services Directions 2005. This decision illustrates the supremacy of the model litigant obligation which may, in certain circumstances, extend further than merely acting honestly, ethically, legally and in accordance with court rules.

Background

On 30 July 2010, the Administrative Appeals Tribunal (the Tribunal) dismissed an application for merits review made by LVR (WA) Pty Ltd (the Applicant) in relation to a decision of the Commissioner of Taxation (the Commissioner). In unique circumstances, the Tribunal dismissed the application without conducting a review of the decision on the basis that the Applicant had failed to comply with a procedural direction made by the Tribunal relating to the filing and serving of evidence.

The Tribunal's decision to dismiss the application for review was the subject of a separate dismissal hearing (the Dismissal Hearing), in anticipation of which the Tribunal had made directions for further evidence to be filed in relation to the non-compliance with its earlier directions in the main proceedings. The Applicant filed and served the affidavit of Mr Schokker (the Schokker Affidavit) only three days before the Dismissal Hearing and some seven weeks after it was directed to do so. The Schokker Affidavit responded to the evidence filed by the Commissioner and addressed the applicant's non-compliance with the directions made by the Tribunal in the main proceedings.

Save for a small number of paragraphs, the published reasons of the Tribunal relating to its decision to dismiss the Applicant's application were copied verbatim from the Commissioner's written submissions (the Submissions) without attribution. Because of the Applicant's late service of the Schokker Affidavit, only two paragraphs of the Submissions referred to the Schokker Affidavit and those paragraphs were not reproduced in the Tribunal's reasons.
The decision at first instance

The Applicant subsequently brought an action in the Federal Court seeking judicial review of the decision of the Tribunal to dismiss the application on the basis that the Tribunal had failed to take into account the responsive content of the Schokker Affidavit. In dismissing the application for judicial review, Gilmour J relied heavily upon the Tribunal's reasons and found that the mere absence of any reference to the Schokker Affidavit in the Tribunal's reasons did not indicate that the Tribunal had failed to take into account the Schokker Affidavit when making its decision. Critically, the fact that the Tribunal's reasons had been almost entirely copied from the Submissions was not disclosed to the Court by either party.

Full Court Hearing

The Applicant appealed from the decision of Gilmour J on the basis that his Honour had erred in finding that the Schokker Affidavit was taken into account by the Tribunal in making its decision. The critical fact relating to the source of the Tribunal's reasons was again omitted from both parties' written submissions to the Full Court which was comprised of North, Logan and Robertson JJ.

Prior to the matter being heard, the Court became aware of the source of the Tribunal's reasons and queried the parties as to why this fact had not been disclosed at first instance or on appeal. The response of the Commissioner was that it merely responded to the submissions of the Applicant and given the source of the Tribunal's reasons was not raised, it did not address the issue in its own submissions.

The Full Court held that it was "a distraction to examine the reasons of the Tribunal as if they were an independent text without reference to their source" [at 130]. Given the substance of the Schokker Affidavit was not dealt with in the Submissions, the Full Court further found that it could not be inferred that the Tribunal took the substance of the affidavit into account when making its decision. The appeal was therefore allowed, the decision of the Tribunal set aside and the matter referred to the Tribunal for further consideration.

Model Litigant Obligations

The Full Court stated that "being a model litigant requires the Commonwealth and its agencies, as parties to litigation, to act with complete proprietary, fairly and in accordance with the highest professional standards" [at 42]. The Court further indicated that the content of this obligation may surpass other professional obligations to act honestly, ethically and in accordance with the law and court rules.

The Court also traced the model litigant obligation back to the traditional relationship between the Crown and its subjects and noted that the Commonwealth and its agencies have no legitimate private interest in the performance of their functions and frequently also have greater access to resources than private litigants. For these reasons, the Court held that Australian Government Agencies and their legal representatives should act as moral exemplars when engaging with private litigants.

In the present case, the Full Court found that the Commissioner had an obligation, as a model litigant, to ensure that the Court was fully aware of the relevant circumstances concerning the source of the Tribunal's reasons. The Court stated that "if the appellants failed to fully explain the position to the primary judge then the Commissioner should have done so" [at 40] and indicated that it was inadequate of the Commissioner to only respond to the submissions made by the Applicant.
Consequences

This decision of the Full Federal Court highlights the critical importance of Australian Government Agencies to act as model litigants to ensure that its interactions with private litigants are fair and transparent. This decision further serves as a reminder that Australian Government Agencies and their internal and external legal representatives must act as model litigants at all times, including where it is not necessarily in the strategic interests of the Agency to do so."

Respectfully, Glen Buckley

MTF...P2