[Peetwo]

GlenB embuggerance update: 01/10/22

Via the UP:

The Bad faith mental element Continued


“Attempts to resolve the contract issue.

Mr Aleck has led the Ombudsman’s Office to be of the view that CASA made a number of “good faith attempts” to resolve the contracts issue.

That representation is very far from the truth, and I will attend to that here.

Recall that the crippling trading restrictions dealt with, in detail later in the “Damages section” will not be lifted until Mr Aleck is personally satisfied with the wording of our commercial agreements.

A simple task that could and should have been completed within a matter of hours was dragged out unnecessarily over 8 months. This was simply a task of putting CASA required text into our commercial agreements. Within hours of CASA providing that text at any time after October 2018, or preferably years prior, this matter could have been finalised. I was dependent on CASA clearly and concisely advising what they require in our commercial contracts. There was no resistance at all from me. Mr Aleck was able to maintain the crippling trading restrictions on the business for a staggering six months, while denying me any right of appeal while he “thought about the wording that would satisfy him” and refused to make a decision, despite me calling on him to do so.

As I have stated previously, there is absolutely no reason that this entire matter could not have been resolved in a matter of hours.

On every occasion that I met a CASA requirement and embedded it into the commercial contracts, CASA would stipulate a new requirement. It was increasingly obvious that there was little intent to resolve the issue of the “contracts”. I was chasing a moving target.

Some important considerations and underpinning knowledge here:

· It’s important to recall CASAs alternating narrative. First, my structure was deemed unlawful by Mr Aleck, then after a couple of months, as that position became tenuous, he moved over to the “Temporary Locations” procedure that we utilised to induct new members. This exact process that we adopted was the exact procedure that CASA had suggested to me and approved years earlier. Once CASA realised that it was in fact their own approved procedure, there was no option, either lift the restrictions, which is exactly what should have happened, or find a new topic to maintain the restrictions on the businesses ability to trade. That topic now became the “contracts” issue, and the restrictions on trade remained in place, until that was resolved to Mr Alecks satisfaction.

· This requirement for CASA to be involved in the wording of the “commercial” agreement between the Members was a new and unique requirement that Mr Aleck placed on my business only. No other Operators, including mine, had ever previously been required to hold a CASA approved commercial contract. CASA has no such contracts for any operator on file. There is no legislative or safety argument to suggest CASA should have any involvement. Mr Aleck was not compelled to place those restrictions on the business for eight months while the wording was considered by CASA, it was a considered decision by Mr Aleck. He would have been fully aware of the commercial and reputational harm that would be caused by his action, and I advised CASA on multiple occasions in detail of the commercial and reputational harm being caused.

· In fact, I truly do not believe that Mr Aleck had any valid basis to stipulate this requirement for CASA to even become involved in commercial contracts. It is critical that the reader has an understanding of what an “Exposition” is, as opposed to a “commercial agreement. The commercial agreement being the document that CASA insisted on becoming involved in. Once the reader has an understanding of the difference between the Exposition and the Commercial Agreements, it becomes increasingly obvious that the requirement by CASA is quite bizarre.

The “commercial agreement” is simply the contract that the majority of businesses in any industry will have with their customers, outlining the “business” and “financial” aspects of the relationship. As it is commercial in nature, and not related to safety or compliance, CASA has traditionally not been involved in these arrangements, and has no legislative obligations to do so. The commercial contract is a normal part of doing business. This was not only a case of CASA wanting us to have commercial contracts, but also wanting to stipulate the wording in those commercial contracts. Unusually CASA refused to become a signatory.

The “Exposition” on the other hand is a comprehensive suite of documents of several thousand pages. The Exposition is a CASA requirement, and I will draw on CASAs own definition of what an Exposition is;

An Exposition is a document, or set of documents, which describe how your organisation will conduct its operations safely. It sets out both for CASA and the personnel involved in your operation how you intend to comply with all applicable legislative requirements and manage the safety of your operation. The relevant regulations will outline what you must include. It will include information about your organisation, personnel, facilities, policies, systems and procedures for conducting your activities.

A flight training organisation is required to describe procedures by which the operator conducts and manages its training activities, including the supervision of instructors and trainees. Your exposition must accurately reflect how you will conduct your activities. It needs to be written and structured in a logical way. This will ensure the relevant parts can be readily identified and provided to your personnel who are responsible for complying with them.

Example, CASR 142.340 requires a Part 142 flight training organisation to describe procedures by which the operator conducts and manages its training activities, including the supervision of instructors and trainees. Your exposition must accurately reflect how you will conduct your activities. It needs to be structured in a logical way. This will ensure the relevant parts can be readily identified and provided to your personnel who are responsible for complying with them. The procedures in your exposition should also provide enough detail so that your personnel can conduct their activities consistently in line with your intentions. Each procedure should address, where required.

· What must be done?

· Who should do it?

· When it must be done.

· Where it must be done

· How it must be done

· Record Keeping

· How the procedure is monitored and approved

Once the relevant authorisation has been issued by CASA, you are obliged to conduct your activities in accordance with your exposition.

Below is an extract from CASR 142.340. This link outlines the regulatory requirements for the contents of the Exposition.As stated before. If CASA required any structural or significant changes it was essential that they are contained within the Exposition, not a commercial contract.

CIVIL AVIATION SAFETY REGULATIONS 1998 - REG 142.340 Part 142 operators--content of exposition (austlii.edu.au)

· The Exposition document that CASA is heavily involved in and would be where I would expect matters of operational control to be contained. The “commercial” agreement between a business and its customers traditionally have not been something that CASA has any involvement in.

· Furthermore, it seemed unreasonable that Mr Aleck would stipulate CASA requirements into a commercial contract and not be prepared to be a signatory to that contract. I have no legal training at all but surely CASA has no right to “interfere” in the contents of commercial contracts, and most especially if they will not be a signatory. Nevertheless, I showed no resistance at all and was willing and able to do whatever CASA required in order to have the trading restrictions lifted. I just needed CASA to tell me what they wanted.

· It is also important to understand that when CASA wrote to me in October 2018, notifying their intention to close my business, they called for me to provide copies of commercial contracts. I advised CASA that I had provided them multiple copies over the preceding years, including to Mr Graeme Crawford, the Executive Manager of the Aviation Group and CASAs second in charge at the time. CASA denied this, I showed irrefutable evidence. CASA was now in a difficult situation. They had called for contracts, and now discovered that they already held them. Although there had been no requirement, I had provided them as a matter of courtesy. CASA was now in a difficult situation. CASA now had no safety case, no regultory breach, the Temporary Locations procedure had been found to be their own procedure, and now CASA realised that they already had the contracts. Mr Aleck had by now pushed himself into a corner. Rather than admit error, and work with good intent to resolve the matter, he chose a path forward where the trading restrictions would stay in place until we could adjust the wording in the contracts, to his satisfaction. As I was attending to his opinion only, I was fully reliant on Mr Aleck being satisfied if the trading restrictions were to be lifted. There was now a significant power imbalance, as Mr Alecks application of his opinion would determine the future of me and my businesses. I requested on multiple occasions that the trading restrictions be lifted, while Mr Aleck was “thinking” about it, but CASA refused to lift the trading restrictions.

What really happened here was that CASA kept changing their requirements. On each and every occasion that CASA provided information on their requirements, it was retuned on every occasion within 4 business days and CASA will not be able to refute that. On every occasion, CASA changed their mind, and the requirements were altered.

Finally, after 6 months with the crippling trading restrictions in place CASA again provides me with the “finalised” wording that will once again satisfy CASA.

Once again, I embed that into my contracts, submit it to CASA. CASA approve it, and then shortly, do exactly what they have done throughout the previous 6 months, and change their mind again, and I am right back exactly where I was 6 months earlier, with the trading restrictions in place. It was obvious to me that this matter could not be resolved. There was no intention for it to be resolved.

This happened on multiple occasions, but on the final occasion I was able to obtain a recording of that meeting, and I will provide that recording here. This recording has previously been provided to the Commonwealth Ombudsman, The CASA Board, and the CASA CEO.

Until now, I had not distributed that recording outside of that small pertinent group. I do intend to share that recording with other relevant parties that request it. I am fully satisfied that there is an attempted coverup of this matter, and that Mr Aleck is being “protected”. If my allegations are substantiated, there can be no doubt that the safety of aviation could be impacted by that misconduct, and especially so when considering the seniority of the Executives involved. I sought assistance from the previous LNP Government at Ministerial level, and the CASA Board who refuse to meet with me. My rights under administrative law have been ignored, as have my rights under natural justice and procedural fairness. The trauma and harm caused has been significant. On the basis of the safety of aviation alone, without all the other contributing factors, I feel that I have no option available to me, other than to release that recording, and expose that misconduct within CASA.

The point of this recording. It clearly demonstrates that CASA gave me guaranteed assurances that if I embedded the suggested CASA text into my contracts, they would finally lift the trading restrictions. CASA did not. That recording can be accessed in the timeline below. Understand that the crippling trading restrictions have now been in place for a staggering 6 months. There was no doubt in my mind that this was simply being used as a “delaying tactic”. Mr Aleck was fully aware that each week this matter went on, my family was having to subsidise continuing operations. Initially this was $10,000 per week and increased to $20,000 per week as business continued to decline as a result of the unnecessarily prolonged matter. By now, my own funds are exhausted, and my parents have contributed $300,000 of their retirement fund, to maintain operations. CASA was fully aware of the commercial and reputational harm being caused because I wrote to CASA on multiple occasions on this topic.

Not only commercially but reputationally the business is decimated. We have been unable to enrol any students into our courses, as we only have a limited surety of operations, i.e., 7 days. Customers are transferring away from us, staff are becoming increasingly concerned about their continuing employment, and enormous organisational instability exists.

On Tuesday April 2nd, 2019. CASA provide their “final” guidance on what will satisfy Mr Aleck, in order for the trading restrictions be lifted. It is inexplicable that CASA placed trading restrictions on the business 6 months earlier, and they have only just worked out the wording that they want. A fundamental principle is that “in order for something to be wrong, you need to know what right is”. If CASA deemed my commercial contracts wrong or deficient and in need of CASA involvement 6 months prior, surely, they should have thought about the wording that they wanted way back then, and that failure to resolve the matter is exactly why the matter could not be resolved in 4 hours as it should have been. Irrespective, CASA finally provide the wording that will satisfy “CASA/Mr Aleck” on April 2nd, 2019

My Accountant also contacts me on the same day requesting a meeting. I have now been assuring him for 6 months that this simple matter of the wording in our commercial contracts is about to be resolved. He had grave concerns about continuing operations and asked that I come to his office with my Admin Manager at 11.30 AM on April 4th being the Thursday, in two days’ time.

On Thursday April 4th being the day that we were to meet with our accountancy firm, I emailed Mr Peter White of CASA at 8.30AM in the morning requesting a phone conference call at 11.30AM that same day from the office of my accountancy firm. I advised that the meeting would be about the potential cessation of all operations at APTA, Ballarat Aero Club, Latrobe Valley Aero Club, Simjet, Whitestar Aviation, AVIA and Learn to Fly, and MFT, unless we could finalise this matter of the wording in the contracts. Like me, my accountant could not understand how such a simple matter was not resolved after 6 months. It was imperative that the matter of the contracts was resolved at that meeting. The business could not proceed if the restrictions remained in place. It was imperative that the “interim operations” and other CASA imposed restrictions be lifted and the business permitted to return to “business as usual’.

My accountant had grave concerns about the impact of the restrictions on the business over the previous 6 months, and like me, could not see any basis on safety or law for the CASA actions. It was a change of opinion. By now the business is under extreme financial distress. My accountant was extremely concerned that after 6 months waiting for CASA to determine what they want in the contracts; the matter was still not resolved.

4th April 2019 at 11.30AM The meeting proceeded at 11.30 AM by way of a conference call. In attendance representing CASA would be the Executive Manager Aviation Group Mr Graeme Crawford, and the Executive Manager of Regulatory Services and Surveillance, Mr Craig Martin. Also in attendance were two staff from my accountancy firm and two staff from APTA. Both CASA employees have since left the Organisation.

The point of providing this recording. It includes several very clear commitments from each of those employees, that if I embed that wording, the trading restrictions will be lifted, and I will be able to return to business as usual.

At that meeting, CASA Executives Mr Martin and Mr Crawford individually gave me firm and repeated commitments that if I embedded the CASA suggested text, that was provided to me only two days earlier by CASA into the contracts, then the restrictions on the businesses ability to trade would be lifted. APTA would be promptly approved to continue operations and as CASA termed it, return to “business as usual”

Some points that I should mention regarding some statements made in the recording that I will shortly provide.

Mr Martin urged me to get the contract back as soon as possible, as that was “all we were waiting for”. His tone suggested that they were waiting on me, as they were. I had been waiting on CASA to provide that text for 6 months. They had provided it only two days earlier on the Tuesday.

My accountant queried Mr Crawford as to why it had taken 6 months for CASA to provide the suggested text and lift the restrictions on the business. Mr Crawford advised my accountant that he didn’t have to explain CASAs position and that he didn’t have to talk to him because he was the accountant. It was obvious at that meeting that they were unable to justify the unacceptable timelines and were not going to explain the reason that it took CASA 6 months to work out what it was that they wanted.

There was no doubt in my mind at the conclusion of that meeting that CASA committed that they would lift the restrictions if I returned the contracts with the CASA guidance fully embedded, as they had committed to previously.

RECORDING of MEETING ( PPRuNe supporters please email me defendapta@gmail.com if you would like to register your interest to obtain a copy.

Tuesday 9th April 2019 at 7.33AM It is now four business days after CASA provided their finalised requirements, which I had embedded into the contract. At 7.33AM, the contract is returned to CASA for review by Mr Peter White, the CASA Executive Manager of Regulatory Services and Surveillance at the time, and my point of contact to Mr Aleck. My reasonable expectation at this stage was that the business would soon be able to return to business as usual as CASA had already assured me on so many previous occasions during the previous 6 months, and in order to meet the commitments given by CASA Executives, Mr Martin and Mr Crawford at the Accountants Office days earlier on April 4th,

Tuesday 9th April 2019 at 6.32PM CASA has now received the finalised contracts approximately 12 hours earlier. Peter White the CASA Executive Manager of Regulatory Services and Surveillance at the time, responds and sends me an email titled “I can confirm the content is acceptable to CASA”. Within the body of the email, it goes on to state. “Dear Glen, I have reviewed the draft contract provided this date. I can confirm the content is acceptable to CASA. My appreciation to you and your staff for provision of same…….”

On receiving that email, I was relieved. Something that should have been solved 6 months ago, in a matter of a few hours, had finally been resolved to CASAs satisfaction By now the business had been decimated mine and the businesses funds were exhausted, my parents had put in $300,000 of their own money to ensure I could avoid any staff redundancies over the previous 6 months that the trading restrictions had been in place. Many of my customers and staff had already left because of the previous 6 months uncertainty, and I had been unable to take on new customers or students. The accountant had very firmly advised me that this matter must be resolved immediately, or he would have to intervene. He would not permit continued operations now costing approximately $20,000 per week.

I have now had a commitment from the following CASA Executives

1. CASA Executive Manager of the Aviation Group- Mr Graeme Crawford at my accountant’s office less than a week prior.

2. CASA Executive Manager Regulatory Services and Surveillance- Mr Peter White via email

3. CASA Acting Executive Manager Regulatory Services and Surveillance- Mr Craig Martin at my accountant’s office less than a week prior.

After waiting six months CASA has finally provided the suggested wording, which I have adopted, and the contract has been returned to CASA. I have assurances from all relevant CASA Executive managers with the exception of Mr Jonathan Aleck

Tuesday 9th April 2019 at 10.56PM.

Only hours later, there is yet another complete reversal by CASA and I am back at the start of the process again exactly where I was six months prior when CASA write back to me and ask, “can you hold off distributing for a day or two”. I am back in exactly the same situation that I was six months earlier. I have crippling trading restrictions in place, the damage reputationally and commercially is by now almost irreversible, and we still don’t have the CASA required wording that will satisfy Mr Aleck and permit me to return to Business as Usual.

12th April 2019, (Friday) CASA advise that they will contact me verbally over the weekend.

16th April 2019 (Tuesday) CASA advise that they would like another teleconference.

17th April 2019 (Wednesday) CASA advise that they have some “disappointing news”. The contracts were now not acceptable, CASA put a proposal to me that they would now pursue a different approach, although a new approval for interim operations would now be issued. It was the “interim approvals” that bought so much instability and uncertainty to the business. The matter was still not resolved, and another interim approval to operate is issued. Any remaining confidence in the APTA model by customers and potential customers is now lost as they have been in “limbo” for 6 months already. Their reasonable expectation, as was mine, was that this matter should have been resolved long ago.

24th April 2019 I write to CASA raising my concerns. Attached as Appendix D https://www.dropbox.com/s/yhtzovw4e1...0CASA.pdf?dl=0

There can be no doubt that this matter dragged unnecessarily on for 8 months, until Mr Aleck stood by his initial determination and declared that APTA was unlawful and forced all flying schools to leave APTA, including my own flying school of more than a decade. All of this without me having any right of appeal, as no Administrative Decision was ever made. There were no good faith attempts by Mr Aleck to resolve the contracts issue. There was only changing goalposts, and continual delaying tactics utilised that were completely unnecessary. From my experience as the owner of those businesses, at no stage did I ever feel that there was any intent to resolve this simple matter.

Mr Aleck was the decision maker whose “opinion” needed to be satisfied.

My trading restrictions would not be lifted until he was personally satisfied with the wording in the “commercial” contracts, of which CASA refused to be a signatory.

I was given solid commitments on that recording by CASA on April 4th from my accountants office that the wording they had now provided after 6 months would facilitate the lifting of trading restrictions. It didn’t.

MTF...P2