[Peetwo]

Damned if you WIN and damned if you don't -

Remember this post? Attempted embuggerance & a Leopard's spots 

In particular this bit:

Which brings me to another classic example of how the more CASA profess they have embraced the findings and recommendations of the ASRR, the more evidence there is that they and the Department are merely paying lip service and playing for time (obfuscating) any real proactive actions on the ASRR..

 Keeping in mind that Dr A has been demoted to manager of LSD, the following is a clear example of the lengths CAsA will still go, with malice & aforethought, when it comes to attempted embuggerances of small inconsequential individuals or businesses.
 Reference from AAT: Bellamy and Civil Aviation Safety Authority [2016] AATA 956 (29 November 2016)

CONCLUSION

122.Despite Mr Bellamy having had a very unfortunate experience in his attempt at restoration and testing his J2 gyroplane, I have found that was no evidence upon which CASA can soundly base a suspension of his PPL. All of the difficulties which Mr Bellamy encountered, including his conviction in the Magistrates’ Court, stemmed from his gyroplane involvement. I had no evidence before me that similar circumstances would arise in the future as far as his fixed-wing operations are concerned. Mr Bellamy did not blatantly ignore the advice given to him by CASA and he appeared to have made significant attempts to comply with all legislative requirements as they existed at the time, which were not as clear as perhaps they could have been. I have found that he is a fit and proper person to hold the PPL – aeroplane.

123.I find that the decision made by CASA on 16 March 2016 cancelling Mr Bellamy’s
PPL– aeroplane was not the preferable decision. I set aside that decision. Therefore, Mr Bellamy’s PPL – aeroplane remains valid and should be treated as never having been cancelled. CASA’s records regarding Mr Bellamy should be amended accordingly.

124.I certify that the preceding 123 (one- hundred and twenty-three) paragraphs are a true copy of the reasons for the written reasons herein of Egon Fice, Senior Member

Well apparently the head of the 'CASA Office of Enforcement Embuggerance', Dr A was "not happy Egon!!" and has subsequently decided to waste more ATP money on a second (double jeopardy) attempt at once again embuggering that poor bastard Mr Bellamy...

[b] Civil Aviation Safety Authority  v Bellamy [2017] FCA 829

[/b]

CASA’S APPEAL

30.CASA submitted that the Tribunal had made three errors of law. They were that:◦the Tribunal’s errant finding that reg 229 did not apply to the private operations that Mr Bellamy was undertaking at the time of the crash misled the Tribunal when it was considering whether or not the disqualification grounds had been made out;

◦the Tribunal had misapprehended the elements of the offence for which Mr Bellamy had been convicted, and had made findings of fact which were inconsistent with findings which had been made in the criminal proceedings; and
◦the Tribunal had assessed Mr Bellamy’s fitness and propriety to hold a private pilot’s licence in the aeroplane category on the mistaken basis that his fitness to hold such a licence was to be treated as being distinct from, and unaffected by, his conduct in relation to his operation of a gyroplane and his use of a false maintenance release with the specific intention of unlawfully misleading the CASA investigator and unlawfully influencing CASA’s investigation of the crash.

---

&..

DISPOSITION

53. The appeal should be allowed and the Tribunal’s decision set aside. Mr Bellamy should pay CASA’s costs of the appeal.

54. CASA submitted that the matter should be remitted to a differently constituted Tribunal. Whilst acknowledging that the Tribunal had not made any adverse credit findings, it submitted that the case provided “a prime example of a case where a complicated process of fact finding has miscarried through a combination of factors”. Those factors included the assessment of Mr Bellamy’s fitness and propriety, the rejection of the evidence of CASA witnesses and of CASA’s submissions on matters which would fall for reconsideration upon remitter. Reliance was placed on the decisions of the New South Wales Court of Appeal in Seltsam Pty Limited v Ghaleb [2005] NSWCA 208; (2005) 3 DDCR 1 at 8–9; [2005] NSWCA 208 at [13]–[16] (Mason P) and [141] (Ipp JA) and the Western Australian Court of Appeal in Legal Profession Complaints Committee v Rayney [2017] WASCA 78 at [243] (Martin CJ, Murphy JA and Corboy J agreeing).

55. Mr Bellamy, on the other hand, contended that there was no need for any rehearing to be conducted by a different member. He submitted that there was nothing, in the Tribunal’s reasons or in its conduct of the appeal, to suggest to a fair-minded observer that the member might not approach any further hearing with an open mind: cf Seltsam at [142]. Furthermore, it was submitted, the additional time and expense which would be involved if the appeal were to proceed afresh before a different member was not warranted in all the circumstances...

...60. In the present matter there is a range of competing considerations which must inform the exercise of the Court’s discretion. There is no suggestion that the member made any adverse credit findings against any witness, indicated a preference for the evidence of one witness over another or failed to afford the parties procedural fairness. On the other hand, the question of Mr Bellamy’s fitness and propriety to hold a pilot’s licence involved a value judgment based on an assessment of his conduct. The misconstruction of reg 229 played some part in this process and resulted from an analysis of the legislation and a conclusion which had not been urged on the Tribunal by either party. There was also an apparent inclination to minimise the implications of a criminal conviction for dishonesty.

61. This, in my view, is a case in which it would be fairer to the parties were the matter to be heard by a differently constituted Tribunal: cf Northern NSW FM Pty Limited v Australian Broadcasting Tribunal (1990) 26 FCR 39 at 42–43; [1990] FCA 642 at p 6 (Davies and Foster JJ). Any rehearing should not take any longer than the first and may well be shorter if the parties are able to agree that the Tribunal can act on uncontroversial material which was considered by the Tribunal at the first hearing.

62. There will be an order that any rehearing proceed before a differently constituted Tribunal.

 Somehow I think this has less to do with the embuggerance of Mr Bellamy and more about the falling out of favour of the AAAT's Eggon Face - UDB!


MTF...P2