“See you in court” – Dick’s new challenge to CASA


Dick Smith (yes, That Dick Smith) has launched a Federal Court challenge to CASA’s director and its legal team over the regulator’s long-disputed decision (the ‘area VHF direction’) to assign already busy VHF (very high frequency) radio frequencies to aircraft flying at or in the vicinity of non-controlled aerodromes that don’t have a discrete common traffic advisory frequency (CTAF) and are not depicted on aeronautical charts.

The debate on this issue has been long-standing and ProAviation has never seen any meaningful regulatory response to the well-reasoned opposition it has generated from affected industry organisations and operators. That opposition debates safety fears related to frequency congestion with large numbers of aircraft on the same frequencies in environments where they may not all be geographically able to communicate with one another or other aircraft on different channels.

That decision appears to be embodied in the NOTAM (notice to airmen) C119/14 issued by CASA in July 2014, and changes to the Aeronautical Information Publication (AIP) made at CASA’s instance in May 2013 and in August 2014.

“It appears to our client that in making the decision, CASA failed to act within with the limits of its statutory authority, and either took into account irrelevant considerations, or failed to consider relevant considerations, or both.”

The letter details Dick’s views that the area VHF direction was made potentially without due legal head of power, that formal industry consultation processes were circumvented or ignored, that there is at the very least, disagreement within the aviation industry stakeholders as to whether the area VHF direction complies with CASA’s obligations under the Civil Aviation Act, that CASA decision-making processes have been non-transparent in areas that affect airspace use decisions and related communications between aircraft and ground stations, apparent noncompliance with CASA’s own Australian Airspace Policy Statement (AAPS.)

In a letter copied to CASA’s head lawyer Adam Anastasi and to incoming Minister for Infrastructure and Transport Darren Chester, Dick’s lawyers Mark O’Brien Legal give the regulator notice that “If we do not have a satisfactory response within fourteen days of the date of this letter, we have instructions to commence proceedings in the Federal Court of Australia, with no further notice to you, to judicially review CASA’s decision.

“Our client has standing, as a person who is affected by CASA’s decision, to seek relief in the form of constitutional writs, including that the decision of CASA be quashed and re-made according to law.”

A judicial review such as the one Dick is seeking could see senior aviation bureaucrats responding under oath to numerous assertions contained in the letter; in particular whether CASA’s actions are consistent with its obligations under the Civil Aviation Act and Regulations.

Although Dick owns his own small fleet of general aviation aircraft, he reserves his sympathies for those on aviation who are less fortunate in the face of our fast-expanding aviation bureaucracies. He told ProAviation recently:

“There is simply no understanding at Airservices and at CASA or in the Department that cost is so important for general aviation. Misallocate $100 million in relation to the airlines and that’s either $1 or $2 per passenger and hardly noticeable. Misallocate $100 million in General Aviation and you don’t have an industry anymore.

“There is no understanding of this within these three organisations and that’s why things are going to get far worse before they get better.”