• The Federal Court will hear the Angel Flight application in Melbourne. (Google Earth image)
    The Federal Court will hear the Angel Flight application in Melbourne. (Google Earth image)

The Federal Court of Australia has dismissed the application by Angel Flight to have CASA's community service flight restrictions struck out.

Justice Anderson handed down his decision this morning, also awarding costs against the aviation charity.

Angel Flight was seeking to have the Federal Court strike out the conditions placed on Angel Flight pilots and aircraft maintenance standards, saying the regulator had acted outside its authority (ultra vires) and that CASA's exercise of its power was unreasonable.

Justice Anderson ruled that Angel Flight had not established the grounds on which they applied for the review, rejecting the four grounds of ultra vires submitted, mostly on interpretation of legistative and regulatory instruments that frame CASA's authority.

On the argument that CASA's action was unreasonable, the court noted that "CASA's assessment that CSFs had a 'higher risk of accident or incident' due to 'risk factors that are not usually present in baseline private operations'. Angel Flight notes that the alleged higher risk ... was premised on two fatal accidents, which occurred on 15 August 2011 and 28 June 2017.

"Angel Flight submits that, based on these two incidents alone, CASA determined that CSFs had a higher accident or incident rate. Angel Flight submits that what risk factors to this supposed higher accident or incident rate are not apparent from any of the material filed by CASA in this proceeding."

Angel Flight also contended that documents revealed under discovery showed that CASA did not issue the instrument containing the restrictions in response to a higher accident or incident rate in CSFs and there was no evidence provided by CASA that pointed to any risk factors. Angel Flight contended that "the instrument was not able to be justified on any reasonable ground and was otherwise capricious and irrational."

Justice Anderson accepted the evidence of CASA Executive Manager Chris Monahan that the instrument was not issued solely as a response to CSF accidents and incidents, but rather "in response to concerns developed within CASA over some years."

He also accepted CASA's data analysis on which the regulator based its contention that CSFs had higher accident and incident rates, whilst rejecting the data analysis presented by Angel Flight advocate Dr Owen Crees.

"I am not satisfied that the evidence of Dr Crees provides an adequate or satisfactory foundation for his opinion that it is not possible to claim that Angel Flight has a higher rate of fatal accidents than private, business or sports aviation flights," Justice Anderson stated.

Justice Anderson explained in his decision that Dr Crees was not independent because he is an Angel Flight pilot and director, and because he relied on internal data that was not exhibited in his report or affidavit.

"In these circumstances, Dr Crees report should not be given any meaningful weight," Justice Anderson said.

He went on to say that he considered that Angel Flight had failed to prove that CASA acted unreasonably and that he believed there was a rational connection between the imposed restrictions and matters effecting aviation safety under the terms of the Civil Aviation Act.

Most telling, Justice Anderson stated that he did not accept Angel Flight's submission that it is necessary for CASA to "demonstrate by some statistical or empirical analysis that a risk factor exists to justify the validity of a condition in an instrument made under [CASR] 11.068."

Angel Flight has been contacted for comment.

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