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Trans Air Ltd v Sagati [2011] PGNC 360; N4513 (23 December 2011)

N4513

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CIA NO 140 OF 2011

BETWEEN:

TRANS AIR LIMITED
Appellant

AND:

WILSON SAGATI as the Director of the Civil Aviation Authority
First Respondent

AND:

CIVIL AVIATION SAFETY AUTHORITY OF PAPUA NEW GUINEA
Second Respondent

Waigani: Manuhu, J
2011: 8th, 13th, & 23rd December

CIVIL AVIATION – Air Operator's Certificate – Revocation of – Stay pending appeal – Statutory bar – Aviation safety considerations

CIVIL AVIATION – Air Operator's Certificate – Revocation of - Mediation – Appropriateness of

Cases cited
Brian Michael Costello v The Controller of Civil Aviation (No 2) [1977] PNGLR 476, The Director of Civil Aviation v Air National Corporate Limited [2011] NZCA 3, Gary McHardy v Prosec Security & Communication Ltd [2000] PNGLR 279.

Counsel:

G. Ilai, for the Appellant. A. Manjin, for the Respondents.

23rd December, 2011

1. MANUHU, J.: This is an application by the Appellant for extension of interim stay orders pending appeal. The Respondents oppose the application on the basis that the stay in question is statute barred.

2. The Appellant's Air Operator Certificate (AOC) was revoked by the First Respondent on 5th October 2011 pursuant to 54 of the Civil Aviation Act 2000 (Act). The Appellant exercised his right of appeal to the National Court pursuant to section 310 (1) of the Act. He filed his appeal on 11th October 2011.

3. Requirement for service was subsequently dispensed with and the revocation was stayed in the interim. The Respondents were also restrained from relying on, implementing or enforcing the revocation related decisions. The interim orders were returnable on 21st October 2011. They were extended twice until 8th December 2011 when the Respondents' raised the objection and the parties were given the opportunity to present full arguments for my consideration.

4. The objection is made pursuant to section 312 of the Act. The section reads:

"312. Decision of Minister, Departmental Head or Director to continue in force pending appeal, etc.

(1) A decision of the Minister, the Departmental Head or the Director that is appealed against under Section 310 shall continue in force pending the determination of the appeal, and no person shall be excused from complying with any of the provisions of the Act or the decision on the ground that any appeal is pending.

(2) Notwithstanding that an appeal under Section 310 may have been determined in favour of the appellant, the Minister, the Departmental Head or the Director, as the case may be, may, subject to the same right of appeal, refuse to grant, revoke, suspend, disqualify, or otherwise deal with in accordance with the provisions any aviation document, any person to which or to whom the appeal related, or any aviation document or approval granted or restored in compliance with the decision of the National Court on the appeal, on any sufficient grounds supported by facts or evidence discovered since the hearing of the appeal."

5. The Appellant submitted that while this is not an ordinary appeal, considerations for grant or refusal of stay enunciated in Gary McHardy v Prosec Security & Communication Ltd [2000] PNGLR 279 are relevant. Grant or refusal of stay is discretionary, and the Court should consider this case on its own merits.

6. Accordingly, it is submitted that the revocation would cause considerable hardship, inconvenience and prejudice in that the Appellant would not be able to perform its contractual obligations. The Appellant also fears that it will lose its lease over the hangar which is contingent upon the Appellant holding a valid AOC. The Appellant is further concerned about the welfare of its employees.

7. However, the scheme of the Act is to ensure and maintain a high standard of air safety in Papua New Guinea. The Preamble of the Act consistently states that the Act is to enable the civil aviation to promote and regulate civil aviation safety and security; and to enhance safety, security, efficiency and service quality in the civil aviation system in a substantial manner; and to contribute to the safe, smooth flow of passengers, aircraft and cargo within the civil aviation system.

8. The primary objects of the Act are prescribed in section 2. They include:

"(a) enhancing safety, security, efficiency and service quality in the civil aviation system in a sustainable manner, facilitating access to the air transport network and contributing to the safe, smooth flow of passengers, aircraft and cargo within the civil aviation system so that it can contribute to the economic and social development of Papua New Guinea; and

(b) establishing rules of operation and the divisions of responsibility within the Papua New Guinea civil aviation system in order to promote aviation safety and security at a reasonable cost; and

(c) ensuring that Papua New Guinea's obligations under international aviation and meteorological agreements are implemented; and

(d) ensuring the provision of services and facilities for civil aviation and meteorology as efficiently and economically as practicable."

9. Under section 5, subject to the Act, the Act also applies to

"(a) every person, aircraft, aerodrome, aeronautical product, air service and aviation related service, in Papua New Guinea;

(b) every Papua New Guinea registered aircraft whether within or outside Papua New Guinea;

(c) every holder of an aviation document whether within or outside Papua New Guinea exercising or purporting to exercise privileges accorded by that document;

(d) every foreign registered aircraft operating in Papua New Guinea."

10. It is clear from these provisions that aviation safety is the overriding consideration. This is also evident in the wordings of other sections including sections 6, 8, 11 and 12. Under section 17 (5), it is declared that the Minister responsible for civil aviation, the Departmental Head or a member of the Civil Aviation Authority "shall not interfere in, attempt to influence or direct the Director in the performance of his functions" including the power to grant or revoke an aviation document.

11. In Brian Michael Costello v The Controller of Civil Aviation (No 2) [1977] PNGLR 476, the appellant, a pilot with 19 years of flying experience, was colour blind. He had difficulty with distinguishing red, yellow and green and of white and blue green. He applied for a first class airline transport pilot's licence, and was asked to undergo a medical examination, which he successfully completed. He was however informed that his application had been refused because he did not meet the "colour perception standard required..."

12. On appeal, the Supreme Court (per Frost C.J. and Williams J. Kearney J., dissenting) held:

"To meet the standard of colour perception required by s. 47.3 of the Air Navigation Order (Australia), the applicant for the grant of a licence must show that he has the ability to distinguish readily those colours used in aviation, the perception of which is necessary for the safe performance of his duties, and demonstrate his ability in the manner prescribed in paragraphs 2-6 of that Order."

13. The New Zealand case of The Director of Civil Aviation v Air National Corporate Limited [2011] NZCA 3 was an appeal to the Court of Appeal against stay orders (granted after a contested hearing) against a decision to suspend an AOC for 10 days. The consequence of the suspension is that the respondent was unable to carry on its business of providing charter flights within New Zealand on behalf of Air New Zealand and others. The Court of Appeal considered the relevant statutory provisions including the power of the Director to investigate a holder of an aviation document and his power to suspend an aviation document. It was held that the Director was entitled to take a precautionary approach. The appeal was upheld and the stay orders were quashed.

14. In this case, the Appellant operates an aircraft charter business. It is contracted to International SOS to provide an aircraft to medical evacuations and emergencies. It operates out of Hangar 156 at Jacksons Airport. It has three air planes, a Cessna C550 and two Cessna Caravans C208.

15. On 31st August 2010, the Cessna C550 P2-TAA crashed in Misima, Milne Bay Province. The crash prompted an investigation which was conducted by Captain W. A. Fairbairn. On 20 April 2011, the Appellant's other aircraft Cessna Caravan C208 P2 TWW was involved in an incident in "Mount Hagen airport". The incident occurred during landing when the plane clipped the power lines while attempting to manoeuvre through cloud cover over the airport. An investigation was also carried out by the Second Respondent.

16. In his revocation letter, among other things, the First Respondent considered that the Appellant did not "unconditionally" comply with or implement the recommendations in Captain Fairbairn's Investigation Report.

17. The merits of the revocation are matters for substantive hearing. I have set out the brief background to reinforce the requirement for strict compliance in the aviation industry. The First Respondent has wide powers in respect of grant or revocation of AOC. The Act declares that the First Respondent's power to revoke an AOC shall not be interfered with.

18. Consistently, while the Court is allowed to entertain appeals, it is understandably not allowed to interfere, pending appeal, with the effect of the decision of the First Respondent.

19. In all the circumstances, I will refuse the Appellant's request for extension of the stay orders. This means that the decision of the Director to revoke the Appellant's AOC and related decisions continue to be in force and ought to be complied with by the Appellant.

20. The Appellant has also requested that the matter be referred to mediation. It appears to me that mediation may not be appropriate because air safety cannot and should not be compromised. There are established high standards and requirements for a license holder to comply with. The onus is on a license holder to meet those requirements and keep or obtain a new license. I am not adequately persuaded on the prospect of mediation but the parties are at liberty to pursue mediation.

____________________________________________________
G. Ilai: Lawyer for the Appellant A. Manjin: Lawyer for the Respondent.