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Seddon v Oraka [2024] PGNC 179; N10842 (13 June 2024)

N10842

PAPUA NEW GUINEA
[IN THE NATIONA COURT OF JUSTICE]

CIA NO. 14 OF 2024 (IECMS)

BETWEEN:
GARY SEDDON as Acting Chief Executive Officer of Air Niugini
First Appellant

AND:
AIR NIUGINI LIMITED
Second Appellant

AND:

BENEDICT I. ORAKA, ML as the Director of Civil Aviation and Chief Executive Officer of Civil Aviation Safety Authority of Papua New Guinea
First Respondent

AND:
CIVIL AVIATION SAFETY AUTHORITY OF PAPUA NEW GUINEA
Second Respondent
Waigani: Purdon-Sully J
2024: 5th & 13th June

APPEAL – CIVIL AVIATION – Adverse decision made - stay pending appeal – whether a stay is statute barred – consideration of the s 312 of the Civil Aviation Act and s 155(4) of the Constitution – stay granted

Cases Cited:
Papua New Guinean Cases

Trans Air Ltd v Wilson Sagati & Ors [2011] N4513
Wingti v Rawali [2008] PGNC 320; N3336
Basa v Quoreka & Anor [2023] PGSC 138; SC2491
Brian Michael Costello v The Controller of Civil Aviation (No 2) [1977] PNGLR 476

Overseas Cases

Magrath v Goldsborough, Mort & Co Ltd [1932] HCA 10; (1932) 47 CLR 121
Knight v FP Special Assets Ltd (1992) HCA 28; (1992) 174 CLR 178:
Anisminic Ltd v Foreign Compensation Commission [1968] UKHL 6; [1969] 2 AC 147 (HL)(UK)
R v Hickman, ex parte Fox [1945] HCA 53; (1945) 70 CLR 598 (HC)
The Director of Civil Aviation v Air National Corporation Limited [2011] NZCA 3
R v Secretary of State for Transport; ex parte Factortame Ltd & Ors (No. 2) (1990) UKHL 13; [1991] 1 AC 603
R v Secretary of State for Foreign & Commonwealth Affairs ex parte Quark Fishing Ltd [2005] UKHL 57; [2006] 1 AC 529

Legislation:

National Court Rules, Order 18 Rule 12(2) and (3)
Constitution, ss 9, 10, 155(4), 184(1)
Civil Aviation Act 2000, ss 51(2), 310, 311, 312,

Treaties

Statutory Interpretation in Australia, 7th Ed, DC Pearce & RS Geddes, LexisNexus Butterworths, Sydney, 2011

Counsel

I Molloy, for the Plaintiffs
G Dusava, for the Defendants

DECISION

13th June 2024

1. PURDON-SULLY J: By Notice of Appeal filed on 9 April 2024 the applicants/appellants (applicants) lodged an appeal pursuant to s 310 of the Civil Aviation Act 2000 (CAA) against an adverse decision of the first and/or second respondents (respondents) contained in a letter dated 31 March 2024 whereby the respondents purportedly found that the first appellant, Gary Seddon, was not a fit and proper person to exercise the powers of Chief Executive Officer (CEO) of the second appellant, Air Niugini Limited (ANL).
   
2. By Notice of Motion filed the same date the applicants sought a stay of the decision pending the hearing and determination of the appeal or until further order.
   
3. On 9 April 2024, in the absence of the respondents, this Court granted an interim stay pending an inter parties hearing of the Notice of Motion.
   
4. The matter came before the Court on 5 June 2024 the applicants seeking, pursuant to Order 18 Rule 12(2) and (3) of the National Court Rules (NCR) and/or s 155(4) of the Constitution, that the interim stay be continued pending hearing and determination of the appeal or earlier order.
   
5. The application is opposed by the respondents.
   

MATERIAL CONSIDERED

6. The applicants rely upon the following material:
   
   1. Notice of Appeal filed on 9 April 2024;
   2. Affidavit of Gary Seddon filed on 9 April 2024;
   100. Affidavit of Captain Granger Narara filed 24 April 2024;
   4. Affidavit of Karl Yalo filed 24 April 2024;
   5. Written submissions filed 26 April 2024; and
   6. List of Authorities.
      
7. The respondents rely upon the following material:
   
   1. Notice of Appeal filed on 9 April 2024;
   2. Affidavit of the Gary Seddon filed on 9 April 2024;
   100. Affidavit of Benedict I Oraka filed on 16 April 2024;
   4. Further Affidavit of Benedict I Oraka filed on 19 April 2024;
   5. Affidavit of Captain Granger Narara filed 24 April 2024;
   6. Affidavit of Karl Yalo filed 24 April 2024;
   7. Written submissions filed 31 May 2024; and
   8. List of Authorities.

BACKGROUND

8. On 23 February 2023 the National Executive Council approved the appointment of Mr Seddon as the Acting CEO of ANL.
   
9. Upon his appointment as the Acting CEO, the respondents conducted a fit and proper person test under s 49(1)(b)(ii) of the CAA.
   
10. By a letter dated 11 April 2023 from the Office of the CEO and Director of Civil Aviation, Mr Seddon was informed that he was a fit and proper person to hold the position of CEO of ANL.
    
11. Between 13 November and 24 November 2023, the Civil Aviation Safety Authority of Papua New Guinea (CASA) conducted a safety and security inspection and review of the organisation of ANL pursuant to s 52 of CAA (audit).
    
12. On or about 7 February 2024, following the audit, the first respondent, as the Director of Civil Aviation and Chief Executive Officer of CASA, issued a Notice by letter dated 7 February 2024 (Notice). The Notice revealed eight (8) infringement notices. The Notice raised matters under five (5) headings described as Management Systems which can be summarised as follows:
    
    1. Outdated organisational structure;
    2. Senior persons appointed who had not been assessed as fit and proper persons by the Director;
    100. Delay associated with failure to revise operational manuals, Training Manuals and other related documentation to capture the configuration differences between P2-PXC and P2-PXA Air Niugini Boeing B737-800 aircraft;
    4. Outdated organisation charts at front of Air Niugini manuals;
    5. Air Niugini’s Training Manual did not appropriately describe differences between P2-PXC and P2-PXA Air Niugini Boeing B737-800 aircraft and training issues with relevant personnel.
13. The Notice inter alia stated:
    

While your Quality and Safety Manager may be directly responsible for the Quality and Safety Management of Air Niugini, you have overall control over the exercise of the privileges under the Air Operator Certificate (AOC)

As the Chief Executive Officer (CEO), you are ultimately responsible for ensuring that the Air Niugini AOC organisation, the Air Niugini MOC organisation and the Air Niugini Training Organisation complies with the requirements of Part 119 and Part 45 (of the CAA).

14. The Notice was issued under s 51(2) of the CAA by which the first respondent gave notice of a proposed adverse decision to revoke the status of Mr Seddon as a fit and proper person under the CAA “by failing to ensure that Air Niugini’s Quality and Safety management system comply with the relevant prescribed safety standards attached to Air Niugini AOC number 119/010 and MOC Number 145/010”.
    
15. Mr Seddon objected to the proposal to make the adverse decision by way of a letter dated 7 March 2024. His reply, accompanied by substantial supporting documentation, was served on the Office of the first respondent on 8 March 2024. He asserted, in short, that ANL had taken immediate corrective and preventative action in relation to the findings of the audit, notified CASA of the steps taken and that ANL had in place a management system that ensured compliance with relevant safety standards and conditions of CASA.
    
16. In a letter dated 21 March 2024, the first respondent informed Mr Seddon of his decision to revoke his status as a fit and proper person (Decision).
    

THE ISSUES

17. The issue for determination is whether a proper statutory interpretation of s 312 of the CCA prevents the National Court from exercising its powers and procedures in respect of the appeal contained in Order 18 of NCR including granting a stay pending hearing and determination of the appeal or earlier order and, if not, whether the principles governing the grant of a stay pending appeal support the continuation of the interim stay order made 9 April 2024.
    

CONSIDERATION

Is the stay order granted on 9 April 2024 in breach of s 312 of the CCA?

18. It is submitted on behalf of the respondents that the Court is precluded by s 312 of the CAA from granting an interim stay, that all legislative provisions are required to be given their fair and liberal meaning so as to given effect to the legislative intent, it being the clear legislative intent and primary object of the CAA to ensure and maintain a high standard of air safety in Papua New Guinea. In support of their contention reliance is had on a decision of this Court in Trans Air Ltd v Wilson Sagati & Ors [2011] N4513 (Sagati) where on an appeal from a decision of the then Director and CEO of CASA PNG, the learned Judge hearing the matter, in refusing the appellant’s application for an extension of a stay, concluded that the decision of the Director could not be interfered with pending the appeal.
    
19. Further, and with respect to the applicability of s 155(4) of the Constitution, it is submitted that whilst the Supreme and National Courts has an inherent power to make in such circumstance as seems proper, orders in the nature of prerogative writs and such other orders as are necessary to do justice in the circumstances of a particular case, s 155(4) should not be used or over used by the Court, rather only applied in a particular or exceptional circumstance, the applicants not providing any particular circumstance to involve the provisions of the section such as to override s 312 of the CAA.
    
20. On behalf of the applicants it is submitted that the Court is not statutorily barred from granting a stay however if jurisdiction under Order 18 Rule 12 of the NCR is unavailable, the Court has jurisdiction under s 155(4) of the Constitution to grant a stay, which cannot be excluded by ordinary legislative enactment. Further the Court is not bound by the decision of Sagati, a decision which did not address the issue of statutory interpretation relevant to the provisions of s.312 of the CAA nor the applicability of s 155(4) of the Constitution.
    
21. The Court accepts the submissions on behalf of the applicants that based on a proper interpretation of s 312 of CAA the applicants are not prohibited from seeking a stay. The basis upon which the Court has reached that conclusion is as follows.
    
22. Part XVII of the CAA is titled RIGHTS OF APPEAL. Sections 310 to 312 of Part XVII provide as follows:
    

310. APPEAL TO NATIONAL COURT.

(1) Where any other section provides that a person has a right of appeal under this section against a decision, that person may appeal to the National Court against that decision in respect of that person, in accordance with the provisions of this part.

(2) It is hereby declared that in the exercise of any power conferred on the Director by any section that confers a right of appeal of the kind referred to in Subsection (1) is, except when the section specifies that the right of appeal applies to a particular decision or directions, a decision in respect of a person within the meaning of Subsection (1) may be appealed against under this section.

(3) The right of appeal against any such decisions may be exercised by -

(a) the holder of the aviation document; or

(b) the owner or the person for the time being in charge of the aircraft or aeronautical product; or

(c) the owner or the person for the time being in charge of any aircraft or aeronautical product of any class, as the case may be, in respect of whom the decision was made; or

(d) an affected document holder pursuant to Section 51(1).

311. PROCEDURE.

(1) An appeal under Section 310 shall be brought, by application, not more than 28 days after the date on which the appellant is notified of the decision appealed against, or within such further period as the National Court may allow.

(2) In determining an appeal under Section 310 the National Court may -

(a) hear all evidence tendered and representations made by or on behalf of any party to the appeal, whether or not that evidence would be otherwise admissible in that Court; and

(b) either -

(i) confirm, reverse, or modify the decision appealed against, and make such orders and give such directions to the Minister, the Departmental Head or the Director, as the case may require, as may be necessary to give effect to the decision of the Court; or

(ii) refer the matter back to the Minister, the Departmental Head or the Director, as the case may require, with directions to reconsider the whole or any specified part of the matter.

(3) An appeal under this section shall be by way of rehearing.

(4) Subject to this section, an appeal shall be made and determined in accordance with the rules of the National Court or as determined by the Judge.

(5) Subject to Section 313, the decision of the National Court shall be final.

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) Despite 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.

(Emphasis for discussion purposes)

23. Section 310(1) and (2) of the CAA invests the National Court with jurisdiction to hear an appeal from the Decision.
    
24. The National Court's appellate jurisdiction is found in Order 18 of the NCR with the purpose of the rules stated to be “to prescribe procedures for the conduct of appeal cases in the National Court..." (see Division 1 A. – Appeals from the District Court and other statutory tribunals).
    
25. The powers and procedures of the National Court concerning applications to stay enforcement of an order appealed from are expressly provided for in Order 18 Rule 12 of the NCR.
    
26. Order 18 Rule 12 is in these terms:
    

Other matters.

(1) Originating Summons.

Applications for extension of time to appeal or dispensation or waiver of any condition precedent to the right of appeal prescribed by statute must be instituted by Originating Summons and made ex parte.

(2) Motions.

(a) An application for stay of enforcement of order appealed from or any other interlocutory application may be made before the judge by Notice of Motion.

(b) The practice and procedure for Motions shall be those applying to Motions under the National Court Rules.

(c) Motions shall be heard on dates in the week as directed by the judge except in the Supreme Court week or in the Judgment Writing Week. The practice in Waigani for the time being is that Motions will be heard on Tuesday and Thursday of each week.

(d) Where the Court determines an application for stay, a sealed copy of the Order shall be forwarded to the Clerk or appropriate officer of the statutory authority or tribunal which made the decision.

(3) Urgent Applications.

Urgent ex parte applications for stay or other interlocutory applications may be made before the judge by prior arrangement with the Registrar. If the Judge is not available, they may be moved before the Motions Judge who is the Duty Judge for the circuit month.

27. There is no relevant limitation contained within s 310 of the CAA on the powers and procedures of the National Court. Section 310(4) provides that, "Subject to this section, an appeal may be made and determined in accordance with the rules of the National Court or as determined by the Judge."
28. The Court accepts the submission on behalf of the applicants that s 312 (1) of the CAA that provides that a decision inter alia of a Director that is appealed against under Section 310 “shall continue in force pending the determination of the appeal” states a general principle, one that is not incompatible with the power in Order 18 Rule 12 of the NCR to allow the National Court to grant a stay pending appeal. That principle is that a pending appeal is not sufficient ground to excuse compliance with a decision. It does not however preclude the National Court from exercising the power to grant a stay pending appeal in a particular case on proper "grounds".
    
29. It is an interpretation that is not confined to appeals under s 310 (see for example, s 19 of the Supreme Court Act Ch 37; Order 5 Rules 38 and 6 of the Supreme Court Rules with respect to Election Petition Reviews; s 178C (1), (2) and (3) of the Customs Act Ch 101; Cf. s 14ZZB (1)(a) of the Taxation Administration Act 1953 (Cth) which expressly excludes the operation of the stay power in s 41(1) of the Administrative Appeals Tribunal Act 1975 (Cth)).
    
30. It is a principle consistent with the established approach to statutory interpretation where the Court will interpret any provision affecting its jurisdiction in such a way as to have a minimal effect on it and where statutes are not to be interpreted as depriving superior courts of power to prevent an unauthorised assumption of jurisdiction unless an intention to do so appears clearly and unmistakably (Magrath v Goldsborough, Mort & Co Ltd [1932] HCA 10; (1932) 47 CLR 121 at [134); see also Statutory Interpretation in Australia, 7th Ed, DC Pearce & RS Geddes, Lexis Nexus Butterworths, Sydney, 2011 at [5.40[ - [5.41]).
    
31. As Gaudron J said in Knight v FP Special Assets Ltd (1992) HCA 28; (1992) 174 CLR 178 at [62]:
    

It is contrary to long-established principle and wholly inappropriate that the grant of power to a court (including conferral of jurisdiction) should be construed as subject to a limitation not appearing in the words of the grant....

32. It is an interpretation consistent with well settled principles with respect to ouster or privative clauses which purport to prevent certain administrative decisions from being subject to judicial review and seek to oust the jurisdiction of the court sand where the Courts have sought to distinguish the restricted grounds and those that are not by holding that the intention to do so must be clear (Anisminic Ltd v Foreign Compensation Commission [1968] UKHL 6; [1969] 2 AC 147 (HL)(UK)).
33. Further, where the Constitution is supreme, the superior courts have inherent jurisdiction to review any decision made under public law as long as the decision is wrong in law (R v Hickman, ex parte Fox [1945] HCA 53; (1945) 70 CLR 598 (HC) at p 615).
    
34. The Court finds that on its proper statutory interpretation, s 312 of the CAA does not prevent the National Court from exercising its powers and procedures in respect of this appeal, contained in Order 18 of the NCR, including granting a stay pending hearing and determination of the appeal or earlier order.
    
35. Even if the Court is wrong in so concluding, and s 312 of CAA prevents the Court from exercising its power to stay under Order 18 Rule 12 of the NCR, then the Court would have an overriding jurisdiction to grant an interim stay by virtue of s 155(4) of the Constitution (Wingti v Rawali [2008] PGNC 320; N3336 at [26] (per Kapi CJ); Basa v Quoreka & Anor [2023] PGSC 138; SC2491 at [6]).
    
36. Section s 155(4) of the Constitution provides:
    

155. THE NATIONAL JUDICIAL SYSTEM.

.....

(4) Both the Supreme Court and the National Court have an inherent power to make, in such circumstances as seem to them proper, orders in the nature of prerogative writs and such other orders as are necessary to do justice in the circumstances of a particular case.

.....

37. Under s 9 of the Constitution, the laws of Papua New Guinea include the Constitution, Acts of the Parliament, and subordinate legislative enactments made under the Constitution including the NCR (see s 184(1) of the Constitution). Under s 10 of the Constitution, all written laws (other than the Constitution) shall be read subject to the Constitution.
    
38. The Court does not, respectfully, view itself bound by the decision Sagati relied upon by the respondents, in support of their submissions with respect to the effect of s.312 of CAA. It, and the authorities to which it makes reference, do not alter the conclusion of this Court that the National Court is not statute barred from granting a stay in the present case and may do so pursuant to Order 18 Rule 12 of NCR and/or s.155(4) of the Constitution.
    
39. In Sagati, the appellant, who operated an air charter business and who was the subject of an investigation following a crash at Milne Bay and then a further incident at Mt Hagen airport, had his AOC revoked by the first respondent. The appellant, in that matter, exercised his right of appeal under s 310(1) of the CCA. The revocation was stayed in the interim (twice) before the respondents opposed an extension of the interim stay order on the basis that the stay in question was statute barred by virtue of the provisions of s 312 of the CAA.
    
40. The learned Judge, in refusing to continue the stay, placed weight on the scheme of CAA to ensure and maintain a high standard of air safety in PNG, as an overriding consideration (at [10]), noted that the first respondent had wide powers in respect of the grant or revocation of an Air Operating Certificate and concluded that he was not permitted to interfere with the effect of the respondent’s decision (at [18]). However, neither the principles of statutory interpretation nor the applicability of s 155(4) of the Constitution as a jurisdictional basis for the grant of stay appear to have been raised before and thus considered by the learned Judge.
    
41. The decisions of Brian Michael Costello v The Controller of Civil Aviation (No 2) [1977] PNGLR 476 (Costello) and the New Zealand case of The Director of Civil Aviation v Air National Corporation Limited [2011] NZCA 3, referred to by the learned Judge in Sagati, do not permit a contrary conclusion. Neither case addressed the issues before this court which centre on the interpretation of s 312 of CAA.
    
42. The former case concerned a colour-blind pilot who failed a colour perception standard required for a first-class transport pilot’s licence. The Supreme Court dismissed the appeal finding that the onus was on the appellant to prove his eligibility for the licence, which he had failed to do. In the circumstances, the refusal of the Controller of Civil Aviation to grant a licence was held to be justified.
    
43. The latter case was an appeal against interim stay orders granted at a contested hearing against a decision to suspend the appellant’s AOC for 10 days. The New Zealand Court of Appeal considered the relevant provisions, including powers 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 interim stay was quashed on the facts, not by reason of an absence of jurisdiction, the court finding it had jurisdiction to grant an interim order for stay before the final determination of an application for judicial review under s 8 of the Judicature Amendment Act 1972 (NZ).
    
44. The scheme of the CAA underscored by its primary objects in s 2, makes clear the importance of safety, and it was a matter of overriding consideration for the learned Judge in Sagati. However, unlike the facts in Sagati, there is no persuasive evidence before this court that aviation safety would be compromised by a continuation of the stay. The evidence is to the contrary. That evidence is found in the evidence relied upon by both parties in the form of the affidavit of Captain Granger Narara filed 24 April 2024.
    
45. Captain Narara is the Chief Operating Officer of ANL responsible for overseeing ANL’s flight operations. His duties include overseeing the training and supervision of pilots, flight crew and ground staff. His expertise in aircraft operations is extensive and impressive. On his evidence he has over 40 years experience as an airline pilot, nationally and internationally. He is a person in whom the Chairman of the Board of ANL reposed sufficient confidence to appoint to oversee the office of CEO of ANL until further notice, before this Court stayed the Decision to revoke the status of Mr Seddon as a fit and proper person on 9 April 2024. The respondents take no issue with the appointment of Captain Narara to the position of CEO.
    
46. At [18] of Captain Narara’s affidavit he deposes as follows:
    

In my opinion the safety concerns raised by the Appellants (sic) in their letter dated 7 February 2023 even if they are valid which is denied, do not create any risk to the flight operations of ANL either in the period prior to the Appeal being heard and determined or even after the Appeal is determined.

Should a stay be granted?

47. Having concluded that the Court does have jurisdiction to grant a stay, the next question is whether it should, in the exercise of its discretion, do so.
    
48. In Mainland Holdings Ltd v. Paul Robert Stobbs (2003) N2522 Injia DCJ (as he then was) said:

In my view, the trial Court has wide discretionary powers to control the management of the case until its substantive disposition. In terms of its interlocutory proceedings, the Court has wide powers to grant or refuse to grant, vary or set aside, dissolve or discharge an interlocutory order either on application by an interested party or upon its own motion, in a wide range of situations.....

49. In Duma v Puk (2019) PGSC 1; SC 1754), the Supreme Court (Batari, Hartshorn and Murray JJ) citing with approval Gardner v. Jay (1885) 29 Ch 50 (at [59]) said at [13]:
    

...in determining whether a stay should be granted this Court must consider what is necessary to do justice in the circumstances of a particular case. There is no fetter on this Court's discretion apart from this consideration.

50. The principles governing the grant of a stay pending appeal have been considered in several well-known authorities in this jurisdiction (McHardy v Prosec Security & Communication Ltd [2000] PGSC 22; SC646; Bagari v Marape [2014] PGNC 321; N5897).
    
51. The respondents referred the Court to the decision of Ewasse Landowners Association Incorporated v Hargy Oil Palms Ltd [2005] PGNC 86; N2878 where Cannings J determined the application before him for an interim injunction by asking three questions:
    
    1. Are there serious questions to be tried? Does the plaintiff have an arguable case?

2. Does the balance of convenience favour granting the injunction?

100. Is an injunction necessary to do justice in the circumstances of this case?
     

52. The respondents chose to address only two issues so arising, namely balance of convenience and whether the continuation of the stay was necessary to do justice in the circumstances of case.
    
53. Having regard to the submissions made on behalf of the parties, in my view the principles relevant to the granting of a stay in this application which I shall proceed to consider are as follows:
    
    1. whether there has been a delay in making the application;
    2. possible hardship, inconvenience or prejudice to either party;
    100. the nature of the judgment or order sought to be stayed;
    4. a preliminary assessment about whether the applicant has an arguable case;
    5. whether on the face of the record of the order there may be indicated apparent error of law or procedure;
    6. whether damages would be a sufficient remedy;
    7. the overall interests of justice; and
    8. the balance of convenience.

Whether there has been a delay in making the application

54. There has been no delay, the Decision having been made on 21 March 2014.
    

Possible hardship, inconvenience or prejudice to either party

55. The Court finds that ANL, the National Carrier of PNG, is likely to suffer significant prejudice if a stay is not granted given that it has commenced a re-fleeting exercise to replace its current aging aircraft and given the significance of Mr Seddon’s involvement in those discussions. I do not propose to detail the evidence in this regard, save to note that it is comprehensive, the evidence of Mr Seddon supported by the evidence of Captain Narara and Mr Yalo as Chairman of the Board of ANL I accept that the re-fleeting of ANL is not only vital to the continued operations of ANL but an initiative that is in the national interest.
    
56. The Court accepts the submissions on behalf of the applicants, supported on the evidence, that as a consequence of the Decision, a refusal to continue the interim stay is likely to cause hardship, prejudice or inconvenience to ANL and the people of PNG. There is no corresponding disadvantage to the respondents if an interim stay is not continued.
    

57. Counsel for the respondents pressed in her oral and written submissions the overriding issue of the paramountcy of aviation safety which cannot be compromised for commercial gain. The Court accepts that submission. However the difficulty for the respondents is that they did not lead evidence as to how safety was being compromised in light of the evidence of Captain Narara who addressed the issue in detail in his affidavit at [17] to [22]. The court can only make decisions based on the evidence before it. It repeats and relies upon its earlier discussion of this issue, including Captain Narara’s evidence with respect to the safety concerns raised by the respondents. On his evidence there are no safety issues.

The nature of the judgment or order sought to be stayed

58. The applicants seek to stay an administrative decision by a regulator.

A preliminary assessment about whether the applicant has an arguable case

59. The Court accepts that the applicants have an arguable case for the reasons advanced on their behalf. Whilst the respondents did not accept all the grounds argued by the applicants, they conceded there was an arguable case and did not seek to be heard with respect to this consideration. The submissions advanced on behalf of the applicants prima facie present a strong substantive case on arguability.

Whether on the face of the record of the order there may be indicated apparent error of law or procedure

60. The court accepts that on the face of the record the Decision may indicate an error of law or procedure, including the asserted failure of the first respondent to address the criteria for fit and proper person test under s 50 of the CAA and by reason of the matters of complaint being disproportionate to and otherwise not justifying the Decision.

Whether damages would be a sufficient remedy

57. This is not a relevant consideration as damages are not an available remedy for losses caused by an invalid administrative decision that does not arise from a distinct cause of action (R v Secretary of State for Transport; ex parte Factortame Ltd & Ors (No. 2) (1990) UKHL 13; [1991] 1 AC 603 at page 672 per Lord Goff; R v Secretary of State for Foreign & Commonwealth Affairs ex parte Quark Fishing Ltd [2005] UKHL 57; [2006] 1 AC 529 per Baroness Hale at [96]).^[1]

The overall interests of justice

58. It is submitted on behalf of the respondents inter alia that the order of this court of 9 April 2024 was granted on an erroneous legal basis being in breach of the provisions of s 312 of CAA and that a continuation of the stay would not only cause an unnecessary injustice to the respondents but otherwise set a bad precedent. It is submitted that this is because every person who is required to hold an “aviation document” under the CAA may be able to apply for a stay of an adverse decision of the Director of CASA. However, this assumes that the provisions of s 312 create a statutory bar which preclude the appellants from seeking a stay, a proposition which this Court does not accept and that further, s 155(4) is not relevant to the question of stay.
    
59. The Court however acknowledges the concerns raised on behalf of the respondents that if the Court accepted that it had the power to grant a stay, then a too ready resort to doing so may undermine the legislative intent of the CAA on a matter of paramount importance to the national interest, namely aviation safety. It may create an incentive for appellants to seek a stay as a matter of course, opening a pandora’s box that cannot be closed. The Court accepts that this is a relevant consideration in the exercise of its discretion.
    
60. However, the granting of a stay is not an automatic right. It is a discretionary remedy. Each case must turn on its own facts. In this case the respondents do not challenge that there is a serious question to be tried on appeal. Nor do the facts here involve a colour blind pilot seeking a first-class pilot’s licence adducing no evidence he could meet the necessary colour perception standard (as was the case in Costello), or the failure of a charter business following a crash to comply with the standards of an investigation report (as was the case in Sagati). Nor do the facts of this case involve evidence of the falsification of significant records by the applicants (as was the case in Director of Civil Aviation v Air National Corporation Limited (supra)).
    
61. It is trite to observe that commercial considerations should be secondary to ensuring aviation safety. In this case the Decision arose out of an audit, less than a year after Mr Seddon had been declared to be a fit and proper person. On the evidence of Mr Seddon each of the complaints were addressed and a detailed response sent to CASA. For example, with respect to the complaint of CASA that the organisational structure was outdated, in response, Mr Seddon noted that there were constant changes to the organisational structure of ANL during the year 2023 with the death and/or termination of senior staff involving a decision to capture these changes in a Corporate Policy and Procedures Manual of ANL on completion of its Annual Manual Review on 30 November of each year with staff notified of the changes in the meantime by email to mitigate the risk of disconnect in the organisation whilst the relevant documents were amended. The audit was conducted prior to the Annual Manual Review and 30 November 2023. Mr Yalo, Chair of the Board of ANL gives evidence of the need to restructure the senior management team and recruit experts with qualifications and experience to meet safety compliance and the fleet replacement program which on his evidence has been a ‘massive’ undertaking.
    
62. Whether the response of the respondents individually or collectively to the matters of complaint in their Notice was punitive and/or disproportionate as asserted by the plaintiffs will be a matter for consideration at another time, however on the evidence of Captain Navara, not challenged by the respondents, all concerns raised by the respondents concerning the organisational structure of ANL have now been rectified and even if the concerns had been valid, they do not create a risk to the flight operations of ANL between now and the determination of the appeal. It was a question posed by the court and explored on the adjourned hearing of this matter on 15 April 2024 at which time the matter was stood down and agreed assurances received from the parties.
    
63. In his affidavit filed 16 April 2024 Mr Oraka, the Director of CASA, deposes to an adverse safety trend over the ensuing 12 months which based on the swearing date of his affidavit would cover the period between 13 April 2023 and 13 April 2024. However, the annexures to his affidavit reveal:
    
    1. No communication between CASA and the Chair of the Board of ANL re safety concerns since 15 March 2023
    2. No notices of suspension by CASA directed to pilots since 6 April 2023;
    100. No safety investigation reports conducted since 19 May 2023.
64. Relevantly, no notices of infringement have been issued by CASA to ANL since 24 November 2023, which notices arose from the audit.
    
65. The respondents had an opportunity to place evidence before this Court in relation to any further ongoing concerns, non-compliance with the audit or further breaches and/or unaddressed concerns since the audit. The further affidavit of Mr Oraka sworn on 18 April 2024 and filed on 19 April 2024 raises no concerns. Nor was further evidence in that regard placed before the Court between 19 April and the hearing of this matter on 5 June 2024.
    
66. Having concluded that the Court has the power to continue the stay and having carefully considered the submissions advanced on behalf of the respondents on safety and the evidence filed by the respondents in support for the reasons discussed the overall interests of justice, on balance, support the continuation of the stay with Mr Seddon as CEO during this critical time for the ANL.
    

The balance of convenience

67. It is submitted on behalf of the respondents that the balance of convenience does not favour the continuation of the stay. It is submitted that Captain Navara has been appointed to oversee the Office of the CEO pending further notice and that this change is a relevant factor that renders the earlier stay unnecessary. The respondents otherwise raise as relevant factors under this consideration safety issues and other matters that have been earlier addressed in these reasons.
    
68. The Court repeats and relies upon its earlier discussion relevant to this consideration. Given that:
    
    1. There is no persuasive evidence that the safety concerns that gave rise to the Decision have not been addressed and the concerns of the first respondent continue to give rise to a level of safety concern that places the public at risk;
    2. the importance of the re-fleeting negotiations currently under way in which Mr Seddon has taken a lead and which involves replacement of aging aircraft;
    100. Mr Seddon’s education, skills and employment history as evidenced by his resume being Annexure GS-2 to his affidavit filed 9 April 2024;
    4. Mr Seddon retaining the support of the Board of ANL, the Chair of the Board, Mr Yalo, deposing to the confidence and trust Mr Seddon has also gained with aircraft manufacturers, aircraft lessors and debt funders and the potential impact of a CEO change may have on that trust (“relationships that are hard won and easily lost’), particularly, on his evidence, given the impact of changed domestic circumstances had on those relationships due to the events in Port Moresby on 10 January 2024 ((at [20] – [21] of his affidavit filed 24 April 2024);
    5. the evidence of Captain Narara that he has no experience or background in aircraft financing or leasing, issues relevant to the re-fleeting negotiations, and
    6. the evidence of Captain Narara and/or Mr Yalo that re-fleeting is critical to the operations of ANL, involving safety considerations to do with the retirement of aircraft past their life, an exercise that must be undertaken as soon as possible given global supply issues, a process of national interest given that it involves an essential service; and
    7. the appeal can be expedited

the balance of convenience favours the granting of a stay.

CONCLUSION AND ORDERS

69. In the result the Court considers that the interim stay should continue pending hearing and determination of the Appeal or earlier order.
    
70. The appeal to this Court should be expedited. The Court invites draft directions to that end.
    
71. Costs will be in the cause
    
72. Time to abridge

________________________________________________________________
Ashurst PNG: Lawyers for the Plaintiffs
Acting Solicitor General: Lawyer for the Defendants

^[1] The court was unable to find the decision of Consort Express Lines Limited v Marat (unreported and unnumbered, Davani J, 27 March 2009, OS 105 of 2009 JR) referred to by Counsel for the Plaintiffs as a decision that cited these authorities)