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Court of Appeal of Fiji |
IN THE COURT OF APPEAL, FIJI
[On Appeal from the High Court]
CIVIL APPEAL NO. ABU0047 OF 2022
[Lautoka High Court Action No: HBJ 5 of 2022]
BETWEEN:
1. TIMOTHY JOHN JOYCE
2. SUNFLOWER AVIATION PTE LIMITED
3. JOYCE AVIATION (FIJI) PTE LIMITED
t/a HELI TOURS FIJI
Appellants
AND:
1. CIVIL AVIATION AUTHORITY OF FIJI
2. JIM SAMSON
Respondents
Coram: Prematilaka, RJA
Qetaki, JA
Heath, JA
Counsel: Ms Saumaki K. for the Appellants
Mr Singh R. for the Respondents
Date of Hearing : 2 July, 2024
Date of Judgment : 26 July, 2024
JUDGMENT
Prematilaka, RJA
[1] I agree with the judgment and the proposed orders of Qetaki, JA.
Qetaki, JA
Background
[2] This appeal has been brought by the Appellant against the interlocutory Judgment of the Honourable Justice Tuilevuka delivered on 9th August 2022 in the High Court at Lautoka, where it was ordered as follows:
(a) Leave to apply for Judicial Review pursuant refused;
(b) Summons for Stay Pending the determination of the Judicial Review Application refused;
(c) Costs to the Respondents which I summarily assess at $3000 (three thousand dollars only).
[3] Leave to appeal the said Judgment was granted on 16th August 2022, and the Notice of Appeal was filed by the Appellants on 18th August 2022.The Appellants now claim the following reliefs:
Facts
[4] The facts set out below are extracted from the Affidavit sworn by Timothy John Joyce on 2nd May 2022(pages 46 to 143 of Record) of the High Court, Volume 1, which is summarised in paragraph 2.1 (a) to (n) in the Appellants’ Submissions in support of The Appeal:
(a) The 1st named Appellant is the Chief Executive Officer, Shareholder and Pilot of the Applicant companies. The Appellant companies carry on the business of providing air transport, medical evacuation, recreation and other air services for the public and tourists from Nadi Airport.
(b) The 1st Respondent is the regulator of the civil aviation operations in Fiji and the 2nd Respondent is the Controller of Air Safety who, amongst other things is responsible to the Chief Executive for the leadership and management of the CAAF Air Safety Department (ASD). The ASD is responsible for the safety oversight of all aircraft operations and aircraft operators and aircraft maintenance organisations in Fiji.
(c) On or about 29th December 2021, the Appellant Company Sunflower Aviation Pte Limited (SAL) applied for the renewal of its Air Operations Certificate (AOC). The other Appellant company, Heli-Tours applied for the renewal of its AOC on 26th March 2021. An AOC authorises an operator to amongst other things, conduct aerial work, charter operations and public transport operations.
(d) A part of the AOC renewal process is to nominate Chief pilot which, in tis case was the 1st named Appellant. This is a new requirement introduced since 28th March 2019 by the 1st Respondent, under which every nominated post holder positions within a Company including a Chief pilot must satisfy the “Fit and Proper Person “ requirement set out in 1st Respondent’s Standard Document-Air Operators’ Certificate and in the Fiji Aeronautical Information Circular (AIC 09/18).This new requirement is not expressly provided in the relevant legislations namely Civil Aviation Authority of Fiji (CAAF) Act and/or the Air navigation Regulations (ANR).
(e) On about 29th December 2021, the Appellant companies Accountable Manager, Mr Paul Hilton, submitted fit and proper applications including the first named Appellant’s application to the 2nd Respondent for assessment.
(f) The fit and proper interview was also intended to assess the appellant’s Check and Training Approval which had been refused by the first Respondent’s officer, John Slater, in 2020 and since then, the Appellant’s had been requesting for a reassessment.
(g) Prior to the schedule interview, the First Named Appellant wrote to the current Chief Executive (CE) of the First Respondent objecting to Mr Slater and others who have shown bias against them. Although the 1st Named Appellant did not name the other officers, the CE was already aware of that these officers included the 2nd respondent due to the number of complaints lodged with her, the pending court cases, judicial reviews and incidents involving these officers. The 2nd Respondent who was a former employee of the Appellants, had been terminated for gross misconduct.
(h) The 1st Named Appellant attended the interview on 28th January 2022 at around 9:00am at the 1st Respondent’s headquarters. The interview was chaired by the 2nd Respondent along with 3 others namely Captain Sakaraia Bolanavatu, Mr Jasmel Singh, Mr Makiti Raratabu.
(i) On 10th February 2022, the 2nd Respondent by way of a letter advised that the interview was unsuccessful. No other reason or details were given in the letter.
(j) On 11th February 2922, the 2nd Respondent sent another letter advising that the Appellant companies had 7 days to appoint a new Chief Pilot.
(k) It was impossible to locate suitable pilots for the role in such short notice. However, in order to stop the Appellant companies from shutting down and to mitigate their losses, the Appellants temporarily nominated Captain Kete as Chief Pilot for SAL who was the flying instructor of the Appellants related company, Pacific Flying School. As for Heli-Tours, the Respondents accepted Mr Paul Hilton to temporarily act as Chief Pilot even though he did not have the requisite pilot license. However, the Respondents refused to accept the 1st Named Appellant to temporarily retain the Chief Pilot positions until a suitable pilot was located.
(l) The steps taken were to avoid SAL and Heli-Tours from shutting down. It was only a temporary solution.
(m) The decisions of 10th and 11th February 2022 were under challenge.
[5] An alternative version of the facts, are set out in paragraph 4 (a) to (l) of Justice Tuilevuka’s Ruling delivered on 9th August 2022.
High Court
[6] In brief, the following grounds of review were filed before the High Court:
(a) The Standard document-Air Operators Certificate purportedly made, issued and published by the Chief Executive Officer of the First Respondent pursuant to section 14(3) (b) of the Civil Aviation Authority of Fiji Act, the Aeronautical Information Circular (AIC 02/19), Accountable Manager Nominated Post Holders for Operations with an AOC or 145 Approval, for the requirement to assess the fit and proper status of nominated post holders including the position of Chief Pilot, for the purpose of issuing and/or renewing an Air Operators Certificate and the Respondents subsequent decisions dated 10th and 11th February 2022, are ultra vires, and unlawful..” (Followed by a list (i) to (iv) of purported ultra vires situation);
(b) The Respondents decision dated 10th and 11th February 2022 were made in breach of the principles of natural justice, procedural impropriety and in breach of section 16 of the Constitution, inter alia as: (List (i) to(vii) of specific instances);
(c) The Respondents failed to consider relevant factors and took into account irrelevant factors pertinent to the issues inter alia including (Itemised examples (i) to (iii));
(d) The Respondent’s decision are biased and/or predetermined and not made independently and/or after independent enquiry inter alia as: (List of specific instances in (i) to (v);
(e) The Respondents decision dated 10th and 11th February 2022 were unreasonable, arbitrary, irrational disproportionate and improperly made.
(f) The Respondents failed to consult the Applicants, other aviation document holders and/or operators prior to making, issuing and publishing the Standard document-Air Operators Certificate and Aeronautical Information Circular (AIC) 02/19),Accountable Manager Nominated Post Holders for Operators (AOC or 145 approval).
(g) The Learned judge was satisfied that the grounds of review submitted by the Applicants were arguable. His Lordship dismissed the leave for judicial review solely on the basis of the purported alternative remedy under section 12F of the CAAT Act.
Grounds of Appeal:
[7] The Grounds of Appeal filed with the Notice of Appeal dated 18 August 2022 are as follows:
Ground 1-The learned judge erred in law and in fact by holding that the Respondent’s decisions dated 10th and 11th February 2022 are subject to appeal under section 12 F when:
(i) the decision under challenge specifically related to the fit and proper interview for the position of a Chief Pilot and the Check and Training Approval;
(ii) the fit and proper interview for the position of Chief Pilot and the Check and Training Approval were not “aviation documents” within the meaning provided under section 2 of the Air Navigation Regulations;
(iii) the Respondents purported imposition, requirement and adopted process/procedure relating to the fit and proper interview for the position of a Chief Pilot and the Check and Training Approval was not recognised, prescribed and/or required under the Act or regulations;
(iv) in the circumstances section 12F did not apply to the Respondent’s decisions, such that it lead the Learned Judge to erroneously refuse leave to apply for Judicial Review on the basis there was an alternative remedy available under section 12F to the Appellants.
Ground 2-The Learned Judge erred in law and in fact by applying Air Nelson Limited v Neil, 28 October 2008, New Zealand Employment Court and holding that the Respondents decisions were in respect of “aviation documents” (and therefore subject to an appeal under section 12f) when:
(i) the authority relied upon was inapplicable, distinguishable and otherwise irrelevant to the circumstances of the present case;
(ii) the definition of ‘’aviation documents’’ are unambiguous and expressly provided at section 2 of the Air navigation Regulations;
(iii) the decision to supplement and/or create and/or include further definition of “aviation document” by the Learned Judge was ultra vires and unlawful as the power for such an act is prescribed in the relevant Civil Aviation Acts and Regulations in Fiji; and therefore, in the circumstances, the Court had exceeded its jurisdiction, such that it caused a miscarriage of justice and an abuse of its powers.
Ground 3-The Learned Judge contradicted himself by conceding during the hearing on the 9th August 2022 that the Appellant had “arguable’’ grounds for judicial review but then went on to dismiss the Appellant’s application for leave for judicial review on the basis that there was no exceptional circumstances to overcome the alternative remedy of appeal when in fact the grounds of judicial review submitted by the Appellants were in support of, and were to establish, that there were exceptional circumstances, which included, inter alia, grounds relating to the legality of the Standard documents, Aeronautical Information Circulars, fit and proper requirements and unconstitutionality of section 12F.
Ground 4-The Learned Judge erred in law and in fact by failing to consider and/or provide any reasons whatsoever on the evidence and authorities in respect of “exceptional circumstances’’ in respect of not pursuing the alternative remedy when:
(i) the Learned Judge had deferred the hearing of the Appellant’s application for leave for judicial review on 17th June 2022 and had specifically directed the parties to provide written submissions (with supporting authorities) on matters that constituted “exceptional circumstances’’;
(ii) the Appellants did in fact provide relevant authorities and evidence in support of its contention that there were “exceptional circumstances” in the present case by way of written submissions filed on 5th July 2022;
(iii) the exceptional circumstances submitted by the Appellants rendered the appeal under section 12F of the Civil Aviation Authority of Fiji Act impractical, inefficient and/or inadequate;
(iv) the Respondent Counsel had conceded during the hearing on 21st July 2022 that a breach of natural justice on the ground of bias (a ground in fact relied on by the Appellants) would constitute ‘’exceptional circumstances”, and in the circumstances, led the Learned Judge to erroneously refuse leave for judicial review.
Ground 5-The Learned Judge erred in law and in fact by implying the powers of the Chief Executive Officer on appeal under section 12F at paragraphs 39 and 40 of his Lordship’s decision in the absence of any prescribed powers in the relevant Civil Aviation Acts or Regulations.
Ground 6-The Learned Judge erred in law and in fact by awarding costs against the Appellants which in the circumstances of this case, was unreasonable and/or excessive.
[8] Section 12(1) (a) of the Act, in Part 111 Appeals in Civil Cases, states “an appeal shall lie under this Part in any case or matter, not being criminal proceedings, to the Court of Appeal-
(a) from any decision of the High Court sitting in first instance, including any decision of a judge in chambers;”
[9] Section 13 of the Act spells out the powers of the Court in civil appeals:
“13. For all purposes of an incidental to the hearing and determination of any appeal under this Part and the amendment, execution and enforcement of any order, judgment or decision made thereon, the Court of Appeal shall have all the power, authority and jurisdiction of the High Court and such power and authority as may be prescribed by rules of Court,”
[10] Discretionary power of the Court is specified in section 17 of the Act:
“17. Nothwithstanding anything hereinbefore contained, the Court of Appeal may entertain any appeal made under the provisions of this Part on any terms which it thinks just.”
Submissions By the Parties
[11] The Appellants filed their written submissions in support of the appeal on 05 June 2023.The Appellants’ submissions in reply was filed on 22 April 2024.These were comprehensive submissions on behalf of the 3 named Appellants on their grounds of appeal.
[12] The Respondents filed their written submissions on 07 July 2023.These also were comprehensive submissions on behalf of both the Respondents.
[13] On the day of the hearing, the Parties had filed in the Court Registry a Terms of Settlement date 2nd July 2024 signed by Messrs AK Lawyers, Solicitors for the Appellants and Messrs Patel & Sharma, Solicitors for the Respondents.
Terms of Settlement
[14] On the agreement of the parties through their Counsel, the Court has adopted the Terms of Settlement in this Judgment, and the Court will also consider making an Order or Orders to ensure he Terms of Settlement between them are enforceable. The Terms of Settlement:
“Terms of Settlement
(1) Whereas the Civil Aviation Authority of Fiji (Authority), the 1st respondent is established by section 3 of the Civil Aviation Authority Act of Fiji 1979.
(2) Whereas the Appellants are operators and who provide aviation services to the public in the domestic market.
(3) Whereas it is a requirement under the Standard Document-Air Operators Certificate of Competency section 1.2 and the Fiji Aeronautical Information Circular (AIC) No. 09 of 2018 that an aviation operator must have an approved Chief Pilot. The Authority will approve the Chief Pilot for a Person when it is satisfied through the Fit and Proper Person process that the incumbent is competent to hold such a position.
(4) Whereas to obtain the required approval to be appointed as the Chief Pilot of the 2nd and 3rd Named Appellants the 1st Appellant underwent a Fit and Proper Person assessment with the 2nd Respondent on the 28th January 2022.
(5) Whereas the 1st Appellant was not successful in his Fit and Proper Person assessment conducted by the 2nd Respondent and filed the substantial judicial review proceeding with the High Court of Fiji challenging that decision on the grounds as stipulated in the said application.
(6) Whereas the High Court has refused leave, and the Appellants bring this appeal from the said decision delivered on the 9 August 2022.
(7) Whereas the parties with a view to resolving the within appeal agree, as follows;
7.1 That the 1st Appellant shall apply with the 1st Respondent for a reassessment of the position of the Chief Pilot of the 2nd and 3rd named Appellants.
7.2 That the 1st respondent shall accept such an application and process the same in the normal manner and appoint a date for the 1st Appellant to undergo the Fit and Proper Person assessment.
7.3 That the 1st Respondent shall endeavour to process and have the 1st Appellant undergo the Fit and Proper Person assessment before a panel that did not hear his original application within 30 days from the date of any application for re-assessment made by the 1st Appellant.
7.4 That the 1st Respondent does not guarantee to the 1st Appellant that he will be deemed Fit and Proper. The 1st Appellant’s Fit and Proper determination will be based upon his performance and assessment before the new panel.
7.5 The parties acknowledge that Mr George Tudreu, the former Controller Air Safety and current Board Member of the 1st Respondent has already permanently recursed himself and is hereby recused from Board deliberations regarding this matter.
7.6 That the settlement herein is without admission of liability by the Respondents or the Appellants and is in full and final settlement of all claims, demands, right or interests of the Appellants.
7.7 That the Appellants and the Respondents agree to bear their own costs.
7.8 That the parties undertake to maintain confidentiality ia all matters pertaining to this settlement. Neither party without the other party’s consent shall disclose such terms to any third party for any purpose except to their legal advisers for the purpose of obtaining legal advice or if required by law.
7.9 That this Terms of Settlement may be pleaded by the Respondents as a bar to any demand, action, suit, proceedings, compensation, damages, interest, losses, costs or whatsoever nature, now or hereafter threatened, existing, made or brought against the Respondents which the Appellants or any other person entitled to claim through it (under statute or otherwise) has, may have, had or may in future have against the Respondents in respect of all matters relating to and arising from this action.
7.10 That each and every provision herein shall inure to the benefit of, and be binding upon the personal representatives and all other successors and assigns of each party.
7.11 That the terms herein shall be made orders of the Court and the Appellants or the Respondents may apply to the Court to enforce or implement any of the obligations given by one party to the other in respect of the Terms of Settlement including any rights accruing thereunder and the legal costs, disbursements and VAT for issuing such proceedings and the final determination thereof (including appeals to the Court of Appeal and the Supreme Court) shall be borne by the defaulting Party on an indemnity basis.”
[15] In view of the Terms of Settlement, the appeal is dismissed, subject to the Orders of the Court.
Heath, JA
[16] Because this Court has not inquired into the merits of the appeal, I agree that a consent order should be made in terms of para.7.11 of the Terms of Settlement, to give effect to the parties intentions.
Orders of the Court:
Hon. Justice Chandana Prematilaka
RESIDENT JUSTICE OF APPEAL
Hon. Justice Alipate Qetaki
JUSTICE OF APPEAL
Hon. Justice Paul Heath
JUSTICE OF APPEAL
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