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Papua New Guinea Air Pilots Association v Director of Civil Aviation and National Airline Commission, trading as Air Niugini [1983] PGNC 43; [1983] PNGLR 1; N399 (7 January 1983)

N399

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

PAPUA NEW GUINEA AIR PILOTS ASSOCIATION

V

THE DIRECTOR OF CIVIL AVIATION AND THE
NATIONAL AIRLINE COMMISSION TRADING AS AIR NIUGINI

Waigani
Andrew J

12-16 July 1982
7 January 1983

PRACTICE AND PROCEDURE - Declaratory orders - Locus standi - Principles - Locus standi of Air Pilots Association to intervene between Director of Civil Aviation and Air Niugini.

CIVIL AVIATION - Regulation of air navigation - Licensing of aerodromes - Safety requirements and standards - Powers of Director of Civil Aviation - Effect of standard and recommendations of the Chicago Convention - Effect of ratification of Convention by Papua New Guinea - Civil Aviation Act 1979 - Civil Aviation Act (Ch. No. 239).

By order purporting to be made under the Civil Aviation Act 1979, the Director of Civil Aviation approved the operation of Fokker F.28 aircraft on regular internal services into and out of Rabaul airport. The Papua New Guinea Airline Pilots Association sought to intervene between the Director and the employer of the Association’s members by seeking declaratory orders that the Director had exceeded his powers under the Act and that certain safety requirements and standards at the airport had not been met, in that they did not comply with international standards, set down in the Chicago Convention on International Civil Aviation of 1944 to which the Act gives effect.

Held:

(1) Depending on the nature of the relief which he seeks, a plaintiff will have locus standi where he can show actual or apprehended injury or damage to his property or proprietary rights, to his business or economic interests and, perhaps, to his social or political interests.

Australian Conservation Foundation Inc. v. The Commonwealth of Australia (1980) 146 C.L.R. 493; 54 A.L.JR. 176, and Robinson v. The Western Australian Museum (1977) 138 C.L.R. 283 at 327-328; 51 A.L.JR. 806 at 824, applied.

(2) The Papua New Guinea Air Pilots Association, an industrial association of air pilots, the objects of which include improving, protecting and fostering the best interests of all members by any means consistent with the law of Papua New Guinea, had locus standi to seek the relief sought.

(3) The Chicago Convention of 1944 is an international agreement concerned with the development of international civil aviation including the establishment of international air transport services: being a treaty among States it does not directly create rights inuring to or duties incumbent on nationals of the particular States.

(4) The fact that the Convention is adopted in the schedule to the Civil Aviation Act 1979 (Ch. No. 239) does not for that reason alone, give it any greater authority than it would otherwise have.

(5) The articles of the Convention are standards and recommendations only and the obligation on each member State (including Papua New Guinea) is to endeavour, to the greatest possible extent, to keep them uniform.

Airlines of New South Wales Pty. Ltd. v. New South Wales [1965] HCA 3; (1965) 113 C.L.R. 54 at 86, 87, applied.

(6) Accordingly, the Director was not bound, nor could he be compelled, to give strict effect to the articles of the Convention, and in the particular circumstances had not exceeded his powers under the Act, and the orders sought should not be made.

Cases Cited:

Airlines of N.S.W. Pty. Ltd. v New South Wales (No. 2)(1965) [1965] HCA 3; 113 C.L.R. 54.
Australian Conservation Foundation Inc. v. Commonwealth of Australia (1980) 146 C.L.R. 493; 54 A.L.JR. 176.
Costello v. The Controller of Civil Aviation (No. 2) [1977] P.N.G.L.R. 476.
Robinson v. The Western Australian Museum (1977) 138 C.L.R. 283; 51 A.L.JR. 806.

Application

This was an application for declaratory orders in respect of the Director of Civil Aviation.

Counsel:

I. Molloy, for the applicant.
A. Mullumby, for the first respondent (the Director of Civil Aviation).
I. Shephard and L. Acanufa, for the second respondent (Air Niugini).
Cur. adv. vult.

7 January 1983

ANDREW J: This is an application by the Papua New Guinea Air Pilots Association (the Association) seeking declaratory orders that the Director of Civil Aviation has exceeded the powers given to him under the Civil Aviation Act 1979 by an order dated 8 June 1982, wherein the Director approved the operation of Fokker F.28 aircraft on regular transport services to and from Rabaul airport. Judgment was delivered in Port Moresby on 16 July 1982, as the matter was urgent and of national importance and reasons were reserved. The full judgment is now published.

The first question raised by the application is whether the Association has locus standi to maintain the action. The Air Pilots Association is an industrial association whose members include, inter alia, all the pilots employed with Air Niugini. Its objects include the following:

(a) To improve, protect and foster the best interests of all members by any means consistent with the provisions of the law of Papua New Guinea.

(b) To secure redress for any grievance had or injustice suffered by any member in relation to his employment.

...

(j) To arrange for and procure for the Union or its members on such terms as the Union shall deem fit all such legal advice, expert opinion, assistance and help in connection with any matters or in defending or prosecuting the rights of members providing that such legal advice expert opinion, assistance and help is not contrary to any law of Papua New Guinea.

The Association alleges that, in a number of respects the Director of Civil Aviation has exceeded the powers given to him under the Civil Aviation Act and that certain safety requirements and standards at Rabaul aerodrome have not been met. It seeks declarations to that effect, and, in particular that the Director’s order of 8 June 1982, approving the operation of Fokker F.28 aircraft on regular passenger transport services to Rabaul, is invalid and of no effect.

Before the association is entitled to such a declaration it must have locus standi; that is a right to appear and ask for such an order and a condition precedent to the possession of locus standi is that the claimant must have a substantial interest in the subject matter of the dispute of a kind which the Court recognizes.

It is said, on behalf of the Director, that the purpose and intent of the objects of the Association involve matters such as the terms and conditions of the members and that it is stretching the objects of the association too far to allow it to have standing in a matter such as this whereby it seeks to intervene between the Director and the employer of the Association’s members, namely Air Niugini. But depending on the nature of the relief which he seeks, a plaintiff will in general have a locus standi when he can show actual or apprehended injury or damage to his property or proprietary rights, to his business or economic interests and perhaps to his social or political interests (per Mason J in Australian Conservation Foundation Inc. v. Commonwealth of Australia (1980) 146 C.L.R. 493; 54 A.L.JR. 176), and as his Honour said in Robinson v. The Western Australian Museum (1977) 138 C.L.R. 283 at 327-328:

"The cases are infinitely various and so much depends in a given case on the nature of the relief which is sought, for what is a sufficient interest in one case may be less than sufficient in another."

I think it is relevant that all captains and first officers flying Fokker F.28 aircraft are members of the Association and all may be required to fly to and from Rabaul. In my opinion the objects of the Association are broad enough to reveal a "sufficient interest" — in particular object (a) "to improve, protect and foster the best interest of all members by any means consistent with the law of Papua New Guinea" and that the Association is entitled to bring legal proceedings. In addition the members of the Association obviously have a "real interest" as the matter involves economic, contractual and other interests affecting their livelihoods and day-to-day working lives.

I find that the Association has a locus standi to apply for the relief sought.

What is said by the applicant Association in this case is that under the Civil Aviation Act 1979 there is established the office of Director of Civil Aviation who is charged with the administration of the Act. The Act gives effect to the Chicago Convention of 1944 which sets down certain standards, inter alia, in relation to the dimensions of aerodromes and it is said that as Rabaul aerodrome does not meet these international standards, the Director has accordingly failed to give effect to the Convention and that he exceeded his powers under the Act when he approved the operation of Fokker F.28 aircraft on regular passenger transport services to Rabaul.

The Director’s powers to license aerodromes and to authorize places for use as aerodromes are contained in regs. 82, 83 and 86 of the Civil Aviation Regulation 1975 and are as follows:

"82. Licencing of aerodromes

(1) Upon application by the proprietor of any place, the Controller may issue to him an aerodrome licence authorising the use of the place as an aerodrome.

(2) An aerodrome licence shall be issued subject to such conditions as the Controller considers necessary to ensure compliance with the Convention and the safety of aircraft using the aerodrome.

..."

"83. Authorization of places for use as aerodromes

Subject to this regulation, the Controller may, by specific or general description authorise the use of any place as an aerodrome for the purposes of the landing and taking off of such types of aircraft, engaged in such classes of operations, and subject to such conditions as the Controller specifies on the instrument of authorization."

"86. Use of aerodromes, etc

(1) An aircraft shall not land at, or take-off from any place unless:

(a) the place is an aerodrome established under this part; or

(b) the use of the place as an aerodrome is authorised by a licence granted under s. 82; or

(c) the use of the place as an aerodrome is authorised by the Controller under s. 83 and:

(i) the aircraft is of a type of aircraft authorised under that section to land and take-off from the place; and

(ii) the aircraft is engaged in operations included in a class of operations specified by the Controller in the instrument of authorisation under that section that relates to the place; and

(iii) any conditions specified in that instrument of authorisation are complied with.

(2) The Controller may, in relation to any aerodrome, air route or airway facility, air route or airway licenced, authorised established or designated under this Part, issue such directions as he considers necessary to ensure the safety of aircraft and compliance with the standards, recommended practices and procedures adopted from time to time by virtue of the Convention."

The office of Controller is now that of the Director of Civil Aviation.

The Chicago Convention on International Civil Aviation (concluded on 7 December 1944) and the International Civil Aviation Organisation (I.C.A.O.) are intended to provide the institutional framework for international civil aviation. Parties to the Convention are ipso jure members of I.C.A.O. and the procedures, therefore, for becoming and ceasing to be parties to the Convention are the same as those for becoming and ceasing to be members of I.C.A.O.

Papua New Guinea ratified the Chicago Convention on 15 December 1975, and is a member of I.C.A.O. (see Costello v. The Controller of Civil Aviation (No. 2)[1977] P.N.G.L.R. 476).

The Convention, as its title and preamble as well as its contents show, is an international agreement concerned with the development of international civil aviation, including the establishment of international air transport services, and is contained in the schedule to the Revised Laws, Civil Aviation Act, (Ch. No. 239).

The "air navigation" dealt with in Pt 1 thereof is a broad conception going far beyond what might be called "aeronautics". It covers, inter alia, the operation of international air services and all that is thereby incidentally involved, including such matters as sabotage, immigration and customs procedures and the prevention or spread of disease. The provisions of the Convention, moreover are not confined to international civil aviation and international air transport services. A number of illustrations may be given. For instance, by art. 12, each contracting State undertakes "to adopt measures to ensure that every aircraft flying over or manoeuvring within its territory... shall comply with the rules and regulations relating to the flight and manoeuvre of aircraft there in force" and "to keep its own regulations in these respects uniform, to the greatest possible extent, with those established from time to time under this Convention". By art. 14 each contracting State agrees to take effective measures to prevent the spread of named diseases by means of air navigation. By art. 15 "every airport in a contracting State which is open to public use by its national aircraft shall likewise... be open under uniform conditions to the aircraft of all the other contracting States". By arts. 17 to 21 each contracting State undertakes to maintain a register of its national aircraft. By arts. 25 and 26 provision is made for assistance to aircraft in distress and for the investigation of accidents whether or not the aircraft concerned are engaged in international civil aviation. Among the undertakings in art. 28 is the provision of navigation facilities "to facilitate international air navigation, in accordance with the standards and practices recommended or established from time to time, pursuant to this Convention" (see per Menzies J in Airlines of New South Wales Pty. Ltd. v. New South Wales (No. 2)(1965) [1965] HCA 3; 113 C.L.R. 54 at 137).

The principal method to achieve international standardization of civil aviation is through the procedures of I.C.A.O. under which fifteen annexes to the Chicago Convention have been adopted. The most important for present purposes is annex 14 — "Aerodromes" and in particular Ch. 4 thereof — "Obstacle Restriction and Removal".

There is no real dispute in this case that Rabaul aerodrome does not meet all the recommendations of annex 14 for a Category "C" aerodrome (Rabaul being Category "C"). The main complaint is that coconut trees encroach within the recommended distance from the runway and also encroach on airspace. There is also no dispute that the Department of Civil Aviation has attempted to purchase land adjoining the airport in an attempt to have trees removed but could not reach agreement with local land owners.

In technical terms the obstacle requirements (for present purposes for non-instrument runways) are established as various surfaces around the aerodrome as follows:

Conical surface

Inner horizontal surface

Approach surface

Transitional surface.

The requirements for such obstacle limitation surfaces (as per annex 14) are specified on the basis of the intended use of a runway, that is, take-off or landing and type of approach, and are intended to be applied when such use is made of the runway. The Association claims various infringements of those surfaces by both the coconut trees and by terrain as applicable to the operation of a Fokker F.28 aircraft. I do not set out all of these alleged infringements as they are mostly technical but I think it is sufficient to repeat that the real complaint is the vicinity of the coconut trees.

Mr Molloy, counsel for the association, in support of his motion for a declaration that the Director has exceeded his powers in approving these operations points to the Civil Aviation Act 1979 and submits (as I understand his submissions) that by virtue of s. 18(1) and s. 18(2) of the Act the Head of State, acting on advice may carry out and give effect to the Chicago Convention and the annexes thereto and by s. 7(2) the Head of State may publish any agreement, arrangement or contract with any international organization in relation to any matter pertaining to civil aviation and it shall then have the force of law as if contained in the Act. As the Chicago Convention is so published in the Revised Laws (Ch. No. 239), he submits that the Director is bound to give effect to the Convention — the Director being charged with the administration of the Civil Aviation Act (see s. 6). And further, that as the Convention has the force of law, then the proper standard or class of aerodrome applicable must be at least a Category "C" aerodrome and because of the alleged infringements Rabaul aerodrome does not come up to the standard of Category "C". Thus it is submitted, the authorization of Rabaul airport for regular use of Fokker F.28 aircraft is in excess of the powers given to the Director under the Civil Aviation Act.

The Chicago Convention, being a treaty among States, does not directly create rights inuring to or duties incumbent on their nationals. The rights and duties it establishes are those of the contracting States.

I think the first difficulty that the Association faces is that Rabaul aerodrome is not an international airport and the licensing of Rabaul aerodrome for Fokker F.28 aircraft is for purely internal flights, the licence being issued under Papua New Guinea’s municipal law as opposed to any international law. Papua New Guinea’s international airports are Daru, Kieta, Momote, Port Moresby, Vanimo and Wewak (as contained in Aeronautical Information Publication AGA-1-1 of 9 July 1981).

It is true, as already indicated, that the Chicago Convention is not confined solely to international civil aviation. But the extent to which it is binding upon the municipal law has been described as a "legal minefield". I think that much assistance can be gained from the well-known passage of Barwick C.J in Airlines of N.S.W. Pty. Ltd. v. New South Wales, (No. 2) (supra at 86-87):

"An examination of the Convention clearly shows in my opinion that the relevant obligation cast upon Australia is to endeavour to achieve ‘uniformity of regulations, standards, practices, procedures and organization in relation to aircraft personnel, airways and auxiliary services in all matters in which such uniformity will facilitate and improve air navigation’. While the object of achieving this uniformity is the safety and orderly growth of civil aviation throughout the world, there is no general obligation expressly imposed by the Treaty upon its adherents to achieve the safety or, for that matter, the convenience of air navigation to any particular degree or in any particular aspect outside and beyond the observance of the annexes to be adopted by the International Civil Aviation Organization set up under the Convention and of such further arrangements as emerge from international cooperation under the Treaty. But I do not think the Convention should be read narrowly, and I think that there is to be found within its terms an obligation upon the Commonwealth to secure uniformity of regulations, standards, practices, procedures and organization in air navigation throughout Australia as a step towards uniformity as between Australia and other contracting States in relation to regulations, standards, practices, procedures and organization in civil air navigation."

Clearly a similar "obligation" rests upon Papua New Guinea; diminished in the circumstances of this case, in my opinion, by the fact that it is a national operation. The fact that the Convention is adopted in the schedule of the Civil Aviation Act, (Ch. No. 239) does not, for that reason alone, give it any greater authority than it would otherwise have. The articles of the Convention remain as standards and recommendations and each State undertakes to keep them to the greatest possible extent uniform with those established by I.C.A.O. For example, art. 12:

"Each contracting State undertakes to adopt measures to ensure that every aircraft flying over or manoeuvring within its territory and that every aircraft carrying its nationality mark, wherever such aircraft may be, shall comply with the rules and regulations relating to the flight and manoeuvre of aircraft there in force. Each contracting State undertakes to keep its own regulations in these respects uniform, to the greatest possible extent, with those established from time to time under this Convention. Over the high seas, the rules in force shall be those established under this Convention. Each contracting State undertakes to ensure the prosecution of all persons violating the regulations applicable." [Emphasis added.]

Thus the I.C.A.O. rules do not bind each member State except that they are bound by the rules of the air established by I.C.A.O. where aircraft are to fly over the high seas.

"Standard" means any specification for physical characteristics, configuration, material, performance, personnel or procedure the uniform application of which is recognized as necessary for the safety or regularity of international air navigation and to which member States will conform in accordance with the Convention.

"Recommended practices" means any specification for physical characteristics, configuration, material, performance, personnel or procedure the uniform application of which is recognised as desirable in the interests of safety, regularity or efficiency of international air navigation and to which member States will endeavour to conform in accordance with the Convention.

The contracting States undertake to comply with the standards and recommendations so far as they find it practicable to do so: See art. 28. Any State which finds it impracticable to comply in all respects with any international standard must notify the council: art. 38. Although there is no similar obligation to notify differences from recommended practices, contracting States are invited to notify the Council of the differences between their national regulations and practices and any corresponding recommended practices contained in an annex when the knowledge of such differences is important for the safety or regularity of air navigation: See Air Law, by Shawcross and Beaumont (4th ed., 1977), par. 206.

In relation to aerodromes and other air navigation facilities the Convention contains provisions of a kind not included in earlier conventions and designed to secure standards that must eventually be available for international air traffic in the territories of all contracting States. However, the "obligations" undertaken by the contracting States are subject to limitations and safeguards which make it impossible for a State to be compelled to take action against its will.

Again, the obligation to provide airports and other facilities is fulfilled by the contracting State so far as it may find practicable. It is obvious that this qualification in art. 28 may greatly limit the practical effect of the provision and see also arts. 69-71 and 74 and see Air Law, by Shawcross and Beaumont (supra at par. 265).

For present purposes the offending coconut trees do not comply with the obstacle limitation requirements contained in Ch. 4 of annex 14. They offend against a recommendation (4.2.4.) and not against a standard. Recommendation 4.2.4. is as follows:

"4.2.4. Recommendation

Existing objects above any of the surfaces required by 4.2.1. should as far as practicable be removed and new objects or extensions of existing objects should not be permitted above the conical surface or inner horizontal surface, except, when, in the opinion of the Appropriate Authority, the object is or would be shielded by an existing immovable object or after aeronautical study it is determined that the object would not adversely affect the safety or significantly affect the regularity of operations of aeroplanes." [Emphasis added.]

Consequently it follows, in my view, that it cannot be said that the Director has exceeded the powers given to him under the Civil Aviation Act. The Director is not bound in the circumstances of this case nor can he be compelled to give strict effect to the recommendations only of the Convention. These circumstances are, in summary, that the Director is exercising municipal law for a purely internal operation and the Convention itself recognizes in art. 1 that every State has complete and exclusive sovereignty over the airspace above its territory. The Director has an obligation to see that in these circumstances any regulation is made uniform to the greatest possible extent. The infringement of the coconut trees into airspace infringes a recommendation only and not a standard of annex 14 of the Convention and is not bound to be notified. Further it is in the discretion of the Director to have the obstacle removed "as far as it is practicable".

In my opinion the essence of this case is the Director’s powers as contained in regs. 82, 83 and 86 of the Civil Aviation Regulation 1975 (supra). It is clear that the Director is given wide discretionary powers thereunder. Hence the Director may issue an aerodrome licence under reg. 82(2) "subject to such conditions as the Controller considers necessary to ensure compliance with the Convention and the safety of aircraft using the aerodrome". He may authorize the use of any place as an aerodrome subject to such conditions as he specifies in the instrument of authorization (reg. 83), and authorize the type of aircraft which may take-off and land from an authorized aerodrome and more importantly he may by reg. 86(2) "in relation to any aerodrome... issue such directions as he considers necessary to ensure the safety of aircraft and compliance with the standards, recommended practices and procedures adopted from time to time by virtue of the Convention".

The wide discretionary powers given to the Director, in particular by regs. 82(2) and 86(2), are subject to the overriding duty to ensure the safety of aircraft using licensed aerodromes. When considered with the known fact of the obtruding coconut trees and together with recommendation 4.2.4. of annex 14 it is obvious that if the trees cannot be removed there is cast a duty upon the Director to institute an aeronautical study to determine if they would adversely affect the safety of the operation of Fokker F.28 aircraft, if he is to properly comply with the Regulations and the Convention.

I am satisfied on any test that this has been carried out to a high degree of proficiency.

There has been much evidence necessarily of a technical nature about the operation. Being highly technical I do not think it would be of much assistance to anyone but an airline pilot and possibly some others if it were repeated.

My findings on that evidence are as follows:

There is evidence from the four most senior Fokker F.28 captains employed with Air Niugini both by affidavit and from sworn evidence attesting to the complete safety of the operation and of evaluation of test flights. Similarly there is evidence from Mr. Sydney Goddard, the Acting Deputy General Manager of Air Niugini and clearly a pilot of vast experience and an expert in relation to the F. 28, attesting also to the complete safety of the operation. I accept all of this evidence in its entirety. Further there is evidence from Mr. David Lennox, the Assistant Director of the Department of Civil Aviation and evidence from Mr. John Moore, an aviation consultant and company director from Australia. I am also satisfied that both are experts in their field and I likewise accept their evidence in its entirety as to the safety of the operation. There is evidence of evaluation by Ansett Airlines of Australia again asserting the safety of the operation and further evidence from officers of the Department of Civil Aviation.

All of this evidence is highly professional and competent and its expertise clearly proves that the operation is a safe one.

Against this there is the evidence of the President of the Papua New Guinea Air Pilots Association, who is a First Officer on Air Niugini F.28s asserting that the operation is unsafe in several respects apart from the infringing coconut trees. In support there is some affidavit material in general terms. Whilst I do not doubt the sincerity of this evidence I find that it cannot stand against what amounts to overwhelming evidence individually and collectively of persons with greater experience and expertise.

Accordingly, I dismiss the application of the Papua New Guinea. Air Pilots Association together with costs.

Application dismissed with costs.

____________________________

Solicitors for the applicant: Young & Williams.
Solicitors for the first respondent: The State Solicitor.
Solicitors for the second respondent: Beresford Love & Company.