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Martens v Ume, Director Department of Transport & Civil Aviation [2000] PGNC 82; N2087 (14 June 2000)

N2087

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

APP CA NO. 58 OF 2000

BETWEEN

CAPTAIN FRED D. MARTENS

Appellant

AND

MIRIA UME,
DIRECTOR OF DEPARTMENT OF
TRANSPORT & CIVIL AVIATION

First Respondent

AND

THE INDEPENDENT STATE OF PAPUA NEW GUINEA

Second Respondent

Waigani : Los, J
2000 : April 18
June 6, 14

APPEAL PROCESS Civil Aviation Act section 272 Appeal to the Board of Review by submission Appeal to the National Court process akin to appeal by lower courts under National Court Rules (Forms 66, 67) on direction.

Counsel:

B Frizzel for Respondent

N Kubak for Appellant

Mr Frizzel has raised an objection on behalf of the Controller of Civil Aviation on the ground that the appeal by the appellant is incompetent. Incompetence arises because of the failure by the Appellant to lodge and serve his appeal on the controller within 14 days of the service of charge/suspension order on him. He relies on section 272 of the Civil Aviation Act to say that. The section says –

"272. Appeal

(1) A person aggrieved by –

• (a) a refusal of the Controller to grant a licence or certificate; or
• (b) the variation or cancellation of a licence or certificate, or the suspension of a licence or certificate otherwise than under Section 268 or 270,
  

may elect –

(c) to have the mater submitted for review to a board of review; or
(d) to appeal to the National Court.

(2) A submission under Subsection (1) shall be –

• (a) in writing, signed by the person aggrieved; and
• (b) lodged with the Controller within 14 days after service on the person aggrieved of notification of the decision of the Controller.
  

(3) On receipt of advice from the Controller that a submission has been lodged the Minister shall establish a board of review in accordance with Section 273.

(4) A submission to a board of review shall be accompanied by a deposit of K60.00."

As matters of fact the appeal was lodged well after 14 days requirement. The notice of suspension was served on the Appellant on 1st of March 2000. A notice of appeal was served on the controller on the 23rd of March after having filed with the National Court on 21st March.

Obviously and at the outset one cannot invoke the National Court Act and the Rules at the same time as invocation of the section 272 of the Civil Aviation Regulations if they are different in relation to lodging of appeals. There is a need to harmonise the application of the two. In this respect I agree with Mr Frizzel that here is a task of statutory interpretation.

The Aviation Act regulates, controls and promotes aviation services. There is a substantial interest in the aviation business to those who are involved in aviation industry within the country and beyond the country. The special nature of it is that a lot of flying is involved. Hence skills and competence required must be maintained at certain level all the time in order to ensure that lives of the travellers are not exposed unnecessarily to risk. This appears to be the aim that Civil Aviation Regulations seek to regulate or control. Hence a large part of the Regulations deal with air worthiness of the aircrafts themselves (Part III for example). They deal with the qualifications of the crew (Part IV), conditions of flight (Part IX), Rules of the Air (Part X) and grant and suspension of licences (Part XIII). With all these in mind the court must, at the outset, in order to enforce the regulations give the plain meaning of the words "A submission under subsection (1) shall be in writing ... and lodged with the Controller within 14 days or after service on the person aggrieved ..." However when viewed in relation to the scheme under which the National Court operates that is under the National Court Act and the National Court Rules, it does not make sense. In other words it is absurd. When a party enters into the National Court arena, the National Court Rules apply as to time of hearing, as to service, as to natural justice, and as to submissions. It is my view therefore the phrase "a submission under subsection (1)" has its application limited to a review by a board of review and not in relation to an appeal to the National Court. Such an interpretation, in my view, is not "an unruly – horse" which must not be allowed, Re Central Bank Regulations (1987) PNGLR 433. Firstly by looking at the words in section 272 alone, two distinct process are meant to cover: the Board of Review hearing and the National Court hearing. The words in subsection (1)(c ), subsection (2)(a) and (b), subsections (3) & (4), all relate to process towards getting a hearing before a Board of Review. They fall in well with section 273-constitution of the Board, section 274-proceedings before the Board, section 275-summonsing of witnesses, section-276 decisions of the Board. Secondly and on the other hand when an aggrieved person decides to appeal to the National Court he has a big leap. He goes out of the application of any of the subsections and sections I referred to, except in relation to the requirements under sections 277 to 279. Section 277(1) makes this clear that is "this section applies to an appeal to the National Court under section 272(1)(d)."

For the purpose of an appeal before the national court a submission does not constitute an appeal, a notice of appeal gives an appellant entry to the appeal process. On a quick look, there does not appear to be a specific form under the Civil Aviation Act, but a form similar to Form 66 and 67 pertaining to appeals from local court in Order 18 of the National Court Rules should be sufficient on direction of the Court.

The objection to the appeal on the grounds of incompetence therefore must be dismissed.
____________________________________________________________________
Lawyers for Respondent : Warner Shand Lawyers
Lawyers for Appellant : Kubak Lawyers