N11402

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS No. 1236 of 2019

BETWEEN:

NIUSKY PACIFIC LIMITED
Plaintiff

AND

MANOLOS AVIATION LIMITED
 TRADING AS NIUGINI HELIWORKS
Defendant

JUDGMENT

Waigani: Wood J

      2024: 17 October
2025: 1 August

Trial – the plaintiff provides air traffic services and other services in Papua New Guinea – it claimed the defendant did not pay for certain services amounting to K66,659.56 – the defendant denied it is liable and relies on a notice made by the Minister for Civil Aviation under section 145 of the Civil Aviation Act, which is says exempts a registered aircraft operator that operates an aircraft below 5,700kg and an aircraft used primarily for regular air transportation that directly benefits the rural communities in health, education or agriculture and general passenger services from paying fees and levies imposed by the plaintiff and National Airports Corporation Limited

The plaintiff claimed the notice was defective and void, but even if it was not, says the defendant was not exempt
  
Held – 

1.	The proceeding is dismissed.

2.	The plaintiff shall pay the defendant’s costs of the proceeding on a party/party basis, to be taxed if not agreed.

3.	The terms of these Orders are abridged to the date of settlement by the Court.

Legislation
Civil Aviation Act 2000
Interpretation Act 1975

Counsel
Ms M Worinu, for the plaintiff
Mr J Waka, for the defendant

1 August 2025

Background

1.	WOOD J; The trial before the Court related to the hearing of the plaintiff’s Amended Statement of Claim filed on 31 October 2023 (the Amended Claim).  In the Amended Claim, the plaintiff’s position is that in accordance with section 144 of the Civil Aviation Act 2000 (the Act), it is the sole provider of air traffic services in relation to the Papua New Guinea airspace or any other airspace for which Papua New Guinea is responsible.  The plaintiff further claims that in accordance with section 85 of the Act, it may impose charges on a user for the provision of air traffic services provided by it.  

2.	The plaintiff claims it received payments by the defendant for air traffic services, but in 2015 was advised by the defendant that it would no longer be paying for any further services because the defendant was now exempted from paying any fees by virtue of Government Gazettal Notice No. G23 published on 16 January 2015 (the Notice) by the then Minister for Civil Aviation.  The Amended Claim also claims that the Notice was published without the consultation of the plaintiff and that it was defective, although if it was not defective, the defendant does not qualify under the exemption.  On the basis of the matters pleaded in the Amended Claim, the plaintiff claims the amount of K66,659.56, plus interest at the rate of 8% on the judgment sum from 21 June 2015 to the date of payment, for unpaid invoices dated between 31 May 2015 to 31 January 2023 for services it claims it rendered to the defendant.  The Defendant denies the matters claimed in the Amended Claim. 

3.	At the trial, the plaintiff relied upon the following affidavits, namely:

a)	George Nosuri sworn on 25 May 2021 and filed on 27 May 2021
[Doc. No. 16];
b)	Leontine Ivano sworn on 30 November 2023 and filed on 26 January 2024 [Doc. 48];
c)	Leontine Ivano sworn on 3 November 2022 and filed on 10 November 2022 [Doc. 34];
d)	Leontine Ivano sworn on 27 February 2023 and filed on 14 March 2023 [Doc. No. 37];
e)	Melisha Worinu sworn on 21 June and filed on 25 June 2021 [Doc. No. 20].

4.	The defendant relied upon the following affidavits, namely:

a)	Jurgen Ruh filed on 4 December 2019 [Doc. No. 5];
b)	Jurgen Ruh filed on 26 May 2021 [Doc. No. 14];
c)	Jurgen Ruh filed on 28 October 2022 [Doc. No. 30];
d)	Hon. Davis Steven filed on 28 October 2022 [Doc. No. 31]

5.	There was no cross examination of witnesses at the trial. 

6.	For the purpose of the conduct of the trial, the parties signed a Statement of Agreed and Disputed Facts, which was filed on 11 April 2024 (the Statement).  Detailed below are the agreed and disputed facts and the legal issues for trial in the Statement.

AGREED FACTS:

No. 	Agreed Facts
	
1.		The Plaintiff is by law the only authorized provider of air traffic services, aeronautical navigation services and aeronautical communication services and related services in Papua New Guinea.
	
2.		The Plaintiff provides the following air traffic services in the air space of Papua New Guinea: area control services; approach control services; area flight information services and aerodrome control services.
	
3.		The Plaintiff imposes charges on a user for the provision of air traffic services provided by it.	
4.		The Plaintiff has received payments from the Defendant for the air traffic services provided by it	
5.		The Defendant has used and continues to use the services provided by the Plaintiff, in particular air traffic services and air navigational and surveillance services.	
6.		The Defendant provides the following services:
(i)	provides charter and medium lift helicopter services for a wide array of requirements for both international and National clients;
(ii)	partners with many sectors including mining, seismic, technical service industries, environmental support, search and rescue emergency, medical services, and light to medium lift aerial construction;
(iii)	provides helicopter services for both local and international clients;
(iv)	Defendant has the following aircraft in its fleets:
(a)	BK 117 (twin engine, speed 150knots, eco speed 125knotes/230km/hr, range 275NM/510KM, endurance 2.2hrs, 12knots/230Km/Hr, max take-off weight 3350kg, pax/freight max 1400Kg, seating 8 + 1);
(b)	BO 105 (twin engine, speed 270km/hr/130k, eco speed 200km/hr/105k, range 297NM/550KM, endurance 2.5hrs, max take-off weight 2500kg, pax/freight max900kg, seating 4 +1);
(c)	S76 P2VIP (Twin Engine, speed 290km/hr, eco speed 220km/hr/135k, range 330NM/600KM, endurance 2.7 hrs, max take-off weight 4800kg, pax/freight max 1500kg, seating 12);
(d)	BELL 222 (P2-HOT), weight 3742kg
(e)	BELL 430 (P2-MUM), weight 4218kg
(v)	provides the following services:
•	 Oil, Gas and Mining Explorations;
•	Drills & Equipment Moves;
•	 Camp Mobilisation & Crew Transport;
•	Seismic Support;
•	Sediment Supply;
•	Sling loads;
•	Medivac; 

(vi)	offers services to Departments Agencies, disaster reliefs, surveillance/search & Rescue, Ariel survey, building and maintenance of communication towers, powerline inspections, salvage & Towers (at page 4);
(vii)	the Defendant is authorised by CASA PNG to conduct Helicopter Charter Operations within PNG FIR through AOC 19/136.
	
7.		In 2015 the Plaintiff noticed that it did not receive payment from the Defendant.  Upon enquiry, Mr. Jurgen Ruh, Managing Director of Defendant advised the Plaintiff that it is exempted from paying fees by a Gazettal Notice No. G23 published on 16 January 2015 by the then Minister for Civil Aviation, Hon. Davis Steven (hereon after referred to as “the Notice”).
	
8.		The Notice states:
I, Davies Steven Minister for Civil Aviation, by virtue of the powers conferred by Section 145 of the Civil Aviation Act 2000 [the “CA Act”] and all other powers me enabling, hereby exempt a registered aircraft operator that operates:
(i)	an air aircraft below 5,700kg; and
(ii)	an aircraft used primarily for regular air transportation that directly benefits the rural communities in health, education or agriculture and general passenger services;
from paying fees and levies imposed by National Airports Corporation Limited (NAC) and PNG Air Services Limited (PNGASL), with effect on and from 1st August 2010.	
9.		Prior to the Publication of the Notice on 16 January 2015, the Plaintiff received payments from the Defendant for the services it (i.e., the Plaintiff) provides	
10.		The Defendant ceased payments to the Defendant after it became aware of the Notice.	
11.		The Plaintiff has sent invoices to the Defendant for the provision of its services	
12.		The Defendant has refused to make payments for the services provided by the Plaintiff on the grounds that it is exempted from paying for such services pursuant to the Notice	

DISPUTED FACTS:

No.	Disputed Facts
	
1.		The Defendant provides charted services not exclusively to rural areas associated with health, education and agricultural services in rural communities.	
2.		The Defendant provides chartered services not on a regular basis or intervals and not exclusively to rural areas associated with health, education and agricultural services in rural communities and does not provide general passenger service for rural communities.
The type of aircraft operation provided by the Defendant is not exempted by the Notice.	
3.		The Notice was published without consultation with the Plaintiff.	
4.		The Minister can only exempt flight of a particular class.	
5.		The Minister has no power to exempt a particular type of aircraft or registered aircraft operator	

LEGAL ISSUES FOR TRIAL:

1)	Whether the Minister was required to consult with the Plaintiff before publication of the notice?

2)	Is the Notice defective and void as:

(i)	there was no consultation with the Plaintiff;
(ii)	the exemption granted was to a registered aircraft operator and not to a flight of a particular class:
(iii)	under section 145 of CA Act, exemption can only apply to services provided by the Plaintiff and not any other State Aviation Enterprise;
(iv)	the Minister exempted a registered aircraft operator from paying fees due to both the Plaintiff and the National Airports Corporation;
(v)	the Minister applied the exemption retrospectively to commence on with effect on and from 1st August 2010.
3)	Does the Defendant qualify under the exemptions stipulated under the Notice?
4)	Whether the Defendant is exempted under section 145 (1) of the Civil Aviation Act 2000 and or under the Notice from paying fees to the Plaintiff for the service provided?
5)	Whether the type of aircraft operations operated by the Defendant is exempted or not exempted by the Notice?
6)	Whether the Plaintiff is entitled to all the reliefs pleaded in its Statement of Claim?
7)	Whether the Plaintiff is entitled to the total claim of K66,659.56. as at 31 January 2023 per the invoices?

The plaintiff’s submissions

7.	Extracted below is the main text of the plaintiff’s written submissions that were relied upon at the trial, namely:

SUBMISSIONS ON ISSUES

Issue 1 

1.	The Notice which the Minister for Civil Aviation published exempts an “aircraft operator” and not certain “flights of particular class” from payment of fees and it was published without consultation with the Plaintiff as required under section 145(1) of the CA Act.

2.	Under section 145(1) of the CA Act, the Minister for Civil Aviation after consultation with the Plaintiff, by notice in the National Gazette exempt certain “flights of a particular class” from payment of fees for the use of air traffic services.

3.	 Section 145 of Civil Aviation Act 2000 provides that:
145.	Power to exempt certain Flights from fees.
(1)	The Minister may, by notice in the National Gazette, after consulting with PNG ATS, exempt flights of a particular class from payment of fees for the use of air traffic services.
(2)	 The Minister shall, with the concurrence of the Minister responsible for finance matters, out of moneys appropriated by Parliament, compensate PNG ATS for exempt flights and the amount of compensation shall be equivalent to the sum which would have been charged by PNG ATS to those flight’s as if they had not been exempted from charges. 

4.	From the records held by the plaintiff, the exemption notice (i.e., gazettal notice no. G23) was published without consultation with the plaintiff: see paragraphs 6, 7 and 8 of the affidavits of Leontine Ivano filed on 4 march 2023.

5.	It will be noted from the Affidavit of Hon, David Steven [Doc. No. 31] that:

(i)	the decision to exempt a registered aircraft operator from payment of fees was made by the National Executive Council and not him (Hon Davis Steven) who was the minister for Civil Aviation at the time;
(ii)	there was no consultation before the publication of the notice.

6.	If there was a consultation (which the plaintiff says no), the Minister would have been properly advised to exempted a flight of a particular class (see paragraph 2 of Affidavit of Hon. Davis Steven) and not an aircraft operator from payment of fees.

7.	It will be noted from the Affidavit of Captain Jurgen Ruh [Doc No. 30] that:
(i)	the Defendant lodged an application seeking an exemption to carry out its operations and not on a particular class of flights; 
(ii)	the Minister was in consultation with the Defendant on the type of service it provides and the exemption on payment of fees;
(iii)	the medevac services provided by the Defendant are in partnership with Districts and Provincial Governments which are provided according to the terms of the partnership (including duration, budget and fundings);
(iv)	the medevac services provided are commercial in nature;

8.	There is no evidence provided by the Defendant in relation to the Minister being in consultation with the Plaintiff before publishing the Notice of Exemption.

9.	It is through the consultation that that the Minister make arrangement for payment of compensation for exempt flights and the compensation are equivalent to the sum which would have been received by the Plaintiff for those exempted flights as if they have not been exempted from charges; see section 145 (2) of CA Act.

10.	There is no arrangement for payment to Plaintiff nor has the Plaintiff received payment of compensation from the government on the exemption as required under section 145 (2).

11.	The Defendant who is a registered aircraft operator is exempted from payment of fees and not a particular class of flights as required under section 145 (1). 

12.	The Minister has no power to exempt a particular type of aircraft or registered aircraft operator under section 145 (1) from payment of fees.

13.	The Gazettal Notice was published without consultation with the Plaintiff: see paragraph 14 of the Affidavit of Leontine Ivano filed on 10 November 2022[Doc. No.34].
Issue 2 
14.	The Plaintiff repeats its submissions under Issue 1 above.

15.	The notice is defective and void as it is not in accordance with section 145 (1) of CA Act.

16.	The Notice is in the following terms:
I, Davies Steven Minister for Civil Aviation, by virtue of the powers conferred by Section 145 of the Civil Aviation Act 2000 [the “CA Act”] and all other powers me enabling, hereby exempt a registered aircraft operator that operates:
(i)	an air aircraft below 5,700kg; and
(ii)	an aircraft used primarily for regular air transportation that directly benefits the rural communities in health, education or agriculture and general passenger services;
from paying fees and levies imposed by National Airports Corporation Limited (NAC) and PNG Air Services Limited (PNGASL), with effect on and from 1st August 2010.

17.	The Gazettal Notice is defective and void as:

(i)	there was no consultation with the Plaintiff;

(ii)	the exemption granted was to a registered aircraft operator and not to flights of a particular class;

(iii)	under section 145 of CA Act, exemption can only apply to services provided by the Plaintiff and not any other State Aviation Enterprise;

(iv)	the Minister exempted a registered aircraft operator from paying fees due to both the Plaintiff and the National Airports Corporation;

(v)	the Minister applied the exemption retrospectively to commence on with effect on and from 1st August 2010.

Issue 3
18.	Even if the Notice is not defective, the Defendant does not qualify under the exemption stipulated under the Notice.

19.	The Defendant’s company Profile is marked as annexure “A” to Melisha Worinu’ s Affidavit filed on 25 June 2021 [Doc. 20]. It will be noted from the Profile that:

(i)	Niugini Heliworks (“NH”) is owned and operated by Manalos Aviation Ltd ( at page 3);
(ii)	NH has over the years provided charter and medium lift helicopter services for a wide array of requirements for both international and National clients (at pg 3);
(iii)	NH partners with many sectors including mining, seismic, technical service industries, environmental support, search and rescue emergency, medical services, and light to medium lift aerial construction (page 3);
(iv)	NH provides helicopter services for both local and international clients (page 3);
(v)	NH has the following fleets (at pages 4 to 7);
•	BK 117 (Twin Engine), Weight 3350KG;
•	BO 105 (Twin Engine), Weight 2500KG;
•	S76P2VIP (Twin Engine), Weight 4800kg;
(vi)	NH provides the following services (at page 4):
•	Oil, Gas and Mining Explorations;
•	Drills & Equipment Moves;
•	 Camp Mobilisation & Crew Transport;
•	Seismic Support;
•	Sediment Supply;
•	Sling loads;
•	Medivac.
(vii)	NH offers services to Departments Agencies, disaster reliefs, surveillance/search & Rescue, Ariel survey, building and maintenance of communication towers, powerline inspections, salvage & Towers (at page 4);
(viii)	NH is authorised by CASA PNG to conduct Helicopter Charter Operations within PNG FIR through AOC 19/136 (at page 5).

20.	It will be noted from the Affidavit of George Nosuri [Doc. No. 16] that:

(i)	the Defendant does not operate scheduled regular Public Transport services for the rural communities;
(ii)	medivac operations on ad hoc basis provided by the Defendant is under joint commercial arrangements with several Provincial Governments;
(iii)	the operation by the Defendant is commercial in nature and it provides Charter operations to both International and National Clients;
(iv)	as the Defendant’s operations is commercial in nature and provides charter operations, the Defendant is not exempted from paying fees;
(v)	the Defendant is the only operator who refuses to pay the fees compare to other companies that perform similar operations;
(vi)	exemption is for operators that provides regular scheduled services for rural transportation;
(vii)	 the Defendant operates charter flights and or adhoc services therefore it is not qualified as operating regular scheduled services.

21.	The Defendant has a total of 5 aircrafts and are all below 5700kg; see paragraphs 7 and 8 of the Affidavit of Captain Jurgen Ruh [Doc. No. 14]. 

22.	Although the Defendant’s aircrafts are below 5,700 kg, the aircrafts are not …. used primarily for regular air transportation that directly benefits rural communities in health, education or agriculture and passenger services.

23.	The Defendant operates charter flights and or adhoc services on demand and or requested by its clientele. The Defendant does not operate scheduled-regular flights to rural areas: see Affidavit of Leontine Ivano [Doc No. 34]

24.	The aircrafts of the Defendant are used for commercial activities on hire and not on regular flights; see annexure “A” of the Affidavit of Melisha Worinu [Doc. No. 20]

25.	The Defendant does not qualify under the exemptions stipulated under the Notice, as:

(i)	the exemption only applies to Registered Aircraft Operator that operates “an air craft”, that is only one air craft;
(ii)	the exemption in the Notice does not apply to a Registered Aircraft Operator that has multiple air crafts;
(iii)	the Defendant has multiple air crafts and provides chartered services;
(iv)	the Defendant:
(a)	provides chartered services and not on a regular basis or intervals;
(b)	does not provide scheduled flights to schedule destinations; 
(c)	does not exclusively provide services to rural areas associated with health, education and agricultural services in rural communities and does not provide general passenger service for rural communities.
Issue 4
26.	The Plaintiff repeats its submissions above.

27.	The Defendant is not exempted under section 145 (1) of the CA Act and or under the Notice from payment of fees to the Plaintiff.

28.	In publishing the Notice without consultation with the Plaintiff, the Defendant breached section 145 (1) of the CA Act and therefore the Notice is defective.

29.	The Defendant is not exempted under section 145 (1) and or under the Notice from paying fees to the Plaintiff for the service provided. 

Issue 5

30.	The Plaintiff repeats its submissions above.

31.	As a matter of fact, the type of operations operated by the Defendant is not exempted by the Notice.

32.	The Defendant has not offered any evidence to demonstrate that they are exempted.

Issue 6 & 7

33.	The Defendant has refused to make payment for the services provided by the Plaintiff on the grounds that it is exempted from payment of fees for such services pursuant to the Notice.

34.	Once this Honourable Court determines that the Defendant is not exempted under section 145(1) of the Civil Aviation Act 2000 and or under the Notice by the Minister published in National Gazette No. NG 23 dated 16 January 2015, the amount invoiced should be paid as it is not disputed by the Defendant: see paragraph 12, 13, 14 and 15 of the Statement of Facts and Legal Issue for Trial.

35.	It is not disputed that invoices were sent to the Defendant: see Affidavit of George Nosuri [Doc No. 16], Affidavit of Leontine Ivano [Doc. No 34] and [Doc. No 48].

The defendant’s submissions

8.	Extracted below is the main text of the defendant’s written submissions that were relied upon at the trial, namely:

5.	ISSUES 

5.1.	  Whether the Minister for Civil Aviation was required to consult with the Plaintiff before the Publication of Gazette No 23 of 2015 (National Gazette)?

5.2.	  Whether or not the National Gazette was void for non-compliance with Section 145 of the Civil Aviation Act and Whether or not the Defendant will be liable in the event that the National Gazette is found to be void?

5.3.	  Whether or not the Defendant is qualified for exemption by virtue of the National Gazette?

5.4.	  Whether or not the Plaintiff is entitled to the reliefs pleaded in the Statement of Claim?

6.	APPLICATION OF THE LAWS TO THE ISSUE

	Whether the Minister for Civil Aviation was required to consult with the Plaintiff before Publishing of the Gazette No 23 of 2015 (National Gazette)?

6.1.	 The Plaintiff is established under Section 143 of the Civil Aviation Act 2000 (the Act) by the Civil Aviation Authority. By virtue of Section 144 of the Civil Aviation Act 2000, the Plaintiff is the sole Air traffic controller in PNG and provides the following services,

(a)  area control services; 
(b)  approach control services; 
(c)  area flight information services; 
(d)  aerodrome control services. 

6.2.	The services that the Plaintiff provide is pursuant to and is an extension of the powers of the Minister for Civil Aviation stipulated under Section 129(1), (2) and (3) of the Act.

6.3.	Section 129(1), (2) and (3) of the Civil Aviation Act states as follows,
(1) The Minister may, for the purposes of civil aviation, establish, maintain and operate aerodromes and services and facilities in connection with the operation of an aerodrome or with the operation of aircraft engaged in civil aviation. 
(2) The Minister may do all that is necessary, convenient, or incidental to the establishment, maintenance and operation of an aerodrome under his complete or partial control or of any services or facilities in connection with the operation of any such aerodrome in all respects as if the operation of the aerodrome or of the services or facilities were a commercial undertaking, and, in particular, may himself carry out any work or undertaking in respect of which he is authorized to enter into any agreement under Section 136. 
(3) Any power given to the Minister under this Act in respect of an aerodrome or any facilities in connection with an aerodrome may be exercised by him whether or not the aerodrome or the facilities have been established by him under this Act. 
6.4.   As submitted, the Plaintiff is established by the Civil Aviation Authority pursuant to section 143(1) of the Act, hence its establishment and functions set out under Section 144 of the Civil Aviation Act are for purposes of executing and giving effect to the powers of the Minister for Civil Aviation and not its own.

6.5.	The National Gazette published on Friday 16 January 2015 reads as follows;

	NOTICE OF EXEMPTIONS FOR AIRLINES PROVIDING SERVICES TO RURAL AIRSTRIPS

I, Davis Steven, Minister for Civil Aviation, by virtue of the powers conferred by Section 145 of the Civil Aviation Act 2000 and all other powers enabling me, hereby exempt a registered aircraft operator that operates-

(a)	an aircraft below 5,700kg; and
(b)	an aircraft used primarily for regular air transportation that directly benefits the rural communities in health, education or agriculture and general passenger services,

from paying fees and levies imposed by the National Airports Corporation (NAC) and PNG Air Services Limited (PNGASL), with effect and from 1st August 2010.

6.6.	The Plaintiff is alleging that the above notice published in the National Gazette is void because the Minister did not consult them before publishing the gazette as required by Section 145(1) of the Civil Aviation Act. 

6.7.	Section 145(1) of the Act stipulates that;
The Minister “may”, by notice in the National Gazette, after consulting with PNG ATS, exempt flights of a particular class from payment of fees for the use of air traffic services.
6.8.	Section 145(1) of the Act is very clear, it is not mandatory for the Minister for Civil Aviation to consult the Plaintiff before publishing the notice in the National Gazette rather discretionary because the provision states that the Minister “may” and not “shall”.  

6.9.	The primary power for the management and control of civil aviation matters is vested with the Minister for Civil Aviation by Section 129 of the Act, hence Section 145 of the Act should not be read in isolation but subject to Section 129 of the Act. In so doing, the Plaintiff will appreciate that its establishment and the powers and functions that it carries out is basically executing the powers of the Minister under Section 129 of the Act.  

6.10.	Therefore, the publication of the National Gazette by the Minister is consistent with Section 129 of the Act. The exercise of the powers by the Minister is not subject to the scrutiny of the Plaintiff rather the Plaintiff exist to implement the exercise of powers and functions by the Minister and not question it per se.

6.11.	Even so, the National Gazette was published by the Minister for Civil Aviation, if there is anyone liable for breach of provisions of Section 145(1) of the Act, it is the Minister for Civil Aviation. Hence, the cause of action is against the Minister for Civil Aviation.

6.12.	The Plaintiff continue to say that the Gazette is void because of want of compliance with Section 145(1) of the Act. Thus, the apt action the Plaintiff ought to have taken was to inform the Minister of the breach and recommend to the Minister to revoke the gazette on that basis, or alternatively take necessary action to quash the gazette publication on the basis of want of compliance with Section 145(1) of the Act. 

6.13.	However, nothing was done by the Plaintiff to rectify what they alleged as a breach of law. The Gazette was published in 2015, its almost 10 years since its publication and still in force because there is no evidence of it being revoked.

6.14.	The Plaintiff continue to allow the Gazette to be in force, and then try to benefit out of it by claiming fees from the Defendant on the basis that the Defendant relied on a Gazette that is void. Had the Gazette been revoked or quashed, the Defendant would have paid the fees they are claiming because it is an undisputed fact that the defendant has paid its fees before the publication of the gazette.

6.15.	Nevertheless, the issue of whether or not the Minister was required to consult the Plaintiff before publishing the National Gazette is not a question for the defendant to answer, as it was not and is not incumbent on the Defendant’s to check and ensure internal compliance processes set out under the Civil Aviation Act were complied with before the notice granting exemption was published in the National Gazette. 

6.16.	Simply put, that defendant is not privy to information pertaining to whether internal processes were complied with or not, thus cannot be used against the Defendant.

6.17.	For the Defendant, the buck stopped at when the National Gazette was published and does not extend beyond that. Hence cannot be liable for reasons that the National Gazette was void because internal processes were not complied with leading up to its publication. 

6.18.	At all material times, the Defendant acted in good faith by virtue of the National Gazette because it did qualified to benefit from same.

6.19.	In the case of Royal British Bank -v- Turquand [1856] EngR 470;(1856) the house of lords held and established as follows;

	“Someone who acted in good faith and without reasonable grounds for suspicion that the other party lacked or needed further authority to enter into a binding contract was not to be affected by any actual irregularity or impropriety in the internal regulation of the company”

6.20.	Pursuant the Schedule 2.1 of the Constitution, the National and Supreme courts of Papua New Guinea have adopted and relied on the principle in the cases of AGC (Pacific) Limited -v- Woo International Pty Ltd [1992] PNGLR 100 and Sagara (Holdings) Limited -v- Hamac Holdings Ltd [1973] PGSC 39 to name a few.

6.21.	Although we acknowledge that all these cases involve contractual relationships, we submit that the principle establish can equally apply to this case as well. This is because of the fact that the National Gazette published by the Minister for Civil Aviation was sufficient enough for the defendant to act on, thus the Defendant cannot be liable for acting in good faith.

6.22.	Accordingly, we submit that the Gazette was properly published and regardless of whether or not the Minister for Civil Aviation was required to consult the Plaintiff, it is an internal matter between the Minister and Plaintiff, as such the defendant cannot be liable, should the court establish that indeed the Minister was required to consult Plaintiff but did not. 

Whether or not the National Gazette was void for non-compliance with Section 145 of the Civil Aviation Act?

6.23.	We adopt our submissions under the first issue and further submit that even if the National Gazette is found to be void, the Defendant cannot be liable for relying on the Gazette and did not pay the fees for the services rendered. 

6.24.	This is wholly because, the defendant was not privy to information pertaining to internal compliance processes. The Publication of the National Gazette by the Minister is sufficient for the defendant to act on and it acted on same. 

6.25.	In addition, considering the Plaintiff intends to hold the defendant liable because it acted on an allegedly void notice, why have they not taken action against other aviation companies like Mission Aviation Fellowship (MAF) and others who have also acted on the National Gazette.

6.26.	There is no evidence before this court establishing that similar actions have been taken against other aviation companies who have not paid their fees based on the exemption notice. So why targeting the defendant only?

6.27.	In any case, Section 145(2) of the Civil Aviation Act asserts that any cost incurred as a result of gazettal publications under Section 145(1) of the Act, the Plaintiff is to be remedied by the Minister for Finance for the services and not the beneficiary, which in this case is the Defendant. The law is clear.

6.28.	The Defendant acted on the Gazette, the fees that the Defendant did not pay are to be claimed from the Minister for Finance and not the Defendant. 

6.29.	Therefore, we submit that the gazette was properly published, the defendant acted on it, and cost incurred by the Plaintiff is to be remedied by the Minister for Finance, even if it’s established that the gazette is void. 

Whether or not the Defendant is qualified for exemption by virtue of the National Gazette?

6.30.	The National Gazette exempted aircrafts that weighed 5700 kilograms and below and does regular transportation (flights) that benefit the rural communities in health, education, agriculture and general passenger services.

6.31.	We submit that the defendant is qualified to be exempted from paying the fees for the services rendered by the Plaintiff.

6.32.	In the Affidavit of Jurgen Ruh filed 26 May 2021, the Defendant owns and operates the following aircrafts;

NO	AIRCRAFT DESCRIPTION	WEIGHT	
i.		BK 177 (P2-BIB)	3350 KG	
ii.		B0 105 (P2-TOW/NTI/MPG/TWO)	2500 KG	
iii.		S76 (P2-VIP)	4800 KG	
iv.		BELL 222 (P2-HOT)	3742 KG	
v.		BELL 430 (P2-MUM)	4218 KG	

Refer to Annexures Marked B, C, D, E and F to see pictures of the Aircrafts.

6.33.	From paragraph 10 to 13 of Jurgen Ruh’s Affidavit, he deposed that the Defendant is primarily involved in carrying out medivac services in the Rural parts of PNG and very seldom the defendant does other services. 

 Refer to Annexure G in the Affidavit of Jurgen Ruh filed 26 May 2021 to see the aircrafts engaged in medivac work.

6.34.	Then Minister for Civil Aviation, Davis Stevens also deposed to an affidavit, in his affidavit he unequivocally stated that the main reason why they exempt aircrafts is because of the kind of work the defendant does, which is medivac work out of the remote parts of PNG.

6.35.	Therefore, as to the issue of whether or not the defendant is qualified to benefit from the gazette, we submit that yes, the defendant is qualified because all the aircrafts owned and operated by the defendant are below 5700 KG and are primarily involved in Medivac work, hence falls under health.

6.36.	In the affidavit of Melisa Worinu filed 25th June 2021 she deposed that she conducted an online search on the defendant and obtained the company profile of the defendant, the company profile of the defendant is marked annexure A in Ms Worinu’s affidavit. Among other things on the company profile, the type of services the defendant can offer are also listed. 

6.37.	However, this does not mean that the defendant has engaged in all those services daily and as a result invoices issued were for the flights the defendant did by engaging in those services. What is on the company profile is merely advertising what the defendant can offer and does not necessarily mean the defendant engaged in those services which are not exempted and hence should pay.

6.38.	The Plaintiff attached in numerous affidavits, invoices they have issued to the Defendant however, there is no evidence to proof that the invoices relate to flights  that are not exempted by the National Gazette. 

6.39.	On the contrary, the Defendant has produced evidence that its line of duty is primarily around medical evacuations in the rural parts of PNG. And all the aircrafts used for the medivac operations are below 5700 KG.

6.40.	The Plaintiff has not produced any evidence to establish why the defendant should not be exempted, insofar as qualifying under the National Gazette for exemption is concerned, the defendant is qualified for exemption.  

6.41.	Furthermore, in the Affidavit of George Nosuri filed 27 May 2021, he deposed that the defendant does charter flights only and not on regular basis, as such not qualified to be exempted. This assertion by the Plaintiff is preposterous, in the affidavit of Jurgen Ruh (doc #14) he deposed from paragraph 14 to 18 that the defendant does regular medivac flights to rural communities.

6.42.	Mr. Ruh also stated that the defendant is a part 136 operator, thus they are not required to have schedules for flights rather engage as and when medivac services arise. He further deposed that no small aircraft operator in PNG does regular flights to rural areas on a daily basis or regularly per se but only when services are needed. And in all those fights the aviation companies get paid.

6.43.	Whilst alleging that the Defendant does not do flights regularly, George Nosuri failed to establish which other small operators do regular flights to rural communities. Besides, the gazettal notice does not say charter flights are not exempted. So long as an aircraft is below 5700KG and does flights that directly benefits the rural community, it is qualified to be exempted.

6.44.	Moreso, as per the National Gazette the defendant was exempted from paying service fee to both the Plaintiff and National Airports Corporation. However, NAC has not taken any action because they know and are aware that the Defendant was qualified under the gazettal notice, hence did not claim or issue any invoices to the defendant.

6.45.	Nonetheless, the Civil Aviation Act is clear, section 145(2) allows for the Plaintiff to claim fees for exempted operators from the Minister for Finance. The Defendant was qualified for exemption; hence the accrued service fee can be claimed pursuant to section 145(2) of the Act.

6.46.	As for voiding the National Gazette, the Plaintiff’s claim is against the Minister for Civil Aviation and not the defendant.

Whether or not the Plaintiff is entitled to the reliefs pleaded in the Amended Statement of Claim?

6.47.	Based on the foregoing submissions, we submit that the Plaintiff is not entitled to the claims in the Amended Statement of Claim. The Defendant is qualified for exemption thus not required to pay.

6.48.	Should the Plaintiff have any claim by virtue of the National Gazette Publication, it is with the Minister for Finance and none other.

Analysis of the issues

9.	Based on the issues pleaded by the plaintiff and defendant in their respective Amended Claim, the Amended Defence filed on 15 November 2023 and Statement, I will now assess those issues.

10.	 Section 145 of the Act provides as follows:

145. POWER TO EXEMPT CERTAIN FLIGHTS FROM FEES.
(1) The Minister may, by notice in the National Gazette, after consulting with PNG ATS, exempt flights of a particular class from payment of fees for the use of air traffic services.
(2) The Minister shall, with the concurrence of the Minister responsible for finance matters, out of moneys appropriated by Parliament, compensate PNG ATS for exempt flights and the amount of compensation shall be equivalent to the sum which would have been charged by PNG ATS to those flight’s as if they had not been exempted from charges.

11.	 In relation to the reference to PNG ATS in section 145 of the Act, this was a reference to Papua New Guinea Air Services Limited, which incorporation and provision of its roles and powers are provided for under section 143 of the Act.  Pursuant to an amendment to section 3 of the Act, the name of 
‘Papua New Guinea Air Services Limited’ was changed to ‘Niusky Pacific Limited’, which is the plaintiff if this proceeding.  Those issues are not in dispute in the proceeding.

12.	The Notice states as follows:

Civil Aviation Act 2000

NOTICE OF EXEMPTION FOR AIRLINES PROVIDING SERVICES TO RURAL AIRSTRIPS

I, Davis Steven Minister for Civil Aviation, by virtue of the powers conferred by Section 145 of the Civil Aviation Act 2000 and all other powers me enabling, hereby exempt a registered aircraft operator that operates -
(i)	 an aircraft below 5,700kg; and
(ii)	an aircraft used primarily for regular air transportation that directly benefits the rural communities in health, education or agriculture and general passenger services,
from paying fees and levies imposed by National Airports Corporation Limited (NAC) and PNG Air Services Limited (PNGASL), with effect on and from 1st August 2010.  

Dated this 9th day of January, 2015.

							D. STEVEN
							Minister for Civil Aviation

13.	 The plaintiff says that the Notice was published without consultation with it.  If it was the case that the plaintiff was not consulted by the Minister for Civil Aviation prior to the publication of the Notice, and if the plaintiff was aggrieved by the publication of the Notice, the plaintiff could have considered whether there was a basis to commence a judicial review proceeding in the National Court or take some other appropriate action to challenge the Notice.  In this regard, the Notice was published in January 2015, and there was no evidence adduced at the trial, nor any submissions made by the plaintiff that it had commenced proceedings to challenge the Notice.

14.	The plaintiff also claims that the exemption in the Notice was granted to a registered aircraft operator and not to a flight of a particular class.   In this regard, I note that section 145(1) of the Act provides that ‘The Minister may, by notice in the National Gazette, after consulting with PNG ATS, exempt flights of a particular class from payment of fees for the use of air traffic services.’

15.	I do not accept the plaintiff’s argument on this ground because the Notice provides an exemption to exempt a registered aircraft operator that operates an aircraft below 5,700kg and an aircraft used primarily for regular air transportation that directly benefits the rural communities in health, education or agriculture and general passenger services.  This is because, if it was intended that the Notice was meant to apply to a particular registered aircraft operator, then the Notice would have stated that fact.  The Notice did not do so.

16.	 Because the Notice states that it provides an exemption to a registered aircraft operator that operates an aircraft below 5,700kg and an aircraft used primarily for regular air transportation that directly benefits the rural communities in health, education or agriculture and general passenger services, I am satisfied that the Notice was intended to apply to those registered aircraft operators who operate aircraft of a particular weight that were operating those services that are prescribed in the Notice.

17.	The plaintiff also claims that the Notice was defective and void because under section 145 of the Act, the exemption can only apply to services provided by the plaintiff and not any other State Aviation Enterprise.  What is clear in this dispute before the Court is that the services were indeed provided by the plaintiff, and so, I consider this argument to be without merit.  Furthermore, even if other State Aviation Enterprises may charge fees under the Notice, this does not prevent the plaintiff from charging fees (except those exempted by the Notice).

18.	 The plaintiff claims that the Notice was defective and void because the Minister for Civil Aviation exempted a registered aircraft operator from paying fees due to both the plaintiff and the National Airports Corporation (NAC).  If it is the case that plaintiff asserts the Notice is defective and void because the Notice should not have included reference to the NAC, then the plaintiff could have given consideration to whether there was a basis to challenge the Notice in the National Court or Supreme Court.

19.	The plaintiff also claims that because the nature of the defendant’s operations are commercial in nature and that it provides charter services, it is not exempted from paying fees.  There is no express provision in section 145 of the Act that an operator’s services cannot be of a commercial nature or that the services cannot constitute charter services.  Accordingly, I reject the plaintiff’s argument in this regard.  

20.	The plaintiff also claims the Notice is defective and void because it applied the exemption retrospectively with effect on and from 1 August 2010.  I note that the plaintiff did not provide any case law authority in support of its argument on this point.  Again, if the plaintiff argues the Notice is defective and void, then the plaintiff could have given consideration to whether there was a basis to challenge the Notice in the National Court or Supreme Court.  

21.	Furthermore, section 28 of the Interpretation Act 1975 provides as follows:

‘Commencement.
28. COMMENCEMENT BY NOTICE IN THE NATIONAL GAZETTE.
(1) Subject to Subsection (3), where a statutory provision indicates that it is to come into operation in accordance with a notice in the National Gazette, the notice may–
(a) fix a date (including a time on a particular day); or
(b) fix the commencement by reference to the occurrence of an event (which, without limiting in any way the operation of this paragraph, includes the publication of the notice in the National Gazette),
and the provision comes into operation accordingly.
(2) Where a statutory provision indicates that it is to come into operation in accordance with a notice in the National Gazette, one or more notices in accordance with Subsection (1) may be published in the National Gazette to provide for the commencement of various parts of the provision–
(a) on the same day; or
(b) on different days; or
(c) on the occurrence of one or more events,
whether or not fixing, or referring, to the same time of the day.
(3) Subject to the statutory provision concerned, a notice referred to in Subsection (1) or (2) shall not fix a date, time or event occurring earlier than the date of publication of the National Gazette in which the notice is published.
(4) Where in relation to a statutory provision a notice in the National Gazette fixes a particular date as the date on which that provision comes into operation but does not fix a time on that day, the provision comes into operation at the
first moment of the day so fixed.’

22.	 In relation to section 28 of the Interpretation Act, it provides that the National Gazette notice may fix a date upon which a provision comes into operation.  I consider that was the case in relation to the Notice.  Moreso, I note that 
section 28 does not provide that it is prohibited to make the fixing of dates retrospectively, except as provided by section 28(3) of the Interpretation Act.  Indeed, it is a common occurrence and well known fact that decisions are routinely published in the National Gazette regarding matters where the coming into effect of a decision has occurred in the past or ‘retrospectively’.  This is permitted by section 28(3) of the Interpretation Act, which provides that: ‘(3) Subject to the statutory provision concerned, a notice referred to in Subsection (1) or (2) shall not fix a date, time or event occurring earlier than the date of publication of the National Gazette in which the notice is published.  As section 145 of the Act does not expressly provide (or prohibit) that the Notice may have retrospective effect, I consider it was permissible that the Notice have retrospective effect. 

23.	 The plaintiff claims that in the event the Notice was not defective or void, the exemption only applies to a registered aircraft operator that operates an ‘aircraft’, which the plaintiff contends means only one aircraft.  The plaintiff also argues that the exemption does not apply to a registered aircraft operator that has multiple aircraft.  I do not accept these submissions because if that was the case, the Notice would have stated that the exemption was limited to one aircraft per registered aircraft operator.  In other words, the Notice refers to ‘an aircraft’, rather than for example, ‘one’ aircraft.  Also, if it was intended that the Notice be limited to one aircraft per registered aircraft operator, I consider the Notice would need to identify each specific aircraft.  I also do not accept the plaintiff’s submission on this point as section 145(1) of the Act provides that the Minister may: ‘…exempt flights of a particular class from payment of fees for the use of air traffic services’.  In other words, that sub-section refers to flights of a particular class, but does not restrict the number of aircraft.  
24.	The plaintiff also submits that the Notice is defective or void because the defendant:

a)	 provides chartered services and not on a regular basis or intervals;
b)	 does not provide scheduled flights to scheduled destinations; and
c)	 does not exclusively provide services to rural areas associated with health, education and agricultural services in rural communities and does not provide general passenger service for rural communities.

25.	 In relation to the above matters, I note that neither section 145 of the Act or  the Notice provide that the services must relate to regular services or services performed during intervals.  Nor does section 145 of the Act provide that the services must be scheduled flights to scheduled destinations.  Accordingly, I do not accept those matters submitted by the plaintiff (as referred to in paragraph 24(a) and (b) above).
 
26.	 In relation to the plaintiff’s submission that the defendant does not exclusively provide services to rural areas associated with health, education and agricultural services in rural communities and does not provide general passenger service for rural communities, I note in the affidavit of Jurgen Ruh filed on 26 May 2021, he states that he is the Chief Executive Officer of the defendant and that 70% of the defendant’s operations involve medical evacuations (or medivacs) and 30% of the operations involve other services.  He states that the defendant operates five twin engine helicopters (which are detailed above in paragraph 6.32 of the defendant’s submissions).  In his affidavit, Mr Ruh states that the defendant has conducted medivac operations and such services are provided on a regular basis as the defendant mostly attends to sick patients or mothers in distress and has them flown into their nearest hospital.

27.	 In his affidavit, Mr Ruh also states that the defendant has conducted medivacs from the rural areas where there are no roads or airstrips, such as Langimar, Wau, Kaburn, Waria, Saragawat Range in Finchhafen, and other rural areas into the main provincial hospitals such as Angau Hospital in Lae, Vunapope Hospital in Kokopo, Gurney Hospital in Alotau, Goroka Hospital, Mt Hagen Hospital and Buka Hospital.

28.	The defendant also relied on the affidavit of Mr Davis Steven filed on 
28 October 2022, in which he stated that he had been a Member of Parliament from 2012 to June 2022.  In his affidavit, Mr Steven refers to the Notice (which is attached as annexure A to his affidavit).

29.	 Below is extracted part of Mr Steven’s affidavit, namely:

6.	‘The Government at the time was challenged to restore rural air transport 
network which had fallen into total disrepair and mostly forgotten over time.

7.	When the data and statistics revealed to me by the Civil Aviation Safety Authority, and Planning Ministry, and Transport Ministry, it was obvious to me that the Government had neglected and abandoned the rural communities that were connected by air transport services.  Many of them are very remote and not connected by road transport even to this point in time.

8.	So initiative was taken to revive the rural aviation sector, and the establishment of the Rural Airstrip Agency was a product of such collaboration and discussion.

9.	It also became clear that the rural sector was service by a very few operators who were involve in a few of our provinces only and many of them were operate by faith-based organizations including the Seventh Day Adventist, Missionary Aviation Fellowship, and Good Sheppard Aviation.

10.	 Manolos Aviation was also well known together with the North Coast Aviation in providing services to the rural areas.  I recall that for Manalos many of the Districts at that time were engaging their services for Medivac especially for the most vulnerable mother in need of Medivac to the nearest health centres.

11.	 In was in that background that I recall the decision was made to exempt operators in that category both types of aircraft and the services rendered to specific reference to the rural communities.

12.	 In making that decision, we were mindful that the Aviation enterprises including National Airports Corporation Limited and PNG Air Service Limited were not supported sufficiently from Government and that we did not intend to unnecessarily constraints on their revenue.  So there was a need for a balance and the advice I recall was that it would depend on the nature of the aircraft in terms of weight and in terms of the services rendered which would be specific to rural communities.’

30.	 Having considered Mr Steven’s affidavit in his capacity as the then Minister for Civil Aviation, who it is also noted was the Minister who made the decision contained within the Notice, I am satisfied that it was intended that the defendant, as well as other registered aircraft operators that operated those aircraft of a certain weight and service, be exempted from paying those fees and levies as referred to in the Notice.  I am satisfied that the Notice was limited to the aircraft conducting those services as prescribed in the Notice, and was not a general exemption.  

31.	 Another consideration in relation to the plaintiff’s submission which is referred to in paragraph 24(c) above, is that the Notice provides an exemption to an aircraft used ‘primarily’ for regular air transportation that directly benefits the rural communities in health, education or agriculture and general passenger services.   The word ‘primarily’ as defined in the Collins English Dictionary — Complete & Unabridged 2012 Digital Edition © William Collins Sons & Co. Ltd, means ‘principally’, ‘chiefly’ or ‘mainly’.

32.	 Based on the reference to ‘primarily’ in the Notice, as well as the above definition in the Collins English Dictionary, I am satisfied that it is not a requirement in the Notice that all of the defendant’s flights be used exclusively for regular air transportation that directly benefits the rural communities in health, education or agriculture and general passenger services, but that their flights be primarily used for that purpose.  In this regard, the plaintiff should have provided particulars in its Amended Claim of those flights, which it contends do not fall within the exemption in the Notice.  Even if the plaintiff did not provide the particulars in the Amended Claim, which I consider it should have done, at the very least, the plaintiff should have identified the details of those flights which it contends do not fall within the exemption.

33.	 I note that copies of the invoices that are claimed by the plaintiff in this proceeding are annexed to the affidavit of Leontine Ivano filed on 26 January 2024 and George Nosuri filed on 27 May 2021.  While those invoices contain the references of the coded locations to and from where the defendant’s flights took place, the plaintiff did not make submissions about any of the specific flight locations.  This is important, because even on a cursory analysis of the invoices, it is apparent the majority of the flights were conducted primarily to or from rural areas, such as the Aziana Airstrip in Eastern Highlands Province, Wanigela Airport, which is located in the village of Wanigela in Oro Province and to the Tsewi Airport in Morobe Province, near Tsewi Village.  

34.	 Moreso, in relation to the ‘flight identifier’ codes that are contained within the invoices that are attached to the above affidavits of Mr Ivano and Mr Nosuri, no explanation was provided by the plaintiff as to the nature of those flights.  Given it is the plaintiff’s claim, the burden of proof is upon the plaintiff to prove its case. 

35.	 Noting that it is the plaintiff’s case that it is the sole provider of air traffic services in Papua New Guinea, it was incumbent upon the plaintiff to  provide evidence and submissions as to which flights it contended were not exempted under the Notice, by reference to the weight of the aircraft and the nature of the flights.  In relation to the nature of the flights, it was not sufficient to simply annex invoices to the two above mentioned affidavits.  The plaintiff should have provided sufficient evidence and made all necessary submissions to demonstrate (in support of its case), that the defendant’s aircraft were not used primarily for regular air transportation that directly benefits the rural communities in health, education or agriculture and general passenger services.  In this regard, it did not do so.

Summary

36.	 On the basis of the above matters, I am not satisfied that the plaintiff has proven its case.  Accordingly, the proceeding is dismissed.  Furthermore, as it is the plaintiff’s case that the Notice is void and defective, it should have considered if there was a basis to challenge the Notice, and if so, take any available action in that respect.  It did not do so.  In making this observation, I do not make any determination about whether there would be a legal basis to do so.

37.	 I also note in the plaintiff’s submissions that it was stated that there is no arrangement for payment to the plaintiff, nor has the plaintiff received payment of compensation from the government under section 145(2) of the Act.  This is a matter solely for the plaintiff to consider.  Again, in making this observation, I do not make any determination about whether there would be a legal basis to do so.
    
Orders:

38.	In the circumstances, I make the following orders:	

1.	The proceeding is dismissed.

2.	The plaintiff shall pay the defendant’s costs of the proceeding on a party/party basis, to be taxed if not agreed.

3.	The terms of these Orders are abridged to the date of settlement by the Court.

Kopunye Lawyers for the plaintiff
Namani & Associates for the defendant