Helicopters (Nz) Ltd v The Director of Civil Aviation Authority Hc Wn

JurisdictionNew Zealand
CourtHigh Court
JudgeGendall J
Judgment Date20 December 2010
Docket NumberCIV-2010-485-002454
Date20 December 2010

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV-2010-485-002454

UNDER the Judicature Amendment Act 1972

IN THE MATTER OF DECISIONS MADE UNDER THE CIVIL AVIATION ACT 1990 and THE CIVIL AVIATION RULES

BETWEEN
Helicopters (NZ) Limited
Applicant
and
The Director of Civil Aviation Authority
Respondent
Counsel:

N S Gedye and J A MacGillivray for Applicant (J B Orpin on 20 December 2010]

R Schmidt and S Jennings for Respondent

Application for interim relief under s8 Judicature Amendment Act 1972 (interim order to preserve the position of the applicant) to allow the applicant to continue helicopter operations in Laos and Cambodia pending determination of a judicial review application and appeal — applicant's Air Operative Certificate allowing the operations had expired — respondent refused to issue a certificate on safety grounds that it could not exercise its functions under New Zealand domestic law — whether the applicant had a position to be preserved, given the licence had expired — whether the Court had jurisdiction to make an interim order deeming the continuance of an approval which had already expired — whether the applicant had delayed obtaining interim relief.

The issue was whether Helicopters NZ had a position to be preserved given application for interim relief had been made after its AOC had expired and it had delayed seeking relief.

Held: Helicopter NZ's AOC had expired through the effluxion of time so in terms of s8 JAA there was a jurisdictional issue as to the power of the Court to make an interim order deeming the continuance of an approval which had already expired. Under s4 JAA (application for review) jurisdiction did not exist because there was no position to be preserved which left the Court's discretionary ability to grant interim relief.

It had been clear from September 2010 that the Director was not prepared to grant an AOC relating to Laos and Cambodia, which had been known to Helicopters NZ. The mandatory relief sought involved extra territorial effect with the Director of CAA being responsible for the operation oversight in those foreign states. It was rare that some form of mandatory relief could be used to preserve the position of an applicant under s8 JAA. It was not a proper exercise of the Court's discretion to force the Director to act in a way which he regarded as outside his statutory duty.

Helicopters NZ had also been offered dates in January to hear the application on an urgent basis which had been declined due to availability of counsel. It was difficult for an applicant to assert prejudice through delay when it did not avail itself of hearing dates offered. The application also should have been made before the licence expired.

There was no jurisdiction to hear an application when all that had happened was that the approval had expired by effluxion of time. Even if there was jurisdiction, the interim orders were not necessary to preserve the position of Helicopters NZ. It could operate in Laos and Cambodia if those states permitted it; whether the US contracting commercial parties were content with that was not material. The Director's belief as to safety issues was not frivolous or without foundation. Helicopters NZ had also overlooked and delayed in applying for relief.

Application dismissed.

ORAL JUDGMENT OF Gendall J

1

I heard the application by Helicopters (NZ) Ltd for interim relief under s 8 of the Judicature Amendment Act 1972 at short notice during my Duty Judge week on 15 December 2010. Because of the imminent vacation, and with the Court not sitting after 17 December 2010, it has been necessary for me to deliver this oral decision and deal with the application as the best that can be done because of the time available.

2

Helicopters (NZ) Ltd is a substantial New Zealand helicopter company operating a fleet of helicopters registered in New Zealand. Their operations take place in New Zealand but also in Antarctica and they have, at various times, operated in areas in South East Asia, the Pacific and European countries. It is the wish of the applicant to operate in the states of Laos and Cambodia with which the proceedings are concerned. Over a significant period the applicant has been able to undertake helicopter operations in those countries. As a result of the decision that is the subject of the judicial review application this activity is said to be in jeopardy — unless the foreign states grant permission.

3

The Civil Aviation Authority (CAA) in New Zealand issues Air Operative Certificates (AOCs) which are required to be obtained by any operator or persons responsible for certain aircraft, if used for hire and reward. Certificates relating to the applicant were granted for a period of up to five years and remained in force until expiry, suspension or revocation. Certificates can be renewed. This arises through a complete reassessment by CAA when new applications are made.

4

In relation to the Laos and Cambodia operations, the applicant's principal customer has been an arm of the United States Department of Defence known as JPAC. In order to operate missions to recover remains of servicemen missing in action, whether directly or as a subcontractor, JPAC requires that the applicant have approval from the Civil Aviation Review Board, an organisation which is part of the United States Military. The Board requires the applicant to be subject to regulatory oversight from the country which is compliant with the International Civil Aviation Organisation (ICAO)-that is an international body which sets uniform and high standards and which audits the aviation systems of countries. New Zealand is ICAO compliant but neither Cambodia or Laos currently are. So their particular AOCs are apparently not acceptable to JPAC.

5

The applicant had an AOC number 12984 which five year term was to expire on 4 June 2010. That expiry date was extended to 3 December 2010 by the CAA to enable discussions to take place. In the meantime the applicant had to apply for a new AOC. Whilst it believed it to be a ?renewal?, nevertheless it was a fresh application. That required the Director of CAA to undertake a wide assessment of factors relevant to the grant of an AOC. During that period discussions took place, and correspondence passed, between CAA and the applicant because of concerns that the Director held about the operation of helicopters by the applicant or its subcontractors in Laos and Cambodia. Amongst other matters the Director was concerned that Laos and Cambodia did not have a competent Aviation Regulation Authority so as to allow the Director to exercise his functions and powers under New Zealand domestic law. The Director believed therefore that there existed safety issues unique to Laos and Cambodia.

6

The former AOC expired on 3 December 2010 and contemporaneously the new AOC12984 was issued to the applicant but with the endorsement Limitations:Approved within NZ, its offshore territories and Antarctica”.

7

The expired AOC endorsement previously operative had provided:

Limitations: Approved within NZ and its offshore territories. Approved for overseas operations in accordance with the NZ Civil Aviation Rules, International Regulations, and procedures contained in the Company Exposition.

8

The applicant has lodged an appeal against three aspects of that decision of CAA pursuant to s 66 of the Civil Aviation Act 1990. This enables the District Court to confirm, reverse or modify the decisions appealed against. But every decision of the Director the subject of an appeal continues in force pending the determination of the appeal and no person is excused from complying with the provisions of the Civil Aviation Act on the ground that any appeal was pending.

9

So, the applicant brings these proceedings in the High Court seeking review of three decisions of the CAA, and together with this application, seeks interim relief under s 8 of the Judicature Amendment Act 1972.

The substantive proceedings
10

The statement of claim challenges three decisions of the Director, namely:

  • (a) A decision dated 26 November 2001, notified on 3 December 2010 ?to renew the plaintiff's AOC on terms limiting the plaintiff's operations only to New Zealand, its offshore territories and Antarctica?.

  • (b) The decision of 8 November 2010 whereby the Director undertook not to remove aircraft operated by the applicant in Laos and Cambodia from the New Zealand register until 31 October 2011 on condition that the applicant make its best endeavours to expedite the process for transfer and provide the CAA with updates on progress, the effect of such decision being that the applicant must remove the aircraft from the New Zealand Register by 31 October 2010.

  • (c) The decision of the Director dated 8 November 2010 that CAA would continue to oversee the air worthiness and maintenance of the applicant's helicopters in Cambodia and Laos under Part 145 of the Civil Aviation Rules until removal of the aircraft from the New Zealand register on 31 October 2011 but would not oversee air operations in Cambodia and Laos under Part 135 during the same period (The effect of this decision is that whilst maintenance and air worthiness matters would continue to be overseen by CAA it would not oversee operational matters in those territories and it follows that approval to operate, within the ambit of the AOC does not exist).

11

The substantive grounds of review as pleaded in relation to the first and second decisions are that they are invalid having been made

  • • ultra vires the powers of the Director;

  • • were unreasonable; and

  • • were unlawful through “procedural unfairness”.

Challenge to the third decision is made on the basis that it was unreasonable. In respect of each decision the applicant has sought declarations that they each are invalid and seeks orders setting aside each of those decisions.

Preliminary
12

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