Nicholls v Airways Corporation of New Zealand Hc Tau
| Jurisdiction | New Zealand |
| Judge | Woodhouse J |
| Judgment Date | 15 August 2011 |
| Court | High Court |
| Docket Number | CIV-2010-470-586 |
| Date | 15 August 2011 |
CIV-2010-470-586
IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY
Dispute concerning charging of aerodrome fees — defendant was a state owned enterprise and under a duty to operate commercially — whether defendant entitled to recover sums for aerodrome control services provided to aircraft flying by Visual Flight Rules — whether issuing of invoices constituted breach of Fair Trading Act 1986 and Unsolicited Goods and Services Act 1975 — whether defendant entitled to withdraw services — whether defendant had the power to charge as aerodrome services were required to be provided under regulations.
Plaintiff in person
K Murray for the Defendant
JUDGMENT OF Woodhouse J
Mr Nicholls is an aircraft pilot who operates his own aircraft. He lives in Tauranga and flies out of Tauranga aerodrome.
Airways Corporation of New Zealand (Airways) is a state-owned enterprise. It provides aerodrome control services for aircraft movements at 17 aerodromes in New Zealand, including Tauranga aerodrome. Under the State-Owned Enterprises Act 1986 Airways is required to operate on a commercial basis. It charges for the services it provides in accordance with a published schedule of fees.
Mr Nicholls contends that Airways is not entitled to recover any sum from him for aerodrome control services. He maintains that Airways is nevertheless bound to provide him, or another pilot of his aircraft, with aerodrome control services. 1
Airways accepts that, because Mr Nicholls has communicated an objection to its published charges, Airways cannot, from the date it received the objection, recover charges on a contractual basis for aerodrome control services provided to Mr Nicholls. This is on the authority of Airways Corporation of New Zealand v Geyserland Airways Ltd. 2 Airways says that it could sue Mr Nicholls on a quantum meruit. It contends, alternatively, that it is entitled to withhold its services unless and until Mr Nicholls agrees to pay the standard charges. Whether it can is a central issue in this case.
Airways did withhold its services on two occasions in January 2010. This prompted Mr Nicholls to issue this proceeding. He has acted on his own behalf. He seeks a considerable number of declarations pursuant to five causes of action. The essence of Mr Nicholls' primary contentions may be summarised as follows:
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(a) In the absence of express acceptance of Airways standard charges, Airways cannot recover any sum for aerodrome control services provided to an aircraft operating by visual flight rules (VFR). Mr Nicholls operates his aircraft by VFR. The other type of flight rules relevant to this case are instrument flight rules (IFR).
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(b) All past invoices from Airways to Mr Nicholls were improperly issued. Issuing the invoices amounted to false representations that there was “a commercial relationship” between the parties and that money was owed by Mr Nicholls to Airways. Issuing the invoices constituted breach of the Fair Trading Act 1986 and the Unsolicited Goods and Services Act 1975. There is a claim to recover payments made.
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(c) Airways is not lawfully entitled to withhold aerodrome control services for an aircraft operating by VFR. In consequence, the withholding or withdrawal of services for Mr Nicholls' aircraft on 26 and 29 January 2010 was unlawful.
This summary does not set out the full extent of Mr Nicholls' contentions or the full extent of the relief he seeks. Nevertheless it does, with some reformulation, cover the main aspects of the contentions which require consideration. Mr Nicholls helpfully provided a concise statement of the essence of what he is seeking at the outset of his written submissions, as follows:
1) This case is to clarify how [Airways] can charge the plaintiff for ‘aerodrome control’ and issue invoices when it is alleged and admitted in part by [Airways] that no contract exists between the parties.
2) Further, the plaintiff requires a declaratory judgment on how [Airways] is lawfully able to deny Civil Aviation Authority (CAA) clearances to the plaintiff on commercial grounds when it has been agreed that none exist.
…
The purposes of the Civil Aviation Act 1990 (the Act) include the following, as set out in the long title:
(a) To establish rules of operation and divisions of responsibility within the New Zealand civil aviation system in order to promote aviation safety; and
(b) To ensure that New Zealand's obligations under international aviation agreements are implemented; and
…
Civil Aviation Rules (the Rules) are made under the Act. Under the Rules the Director of Civil Aviation (the Director) may designate airspace as either controlled airspace or special use airspace. Controlled airspace is the relevant category in this case. Controlled airspace is designated where there is need for an air traffic control service for the safety and efficiency of aircraft operations. Relevant definitions in s 2 of the Act are the following:
Air traffic control service means a service provided for the purposes of—
(a) Preventing collisions—
(i) Between aircraft; and
(ii) Between aircraft and obstructions on any manoeuvring area; and
(b) Expediting and maintaining a safe and efficient flow of air traffic:
Aerodrome control service means an air traffic control service provided for the control of aerodrome traffic:
Air traffic means all aircraft in flight or operating on any manoeuvring area of an aerodrome:
Controlled airspace is required to be designated by the Director as a “control area” or a “control zone”. There is a control zone at Tauranga aerodrome. Rule 71.55 makes provision for control zones. The most relevant parts of this rule are as follows:
71.55 Control zones
(a) The Director may designate as a control zone that portion of airspace around an aerodrome if—
(1) the Director determines that an aerodrome control service or an aerodrome and approach control service is required; and
(2) the traffic density and pattern requires controlled airspace.
(b) A control zone must be as small as practical consistent with the need to protect the flight paths of IFR flights arriving at and departing from the aerodrome.
(c) …
Rule 71.55(a)(1) refers to aerodrome control services and aerodrome and approach control services. There was a determination in the 1960s, under earlier legislation, that an aerodrome control service was required at Tauranga aerodrome. The current criteria applied by the Director include a requirement for an aerodrome control service if there are 60,000 or more aircraft movements per annum for three consecutive years, of which 9,000 or more are IFR movements. Tauranga aerodrome has met these criteria for an aerodrome control service for some years. For example, during 2010 there were 75,615 VFR aircraft movements at Tauranga aerodrome and 11,320 IFR aircraft movements.
A range of aircraft operate by VFR including gliders, parachute operators, microlights and smaller fixed wing aircraft and helicopters. Turbo-prop aircraft operated by Air New Zealand subsidiaries use Tauranga aerodrome. These aircraft invariably operate by IFR. The IFR aircraft are under radar control from the area and approach controllers based at Airways' Christchurch control centre until the aircraft is “handed over” to the Tauranga tower controller once it is established on the applicable instrument approach to Tauranga aerodrome. For departing IFR traffic the tower controller also obtains instrument departure clearances from the Christchurch control centre and provides an aerodrome control service for the departing aircraft.
Controlled airspace is required to be classified as one of five classes labelled A through E. The distinction between flights operating by IFR and flights operating by VFR is important in this classification. For example, controlled airspace classified as class A is airspace in which: “(1) separation is required between all flights; and (2) VFR flights are not permitted”: rule 71.101. In broad terms, the restrictions diminish from class A through to class E.
There is a control zone around Tauranga aerodrome with a class D classification. Under rule 71.107 the class D classification is controlled airspace in respect of which the Director considers in the interests of aviation safety that:
(1) separation is required between—
(i) IFR flights; and
(ii) IFR and special VFR flights; and
(iii) special VFR flights when the flight visibility is reported to be less than 5 kms; and
(2) traffic information must be provided to—
(i) IFR flights about VFR flights; and
(ii) VFR flights about IFR flights; and
(iii) VFR flights about other VFR flights; and
(3) traffic avoidance advice must be provided to IFR and VRF flights on request.
There are two classes of “uncontrolled airspace”, class F and class G. Class F requires no comment. The rule for class G is as follows:
71.113 Class G airspace
Class G airspace is any uncontrolled airspace that is not Class F airspace and—
(1) IFR flights are entitled to receive a flight information service; and
(2) VFR flights are entitled to receive a flight information service on request.
The pilot of an aircraft operating in a control area or a control zone must (subject to specific exceptions) comply with any air traffic control clearance or instruction and notify air traffic control of certain matters: rule 91.241. A pilot of an aircraft must not enter a control area or a control zone without air traffic control clearance (subject to specific exceptions): rule...
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