Papua New Guinea Air Pilots Association v The Director of Civil Aviation and The National Airline Commission trading as Air Niugini [1983] PNGLR 1

• Jurisdiction: Papua New Guinea
• Judge: Andrew J
• Judgment Date: 07 January 1983
• Court: National Court
• Citation: [1983] PNGLR 1
• Year: 1983
• Judgement Number: N399

Full Title: Papua New Guinea Air Pilots Association v The Director of Civil Aviation and The National Airline Commission trading as Air Niugini [1983] PNGLR 1

National Court: Andrew J

Judgment Delivered: 7 January 1983

1 Civil aviation—regulation of air navigation—licensing of Rabaul Airport for operation of F28 Fokker aircraft—locus standi of Air Pilots Association

2 Civil aviation—powers of Director of Civil Aviation to licence aerodromes—effect of standard and recommendations of Chicago Convention on International Civil Aviation 1944—ratification of convention by PNG—relationship between municipal law and international law discussed

3 Civil aviation—air navigation—obstacle—restriction at airports affecting safety of air operations discussed

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 (Ch239).

By order purporting to be made under the Civil Aviation Act 1979, the Director of Civil Aviation approved the operation of Fokker F28 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 CLR 493; 54 ALJR 176, and Robinson v The Western Australian Museum (1977) 138 CLR 283 at 327–328; 51 ALJR 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 (Ch239) 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) 113 CLR 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.

The following cases are cited in the judgment:

Airlines of NSW Pty Ltd v New South Wales (No 2) (1965) 113 CLR 54.

Australian Conservation Foundation Inc. v Commonwealth of Australia (1980) 146 CLR 493; 54 ALJR 176.

Costello v The Controller of Civil Aviation (No 2) [1977] PNGLR 476.

Robinson v The Western Australian Museum (1977) 138 CLR 283; 51 ALJR 806.

Application.

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

___________________________

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 F28 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 F28 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 recognises.

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 CLR 493; 54 ALJR 176), and as his Honour said in Robinson v The Western Australian Museum (1977) 138 CLR 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 F28 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...