Tasman Australia Airlines Pty Ltd v Andrew Ogil, Director of Civil Aviation Authority of Papua New Guinea (2004) N2711

• Jurisdiction: Papua New Guinea
• Judge: Kandakasi J
• Judgment Date: 20 October 2004
• Citation: (2004) N2711
• Court: National Court
• Year: 2004
• Judgement Number: N2711

Full Title: Tasman Australia Airlines Pty Ltd v Andrew Ogil, Director of Civil Aviation Authority of Papua New Guinea (2004) N2711

National Court: Kandakasi J

Judgment Delivered: 20 October 2004

1 JUDGMENTS AND ORDERS—Declaratory orders—Whether a civil Court can interfere in investigations that criminal in nature—Allegations of improper exercise of statutory powers and substantial damages—Appropriate remedies—No authority and power in a Civil Court to restrain or otherwise interfere with investigation and process that are criminal in nature—Civil Aviation Act s57, s277, s278 and s310.

2 CIVIL AVIATION—Alleged breaches of Civil Aviation Act—Unauthorized flight—Landing on decommission aerodrome—Detention of aircraft—Powers of Director of Civil Aviation Authority under the Act—Nature of alleged breach—Alleged breaches and investigations criminal in nature—Aircraft required and detained for investigations and evidence in prosecutions—Director of Civil Aviation Authority has powers to detain and keep the aircraft or object used to commit an alleged breach—No Civil Court can interfere with a criminal process that has begun—Civil Aviation Act s57, s277, s278 and s310—Civil Aviation Regulations s81 and s86—Civil Aviations Rules 91.409 and 91.127.

3 Peter Kirrin & KK Farmers v John Paroda ( /08/04) N2, Simon Ketan v Lawyers Statutory Committee (28/09/01) N2290, Rimbink Pato v Anthony Majin & Ors (30/04/99) SC622, Sir Julius Chan v The Ombudsman Commission (15/07/98) N1738, The Bank of Papua New Guinea & Anor v Mr Marshall Cooke QC, & 2 Ors (14/05/03) N2369, Dan Salmon Kakaraya v The Ombudsman Commission of Papua New Guinea & Anor (24/10/03) N2478, Sakawar Kasieng v Andrew Baigry, Magistrate of Wewak District Court & Anor (23/06/04) N2562, Robert Lak v Daisy [Dessie] Magaru (Presiding Magistrate at Waigani District (Grade V) Committal Court) & The State (20/05/99) N1950, Jimmy Mostata Maladina v Posa in Poloh (25/06/04) N2568, Justin Wayne Tkatchenko v Dessy Magaru (04/05/00) N1956, Golubana No. 35 Ltd v Bank of South Pacific, (11/11/02) N2309, Samson Jubi & 3 Ors v Susan Edna Fraser & 2 Ors (28/01/04) SC735 referred to

Facts

An aircraft owned by the plaintiff flew into and landed at a decommissioned aerodrome without first applying for and obtaining an approved flight plan and landing from the Respondent. The Respondent charged the plaintiff, its owner who directed the flight and landing and the pilot of the aircraft for breaches of the Civil Aviation Act 2000 (CA Act) and rules and regulations under that. At the same time, he issued a detention notice and detained the aircraft for evidence in the prosecutions and for assistance in further and continuing investigations. The Plaintiff applied to the National Court in a purported exercise of a right of appeal seeking orders amongst others a nullification of the detention notice and for a release of the aircraft and sought that order in the interim pending a determination of its purported appeal.

Held

1. The question of whether the Respondent properly exercised his powers was a matter yet to be decided by the Court in the substantive proceedings. Meanwhile, for the purposes of the interim application, there appear to be a prima facie case of breaches of the Civil Aviation Act 2000 and rules and regulations giving the Respondent reasonable grounds to detain the aircraft.

2. The Respondent has powers under s57(2)(c) of the Civil Aviation Act 2000 to detain and continue to detain the aircraft for evidence and to assist in its further ongoing investigations for other possible breaches of the Act and the rules and regulations thereunder.

3. The breaches, charges, prosecutions and further investigations under the Civil Aviation Act 2000 and the rules and regulation thereunder were criminal in nature. As such, the Court being a civil court could not readily interfere and or intervene in the process by granting the kind of orders and or relief sought in the absence of a demonstration by the plaintiff that the Respondent has acted without authority and clearly erroneously.

4. S57(7) and s310 of the Civil Aviation Act 2000 grants a person such as the plaintiff a right of appeal and not a fresh action against the actions of the Respondent. The pleadings in the present proceedings appear not to be an appeal but a fresh action against the Respondent.

5. Given the foregoing, the plaintiff did not make out a case for a grant of the orders sought. Therefore, the application was dismissed with costs.

___________________________

N2711

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

OS. NO. 564 OF 2004

TASMAN AUSTRALIA AIRLINES PTY

Plaintiff

AND:

ANDREW OGIL, DIRECTOR OF CIVIL AVIATION AUTHORITY OF PAPUA NEW GUINEA

Defendant

WAIGANI: KANDAKASI, J.

2004: 13th and 19th October

JUDGMENTS & ORDERS – Declaratory orders – Whether a civil Court can interfere in investigations that criminal in nature – Allegations of improper exercise of statutory powers and substantial damages - Appropriate remedies – No authority and power in a Civil Court to restrain or otherwise interfere with investigation and process that are criminal in nature – Civil Aviation Act ss. 57, 277, 278 and 310.

CIVIL AVIATION – Alleged breaches of Civil Aviation Act - Unauthorized flight - Landing on decommission aerodrome - Detention of aircraft – Powers of Director of Civil Aviation Authority under the Act – Nature of alleged breach – Alleged breaches and investigations criminal in nature – Aircraft required and detained for investigations and evidence in prosecutions – Director of Civil Aviation Authority has powers to detain and keep the aircraft or object used to commit an alleged breach – No Civil Court can interfere with a criminal process that has begun - Civil Aviation Act s.57, 277, 278 and 310 – Civil Aviation Regulations s. 81 and 86 – Civil Aviations Rules 91.409 and 91.127.

Facts

An aircraft owned by the plaintiff flew into and landed at a decommissioned aerodrome without first applying for and obtaining an approved flight plan and landing from the Respondent. The Respondent charged the plaintiff, its owner who directed the flight and landing and the pilot of the aircraft for breaches of the Civil Aviation Act 2000 (CA Act) and rules and regulations under that. At the same time, he issued a detention notice and detained the aircraft for evidence in the prosecutions and for assistance in further and continuing investigations. The Plaintiff applied to the National Court in a purported exercise of a right of appeal seeking orders amongst others a nullification of the detention notice and for a release of the aircraft and sought that order in the interim pending a determination of its purported appeal.

Held

1. The question of whether the Respondent properly exercised his powers was a matter yet to be decided by the Court in the substantive proceedings. Meanwhile, for the purposes of the interim application, there appear to be a prima facie case of breaches of the CA Act and rules and regulations giving the Respondent reasonable grounds to detain the aircraft.

2. The Respondent has powers under s. 57 (2) (c) of the CA Act to detain and continue to detain the aircraft for evidence and to assist in its further ongoing investigations for other possible breaches of the Act and the rules and regulations thereunder.

3. The breaches, charges, prosecutions and further investigations under the CA Act and the rules and regulation thereunder were criminal in nature. As such, the Court being a civil court could not readily interfere and or intervene in the process by granting the kind of orders and or relief sought in the absence of a demonstration by the plaintiff that the Respondent has acted without authority and clearly erroneously.

4. Section 57 (7) and section 310 of the CA Act ...