Re the Director of Civil Aviation v Papua New Guinea Air Pilots Association [1982] PGNC 20; N381 (24 June 1982)

Unreported National Court Decisions

N381

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

M.P. NO. 69 OF 1982
IN THE MATTER OF THE DIRECTOR OF CIVIL AVIATION
AND
THE PAPUA NEW GUINEA AIR PILOTS’ ASSOCIATION
APPLICANT

Waigani

Woods AJ
23-24 June 1982

APPLICATION FOR WRIT OF CERTIORARI - whether certiorari lies against the Director of Civil Aviation - principles discussed.

APPLICATION REFUSED.

Cases Referred To

Rex v. Electricity Commissioners (1924) 1 K.B. 171

Rex v. Legislative Committee of the Church Assembly (1928) 1 K.B. 411

Minister of Health v. The King (on the Prosecution of Yaffe) (1931) A.C. 494

Nakkuda Ali v. M.F. De S. Jayaratne (1951) A.C. 66

WOODS AJ: This is an aption by the Pthe Papua New Guinea Air Pilots’ Association for a writ of certiorari to remove into the Court an order dated 8th June 1982 by the Director of Civil Aviation approving the operation of FOKKER F28 aircraft on regular transport services to Rabaul, on the grounds that the said order is ultra vires the powers of the Director under the Civil Aviation Act.

The basis of the jurisdiction of the courts by way of certiorari has been most precisely stated by Atkin, L.J. in Rex v. Electricity CommissionersN381.html#_edn949" title="">[cmxlix]¹:

“... the operation of the writs has extended to control the proceedings of bodies which do not claim to be, and would not be recognised as, Court of Justice. Wherever any body of persons having legal authority to determine questions affecting the rights of subjects, and having the duty to act judicially, act in excess of their legal authority they are subject to the controlling jurisdiction of the King’s Bench Division exercised in these writs.”

And as was said by Lord Hewart, C.J. in Rex v. Legislative Committee of the Church AssemblyN381.html#_edn950" title="">[cml]² when qu this passage:

“In order that a body may satisfy the required test it is not enough that it should have legal authority to determine questions affecting the rights of subjectere must be super-added to d to that characteristic the further characteristic that the body has the duty to act judicially.”

Does the Director of Civil Aviation in granting operational approval for F28 aircraft operation at Rabaul have the above characteristics?

It is clearly accepted that a single person discharging public functions under legislation can be a body having legal authority. However is this a question affecting the rights of subjects and does the Director have the duty to act judicially? I am unable to agree that the order itself affects the rights of subjects or grants a benefit to anyone. The order is really a granting of approval or a dispensation from complying with regulations. The order itself only creates an opportunity. Subjects themselves must take a separate step to act or take advantage of the opportunity. The bare order itself does not give or take away anything from anybody in particular.

I myself personally may agree as a matter of my subjective opinion that people who take advantage of that order or authorization may find themselves participating in an unsafe form or style of transport but that is as a result of the separate actions by persons who decide to take advantage of the order or permission. It is not as a direct consequence of the order itself. It has been well established that bodies or persons who grant or refuse a licence to one person as against another may be open to review by writ of certiorari as quite clearly someone may have been denied something. And also bodies who award compensation are open to certiorari if they fail to take into account certain criteria, and bodies or persons who impose rent or charges or fix prices and who fail to take account of changes of circumstances may be reviewable by writ of certiorari. Also a Minister who adopts a property improvement plan as in Minister of Health v. The King (on the Prosecution of Yaffe)N381.html#_edn951" title="">[cmli]³, may be directly affecting the rights of owners of property in the area. However none of these examples appear to me to be the same as a Director of Civil Aviation who issues an order under powers given him by the Civil Aviation Act whereby an opportunity is given to any person who has the means and wants to avail himself or itself of the opportunity.

Having the duty to act judicially doesn’t mean it has to be akin to a question between parties. It has been expressed more as a requirement to follow a quasi-judicial procedure. One way of looking at it is to see if he was determining a question. In Nakkuda Ali v. M.F. De S. JayaratneN381.html#_edn952" title="">[cmlii]⁴ the authority wt determininmining a question but rather he was taking executive action to withdraw a privilege, he was not required to act judiy and therefore the writ of certiorari did not lie. Here the Director of Civil Aviation is n is not deciding questions between parties, there has been no denial of natural justice in denying any person a hearing as there is no requirement for a hearing. The Director is taking executive action to authorise, as he has the power to, the dispensation of technical requirements. There appears to be no dispute that the Director has power under the Act to, shall we say, grant dispensations but in this case before me the applicant seems to be saying the Director is making too many dispensations. This seems to me to be an executive action or question of policy which the Court has no power to review by way of writ of certiorari.

There is also no apparent error of law on the face of the order, this being another way of looking at the requirement to act judicially.

Neither does the Director have the trappings or general characteristics of a court or tribunal deciding rights.

I am therefore not satisfied that the Director in making the order of 8th June 1982, is determining questions affecting the rights of subjects; nor does he have the duty to act judicially. The lack of either one of those characteristics would be enough to rule out the application of a writ of certiorari in this case.

Of course I am not saying that there may be no remedy. What I am saying is that a writ of certiorari does not lie in this case. It may be that there is some other procedure to bring this question before the Court.

I dismiss this application.

Solicitor for the Applicant: Young & Williams

Counsel: M. Challinger

N381.html#_ednref949" title="">[cmxlix] ^{(1924) 1 K.B. 171 at 205}

N381.html#_ednref950" title="">[cml] ^{(1928) 1 K.B. 411 at 415}

N381.html#_ednref951" title="">[cmli] ^{(1931) A.C. 494}

N381.html#_ednref952" title="">[cmlii] ^{(1951) A.C. 66}