Martens v Ume [2000] PGNC 98; [2000] PNGLR 88 (14 June 2000)

[2000] PNGLR 88

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

CAPTAIN FRED D. MARTENS

V

MIRIA UME,
DIRECTOR OF DEPARTMENT OF TRANSPORT & CIVIL AVIATION; and

THE INDEPENDENT STATE OF PAPUA NEW GUINEA

WAIGANI: LOS J
18 April; 6, 14 June 2000

Facts

The appellant’s licence was suspended by the Controller of Civil Aviation under the Civil Aviation Act and the notice of suspension was served on the appellant on 1 March 2000. Under s 272(1) of the Civil Aviation Act, an aggrieved person may elect to file a submission to the Controller for review by a board of review or to appeal to the National Court. Under s 272(2) of the Act, such submission is to be lodged with Controller within 14 days, after service on the person aggrieved of notification of the decision of the Controller. However, the appellant did not take any action until 21 March 2000, when he filed an appeal with the National Court, well after 14 days requirement under s 272(2) of the Civil Aviation Act, and served the notice of appeal on the Controller on 23 March 2000. The respondents objected to the appeal on the ground that the appeal was incompetent.

Held

1. When a party enters into the National Court arena, after exercising the right to elect under s 272(2) of the Civil Aviation Act, the National Court Rules apply as to time of hearing, as to service, as to natural justice and as to submission.
   
2. The provisions of s 272(2) of the Civil Aviation Act, requiring a submission to be filed within 14 days, do not apply to an appeal lodged with the National Court; their application is limited to a submission made for a review by a board of review constituted under the Civil Aviation Act.
   

Papua New Guinea cases cited

Re Central Banking (Foreign Exchange & Gold) Regulations [1987] PNGLR 433.

Counsel

B Frizzel, for respondent.
N Kubak, for appellant.

14 June 2000

LOS J. Mr Frizzel has raised an objection on behalf of the Controller of Civil Aviation on the ground that the appeal by the appellant is incompetent. Incompetence arises because of the failure by the Appellant to lodge and serve his appeal on the controller within 14 days of the service of charge/suspension order on him. He relies on s 272 of the Civil Aviation Act to say that. The section says:

"272. Appeal

(1) A person aggrieved by —

(a) a refusal of the Controller to grant a licence or certificate; or

(b) the variation or cancellation of a licence or certificate, or the suspension of a licence or certificate otherwise than under Section 268 or 270,

may elect-

(c) to have the matter submitted for review to a board of review; or

(d) to appeal to the National Court.

(2) A submission under Subsection (1) shall be -

(a) in writing, signed by the person aggrieved; and

(b) lodged with the Controller within 14 days after service on the person aggrieved of notification of the decision of the Controller.

(3) On receipt of advice from the Controller that a submission has been lodged the Minister shall establish a board of review in accordance with Section 273.

(4) A submission to a board of review shall be accompanied by a deposit of K60.00."

As matters of fact the appeal was lodged well after 14 days requirement. The notice of suspension was served on the appellant on 1 March 2000. A notice of appeal was served on the controller on the 23 March, after having filed with the National Court on 21 March.

Obviously, and, at the outset, one cannot invoke the National Court Act and the Rules at the same time as invocation of the s 272 of the Civil Aviation Regulations if they are different in relation to lodging of appeals. There is a need to harmonise the application of the two. In this respect, I agree with Mr Frizzel that here is a task of statutory interpretation.

The Aviation Act regulates, controls and promotes aviation services. There is a substantial interest in the aviation business to those who are involved in aviation industry within the country and beyond the country. The special nature of it is that a lot of flying is involved. Hence skills and competence required must be maintained at certain level all the time in order to ensure that lives of the travellers are not exposed unnecessarily to risk. This appears to be the aim that Civil Aviation Regulations seek to regulate or control. Hence a large part of the Regulations deals with airworthiness of the aircrafts themselves (Part III for example). They deal with the qualifications of the crew (Part IV), conditions of flight (Part IX), Rules of the Air (Part X) and grant and suspension of licences (Part XIII). With all these in mind, the court must, at the outset, in order to enforce the regulations, give the plain meaning of the words "A submission under subsection (1) shall be in writing ... and lodged with the Controller within 14 days or after service on the person aggrieved ..." However, when viewed in relation to the scheme under which the National Court operates that is under the National Court Act and the National Court Rules, it does not make sense. In other words, it is absurd. When a party enters into the National Court arena, the National Court Rules apply as to time of hearing, as to service, as to natural justice, and as to submissions. It is my view therefore the phrase "a submission under subsection (1)" has its application limited to a review by a board of review and not in relation to an appeal to the National Court. Such an interpretation, in my view, is not "an unruly — horse" which must not be allowed, Re Central Bank Regulations [1987] PNGLR 433. Firstly, by looking at the words in s 272 alone, two distinct processes are meant to cover: the Board of Review hearing and the National Court hearing. The words in subsection (1)(c), subsection (2)(a) and (b), subsections (3) & (4), all relate to process towards getting a hearing before a Board of Review. They fall in well with section 273 - Constitution of the Board, section 274 - proceedings before the Board, section 275 - summonsing of witnesses, section 276 - decisions of the Board. Secondly, and, on the other hand, when an aggrieved person decides to appeal to the National Court, he has a big leap. He goes out of the application of any of the subsections and sections I referred to, except in relation to the requirements under sections 277 to 279. Section 277(1) makes this clear that is "this section applies to an appeal to the National Court under s 272(1)(d)."

For the purpose of an appeal before the national court, a submission does not constitute an appeal; a notice of appeal gives an appellant entry to the appeal process. On a quick look, there does not appear to be a specific form under the Civil Aviation Act, but a form similar to Forms 66 and 67 pertaining to appeals from local court in Order 18 of the National Court Rules should be sufficient on direction of the Court.

The objection to the appeal on the grounds of incompetence therefore must be dismissed.

Lawyers for respondent: Warner Shand Lawyers.
Lawyers for appellant: Kubak Lawyers.