Flyniu v Ata [2004] TOSC 49; CV 575 2004 (15 November 2004)

IN THE SUPREME COURT OF TONGA
CIVIL JURISDICTION
NUKU’ALOFA REGISTRY

NO. CV. 575/2004

BETWEEN:

1. FLYNIU AIRLINES LTD
2. AIR NATIONAL CORPORATE LTD
Plaintiffs

AND:

1. HRH PRINCE ‘ULUKALALA LAVAKA ATA,
2. PRIME MINISTER & MINISTER FOR CIVIL AVIATION
3. KINGDOM OF TONGA
4. PEAU-‘O-VAVA’U LTD
Defendants

BEFORE THE HON. CHIEF JUSTICE WEBSTER

Counsel: Mr Edwards for the Plaintiffs
Mr Gudsell, Mr Nielsen and Mr Havea for the 1st Defendant
The Solicitor-General and Miss Fukofuka for the 2nd Defendant
Mr Waalkens QC for the 3rd Defendant

RULING

Preliminary

This is the 3rd ruling in this application for judicial review, the previous 2, dated 17/20 August and 8 September, having concerned the question of leave in relation to the order revoking the 2nd Plaintiff’s Foreign Air Operator Certificate [FAOC] and the interlocutory injunction in relation to the revocation of the FAOC. This ruling concerns the issue of leave to apply for judicial review as it relates to issues of policy. Written submissions have been made by Counsel for each party, including a reply by Counsel for the Plaintiffs.

Plaintiffs’ claims and remedies sought

In this application in relation to issues of policy the Plaintiffs are claiming that the Government’s Domestic Civil Aviation Policy dated 30 July 2004 was arrived at with bias, and lacked impartiality and independence, in that the 1st and 2nd Defendants allowed the matter to be placed before Privy Council when the Regent at the time, HRH Crown Prince Tupouto'a, participated in the decision despite having a major pecuniary interest in the competing airline (the 3rd Defendant); that that decision was predicated on the pre-determination of the monopoly to the 3rd Defendant and the 1st Plaintiff was informed that the licence would be granted in favour of the 3rd Defendant. The Plaintiffs also claim that the 1st Defendant made several representations which in effect encouraged the participation of the 2 operators, without at any time during the course of the Open Meeting on 9 June 2004 disclosing that there would be a grant of an exclusive licence in the near future; and that if they had known that there would be the implementation of a policy allowing for a monopoly and exclusive licence over the domestic service, they would not have expended substantial capital for their application for a licence. The Plaintiffs further claim that the 1st Defendant changed the criteria for the grant of a licence without consultation with them, knowing that they would be severely affected by the changes, and the 1st & 2nd Defendants failed to properly consult with them about the new Policy before its approval and implementation, thereby denying the Plaintiffs a right to fair and just treatment; and that they had a legitimate expectation to have a licence up until the 15 September 2004, and the right of a renewal on the same grounds, but were denied those rights. They seek a review of the approval of the Policy dated 30 July 2004; an order quashing the decision of Privy Council approving that Policy; an order declaring that Policy as illegal, irrational and unreasonable; and a declaration that the Interim Domestic Civil Aviation Policy dated 8 June 2004 shall remain in place until so ordered.

The Plaintiffs also claim that the Policy dated 30 July 2004 is contrary to the statutory intention of the Constitution and the general purpose and principles of the Consumer Protection Act 2000 (without referring to any specific provisions of that Act). They also seek a review of the Policy itself and challenge it as adversely affecting the interests of their Constitutional rights.

The Plaintiffs also filed an application for further injunctive relief for mandamus to renew the FAOC, but my understanding is that they are not now proceeding with that application.

Order 27

Rule 2 of Order 27 (which deals with Judicial Review) of the Supreme Court Rules 1991 provides:

“(1) No application shall be made for judicial review unless the leave of the Court has been obtained in accordance with this rule.

(2) An application for leave to apply for judicial review shall be made promptly and in any event within three months from the date when grounds for the application first arose unless the Court considers that there is good reason for extending that period.

(3) An application for leave shall be made ex parte by filing

(a) a summons stating concisely the relief claimed and the grounds therefor;

(b) a copy of the proposed writ and statement of claim, and

(c) an affidavit verifying the facts relied on.

(4) The Court may grant the application without a hearing, but shall not refuse it without hearing the applicant.

(5) The Court shall not grant leave unless satisfied that the applicant has a sufficient interest in the matter to which the application relates.

(6) If the Court grants leave,

(a) it may do so subject to such terms as to costs and to giving security as it thinks fit; and

(b) it may grant such interim relief as appears necessary and just.”

Leave

The law concerning leave has already been referred to in the 1st ruling; and also in McElrea J’s written decision dated 6 September 2004 in Lau Lava Ltd v Minister of Labour, Commerce & Industries & Ors (CV 599/04).

There is no comprehensive statement of the criteria for determining applications for leave: Judicial Review of Administrative Action para 15-014 (5th Ed 1995) by de Smith, Woolf & Jowell. However, on the authorities the principal matters to be established by an applicant are those referred to in Order 27 Rule 2, ie:

A. A sufficient interest on the part of the applicant; and

B. an application made promptly and in any event within three months (or longer if there is good reason to extend such period); and

C. an arguable case for the grant of one or more of the extraordinary remedies listed in Order 27 Rule 1; and

D. a proper case for the exercise of the discretion, looking at any other relevant factors in the particular case.

Sufficient interest is the first and foremost consideration in relation to an application for leave to apply for judicial review; and it is a broad flexible concept. At this stage the applicant need only show that he has a prima facie or arguable case or reasonable grounds for believing that there has been a breach of a public duty: the Court should not go into the matter in depth but should consider on a quick perusal of the material then available whether it discloses what might on further consideration turn out to be an arguable case for the grant of the relief claimed. A decision at the initial stage on sufficient interest is not, except in simple cases where it is obvious that the applicant has no sufficient interest, a matter to be determined as a jurisdictional or preliminary issue in isolation on the applicant’s ex parte application for leave to apply. Instead it is properly to be treated as a possible reason for the exercise of the Court’s discretion to refuse the application when the application itself had been heard and the evidence of both parties presented, since it is necessary to identify ‘the matter’ to which the application relates before it is possible to decide whether the applicant has a sufficient interest in it. The decision does not preclude subsequent re-assessment on the facts as ultimately determined. The House of Lords was very clear that the question of sufficient interest was not to be treated as a preliminary issue: IRC v National Federation of Self-Employed and Small Businesses Ltd [1981] UKHL 2; [1981] 2 All ER 93 (HL).

In The Supreme Court Practice (1997) para 53/1-14/30 it is said that the Court has to consider whether there is a case fit for further investigation at a full hearing. Leave should be granted if, without going in to the matter in depth, there is an arguable case for granting relief.

The Court will be loathe to take a “short cut” by finding against an applicant on the topic of sufficient interest, or of standing: cf ’Akau’ola v Pohiva [1990] Tonga LR 159,165 (CA), where this was referred to as a “draconian” step which should only rarely be taken.

The opinions of the judges in the Small Businesses case illustrate the Court’s task at this stage. Lord Diplock said (pp 105-6):

“ ... this is a 'threshold' question in the sense that the court must direct its mind to it and form a prima facie view about it on the material that is available at the first stage. The prima facie view so formed, if favourable to the applicant, may alter on further consideration in the light of further evidence that may be before the court at the second stage the hearing of the application for judicial review itself.

The need for leave to start proceedings for remedies in public law is not new. It applied previously to applications for prerogative orders, though not to civil actions for injunctions or declarations. Its purpose is to prevent the time of the court being wasted by busybodies with misguided or trivial complaints of administrative error, and to remove the uncertainty in which public officers and authorities might be left whether they could safely proceed with administrative action while proceedings for judicial review of it were actually pending even though misconceived.

......

... The whole purpose of requiring that leave should first be obtained to make the application for judicial review would be defeated if the court were to go into the matter in any depth at that stage. If, on a quick perusal of the material then available, the court thinks that it discloses what might on further consideration turn out to be an arguable case in favour of granting to the applicant the relief claimed, it ought, in the exercise of a judicial discretion, to give him leave to apply far that relief. The discretion that the court is exercising at this stage is not the same as that which it is called on to exercise when all the evidence is in and the matter has been fully argued at the hearing of the application.”

Lord Wilberforce said in the same case (p 96):

“There may be simple cases in which it can be seen at the earliest stage that the person applying for judicial review has no interest at all, or no sufficient interest to support the application, then it would be quite correct at the threshold to refuse him leave to apply. The right to do so is an important safeguard against the courts being flooded and public bodies harassed by irresponsible applications. But in other cases this will not be so. In these it will be necessary to consider the powers or the duties in law of those against whom the relief is asked, the position of the applicant in relation to those powers or duties, and the breach of those said to have been committed. In other words, the question of sufficient interest cannot, in such cases, be considered in the abstract, or as an isolated point: it must be taken together with the legal and factual context. The rule requires sufficient interest in the matter to which the application relates.”

and Lord Scarman said in the same Small Businesses case (p 109-113):

“The sufficiency of the applicant's interest has to be judged in relation to the subject matter of his application.

......

The question is far from easy to answer, raising some complicated issues as to the rights of the private citizen to invoke the aid of the courts in compelling the performance of public duty or in righting public wrongs, rights whose scope and effect derive not from RSC Ord 53 but from the common law developed by the judges.

......

The sufficiency of the interest is, as I understand all your Lordships agree, a mixed question of law and fact. The legal element in the mixture is less than the matters of fact and degree, but it is important, as setting the limits within which, and the principles by which, the discretion is to be exercised.

......

The one legal principle, which is implicit in the case law and accurately reflected in the rules of court, is that in determining the sufficiency of an applicant’s interest it is necessary to consider the matter to which the application relates. It is wrong in law, as I understand the cases, for the court to attempt an assessment of the sufficiency of an applicant's interest without regard to the matter of his complaint. If he fails to show, when he applies for leave, a prima facie case, or reasonable grounds for believing that there has been a failure of public duty, the court would be in error if it granted leave. The curb represented by the need for an applicant to show, when he seeks leave to apply, that he has such a case is an essential protection against abuse of legal process. It enables the court to prevent abuse by busybodies, cranks and other mischief makers. I do not see any further purpose served by the requirements for leave.”

and Lord Roskill also said (p 117):

“The learned editor [of the White Book, Master Sir Jack Jacob QC] stated that that which was a ‘sufficient interest appears to be a mixed question of fact and law, a question of fact and degree and the relationship between the applicant and the matter to which the application relates, having regard to all the circumstances of the case’. With this admirably concise statement, I respectfully agree.”

Submissions

The Solicitor-General for the 2nd Defendant submitted that in so far as the Plaintiffs' pleadings relate to issues of policy, the underlying cause of action is non-justiciable, as the development of policy is a political decision as opposed to the exercise of a statutory power and is not reviewable by the Court, unlike the decisions of a decision-maker acting under statute. She submitted that it is well recognised that decisions to develop, adopt and implement policy are part of the political process and are not amenable to the supervision of the Courts, as there is no justiciable basis on which the Court can intervene. In doing so she referred to 1 unreported New Zealand case, Rukutai Watene and Anor v The Minister in Charge of the Treaty of Waitangi and Ors (High Court, New Zealand, 11 May 2001, CP 120/01, Goddard J), but no copy was provided to the Court. The Solicitor-General’s submissions were in effect supported by Counsel for the other 2 Defendants.

In response Counsel for the Plaintiffs submitted that that was not entirely correct at all, with reference to similar circumstances where the Department of Trade in England changed a policy to exclude/revoke the licence of Laker Airways in England and the Court allowed a review and relief to be granted (Laker Airways Ltd v Department of Trade [1976] EWCA Civ 10; [1977] 2 All ER 182 (CA)). He submitted that the change of the Government’s Policy from an open competition policy with more than one domestic airline to a monopoly policy, resulting in the 2nd Plaintiff’s FAOC being revoked early and denying it the right of renewal amounted to sufficient grounds for review, especially as the Policy was, in itself, not a justifiable reason for allowing for a revocation of the licence. In light of the judgment in Laker Airways he submitted that there are sufficient grounds set out in the pleadings to entitle the Plaintiffs to a right to review the Policy, in particular the manner in which it was changed, the time in which it was implemented and the manner in which the 2nd Plaintiff’s FAOC was revoked. In his submissions Counsel for the Plaintiffs also submitted that it was quite clear from para 31 of the Statement of Claim that the Policy itself, in terms of its content, is not the specific subject of the challenge, rather the manner in which it was approved and the denial of the right to be heard in respect of the Policy.

Beyond those brief statements of the legal position I regret that there were no submissions on the legal position with regard to justiciability, yet when I refer to de Smith’s Judicial Review of Administrative Action I find that it is a developed subject with a wealth of legal authority on it, as mentioned below, although those authorities are only the principal ones bearing on the subject. I wish to make it clear that Counsel have a duty to bring all relevant authorities to the attention of the Court, whether or not they assist the party for whom he or she appears, and I shall expect that to happen in future: Halsbury’s Laws (4th Ed) Vol 3(1) paras 415,470; Glebe Sugar Refining Co Ltd v Greenock Port and Harbours Trustees [1921] 2 AC 66 (HL). While skeleton references to a single case may be adequate in matters of urgency, that was not the position in this instance and there was ample time for proper citation of authority to be made. It is also important that, if an unreported case is being cited (and particularly one from another jurisdiction), a copy is made available to the Court and other parties with the submissions: in this instance that would have disclosed that the case of Watene itself gave little assistance and to reach reported authority it was necessary to consult another case referred to in it (Hayes & anor v The Waitangi Tribunal & ors (High Court, New Zealand, 10 May 2001, CP 111/01, Goddard J), also unreported).

Justiciability

The best starting point on justiciability is Judicial Review of Administrative Action [de Smith] para 1-032, where it is said that courts, like other institutions, including Parliament, are subject to institutional constraints and must take care not to trespass on the decision-making functions best suited to other branches of government. Judicial review permits the courts in some cases to interfere with the substance of a decision itself: but courts should avoid interfering with the exercise of official discretion when its aim is the pursuit of policy, as they are not institutionally suited to engage in the task of weighing utilitarian calculations of social, economic or political preference, which tasks are best suited to institutions in the political arena.

Decisions which the courts are ill-equipped to review are those which are not justiciable – ie not amenable to the judicial process - either because they admit of no objective justification or because the issues they determine are polycentric in effect (in the sense that an alteration or quashing of the decision will require a rearrangement of other decisions, each of which have interacting points of influence). Such decisions include those that necessitate the evaluation of social and economic policy, or the allocation of scarce resources among competing claims. (de Smith para 6-031)

One of the early occasions when the exercise of a prerogative power was examined by the courts was in the case cited for the Plaintiffs, Laker Airways Ltd v Department of Trade [1976] EWCA Civ 10; [1977] 2 All ER 182,193 (CA), where Lord Denning MR said:

“Seeing that the prerogative is a discretionary power to be exercised for the public good, it follows that its exercise can be examined by the courts just as any other discretionary power which is vested in the executive. ... when discretionary powers are entrusted to the executive by statute, the courts can examine the exercise of those powers, so as to see that they are used properly, and not improperly or mistakenly. By mistakenly, I mean under the influence of a misdirection in fact or in law. Likewise, it seems to me that, when discretionary powers are entrusted to the executive by the prerogative - in pursuance of the treaty-making power - the courts can examine the exercise of them so as to see that they are not used improperly or mistakenly.”

Although that was subsequently criticised as being obiter and "far too wide" (by Lord Roskill in Council of Civil Service Unions v Minister for Civil Service [1983] UKHL 6; [1984] 3 All ER 935,955 (HL) (the GCHQ case), and see de Smith para 28-009:

“Judicial review is not now simply excluded because the act in issue involves exercise of prerogative power. The question is whether the subject matter to which use of the prerogative has been directed is justiciable and how far judicial investigation of those issues may extend.”

Then in the New Zealand case of CREEDNZ Inc v Governor-General [1981] 1 NZLR 172,197-8 (CA) (referred to in Hayes) it was said by Richardson J:

“The willingness of the Courts to interfere with the exercise of discretionary decisions must be affected by the nature and subject-matter of the decision in question and by consideration of the constitutional role of the body entrusted by statute with the exercise of the power. Thus the larger the policy content and the more the decision-making is within the customary sphere of elected representatives the less well-equipped the Courts are to weigh the considerations involved and the less inclined they must be to intervene.”

Around the same time, in a case involving relations with a foreign state, Lord Wilberforce said that:

“... the ultimate question what issues are capable, and what are incapable, of judicial determination must be answered in closely similar terms in whatever country they arise, depending, as they must, on an appreciation of the nature and limits of the judicial function.”

and – in memorable words – he said that there are "no judicial or manageable standards by which to judge these issues”, and if the court tried it would be "in a judicial no-man's land": Buttes Gas v Hammer [1981] 3 All ER 616,632-3 (HL); de Smith para 8-031 n 71.

The question of whether or not prerogative powers (ie common law powers of the Crown which have no statutory source, de Smith para 6-038) could be reviewed was authoritatively determined, in favour of their being reviewable, by the House of Lords in Council of Civil Service Unions v Minister for Civil Service [1983] UKHL 6; [1984] 3 All ER 935 (HL) (the GCHQ case), where the majority were of the opinion that the exercise of powers authorised by the prerogative may be reviewable when their exercise is open to judicial review, depending on the subject-matter: but on the other hand may relate to areas which because of their nature are not justiciable (de Smith para 6-042). As Lord Roskill said in the GCHQ case (p 954,956):

"It is not for the courts to determine whether a particular policy or particular decisions taken in fulfilment of that policy are fair.

......

Prerogative powers such as those relating to the making of treaties, the defence of the realm, the prerogative of mercy, the grant of honours, the dissolution of Parliament and the appointment of Ministers as well as others are not, I think, susceptible to judicial review because their nature and subject matter is such as not to be amenable to judicial process."

Lord Scarman considered (p 948) that:

" ... the controlling factor in determining whether the exercise of prerogative power is subject to judicial review is not its source but its subject matter.”

and Lord Diplock stated (p 951):

“Such decisions will generally involve the application of government policy. The reasons for the decision-maker taking one course rather than another do not normally involve questions to which, if disputed, the judicial process is adapted to provide the right answer, by which I mean that the kind of evidence that is admissible under judicial procedures and the way in which it has to be adduced tend to exclude from the attention of the court competing policy considerations which, if the executive discretion is to be wisely exercised, need to be weighed against one another, a balancing exercise which judges by their upbringing and experience are ill-qualified to perform. So I leave this as an open question to be dealt with on a case to case basis if, indeed, the case should ever arise.”

Taylor LJ distinguished those acts at "the top of the scale of executive functions under the prerogative" involving "high policy", which were not justiciable, from "administrative decisions, affecting the rights of individuals and their freedom of travel", which are justiciable: R v Secretary of State for Foreign & Commonwealth Affairs ex p Everett [1988] EWCA Civ 7; [1989] 1 All ER 655,660 (CA); de Smith para 6-043.

In Burt v Governor-General [1992] 3 NZLR 672,681 (CA), it was held that the mere fact that a decision had been made under the prerogative did not exempt it from review in the courts. The test was rather whether the subject-matter of the decision was justiciable; and a challenge in the courts would be permitted in so far as issues arose of a kind with which the Courts were competent to deal: de Smith para 6-046. The court in R v Secretary of State ex p Bentley [1993] 4 All ER 449,452-3 (QBD DC) held that the powers of the court could not any longer be ousted simply by invoking the word ‘prerogative’:

"The question is simply whether the nature and subject matter of the decision is amenable to the judicial process. Are the courts qualified to deal with the matter or does the decision involve such questions of policy that they should not intrude because they are ill-equipped to do so?"

It is stated in de Smith para 6-047:

“Like other discretionary powers, it all depends upon whether the impugned decision is "justiciable". The courts, in assessing this question, must be sensitive to their own limits to evaluate questions of high policy and questions involving the allocation of scarce social and economic resources. Yet the courts should also take a realistic view of the distinction between an act of the "Crown-as-monarch" and that of "Crown-as-executive". The New Zealand Court of Appeal [in Burt] was surely right to point out the need, in the interest of the rule of law, for challenge to be permitted to issues on which the courts are competent to pronounce.”

In Wellington City Council v Woolworths NZ Ltd (No 2) [1996] 2 NZLR 537,545-6 (CA) it was said:

“... there are constitutional and democratic constraints on judicial involvement in wide public policy issues. There comes a point where public policies are so significant and appropriate for weighing by those elected by the community for that purpose that the Courts should defer to their decision except in clear and extreme cases. The larger the policy content and the more the decision-making is within the customary sphere of those entrusted with the decision, the less well equipped the Courts are to reweigh considerations involved and the less inclined they must be to intervene.”

In Airedale NHS Trust v Bland [1992] UKHL 5; [1993] 1 All ER 821,886-7 (HL) Lord Mustill said:

“If the criteria for the legitimacy of the proposed conduct are essentially factual, a decision upon them is one which the court is well accustomed to perform ... “

The conclusion to be drawn from all these authorities is quite simply that whether or not an application for judicial review is justiciable depends on the nature and subject matter of the decision which is being challenged, and that certain matters of high policy involving political judgment – as distinct from administrative decisions - are inherently unsuitable for review by the courts because in practical terms the courts are not competent to do so as they would be in a judicial no man’s land with no judicial or manageable standards by which to judge the issues. The larger the policy content of the issue, the less likely is it to be suitable for the courts to intervene. This is where the law comes into the question of sufficient interest.

Legitimate expectation

A legitimate expectation arises where a person responsible for taking a decision has induced in someone who may be affected by the decision a reasonable expectation that he will receive or retain a benefit or that he will be granted a hearing before the decision is taken; and in such cases the courts have held that the expectation ought not to be summarily disappointed: de Smith para 8-037.

In the GCHQ case Lord Diplock considered (p 949) that a prerogative power may be subject to judicial review if its exercise will have consequences for some person either:

"(a) by altering the rights or obligations of that person which are enforceable by or against him in private law; or (b) by depriving him of some benefit or advantage which either (i) he has in the past been permitted by the decision-maker to enjoy and which he can legitimately expect to be permitted to continue to do until there has been communicated to him some rational grounds for withdrawing it on which he has been given an opportunity to comment or (ii) he has received assurances from the decision-maker will not be withdrawn without giving him first an opportunity of advancing reasons for contending that they should not be withdrawn."

Lord Diplock went on to state (p 951):

“As respects 'procedural propriety', I see no reason why it should not be a ground for judicial review of a decision made under powers of which the ultimate source is the prerogative. ... Indeed, where the decision is one which does not alter rights or obligations enforceable in private law but only deprives a person of legitimate expectations, 'procedural impropriety' will normally provide the only ground on which the decision is open to judicial review. But in any event what procedure will satisfy the public law requirement of procedural propriety depends on the subject matter of the decision, the executive functions of the decision-maker ... and the particular circumstances in which the decision came to be made.”

In that same case Lord Fraser said (p 944):

“Legitimate, or reasonable, expectation may arise either from an express promise given on behalf of a public authority or from the existence of a regular practice which the claimant can reasonably expect to continue.”

Government Policies on Domestic Civil Aviation

The Government’s Interim Policy on Domestic Civil Aviation Operations, after Royal Tongan Airline had ceased operation, was:

“Interim Government Policy on Domestic Operations

Preamble:

In order to meet the social and economic needs of the peoples of the Kingdom of Tonga, His Majesty's Government has set the following as interim policy for domestic operations.

Policy:

1. The Ministry of Civil Aviation shall be responsible for the issuance of safety and economic approval for all air transport operations within the Kingdom;

2. Safety and Security Conventions and associated legislation shall be paramount in the consideration and assessment of applications for domestic operations;

3. There will be no restrictions on the number of operators approved, unless in the interests of 2 above it is considered by the Ministry of Civil Aviation, that Safety and Security of the air transport system will be compromised;

4. That until such time the Ministry of Civil Aviation has reviewed the state of the domestic air transport operations and a substantive policy or regulations developed (expected by the 1st November, 2004), this policy shall remain in force; and

5. Nothing in this Policy exonerates a domestic operator from the laws of Tonga pertaining to trade and taxation.

by Approval of His Majesty’s Cabinet

8th June, 2004.”

The Government’s new Policy, approved by the Privy Council on 30 July 2004, is:

“Government of the Kingdom of Tonga

Policy on Domestic Operations

Preamble:

Whereas the Government of the Kingdom of Tonga recognising the importance of a sustained safe and secure domestic air transport system as a catalyst and essential service for the socio economic development of the peoples of the Kingdom of Tonga: and

Whereas the Government of the Kingdom of Tonga realising the limited financial and human resources with appropriate technical capabilities in aviation and the limited market size to sustain economic operations based on free market forces:

Therefore have approved that only one operator will be licensed for the provision of scheduled air transport services within the Kingdom.

Policy:

1. The Ministry of Civil Aviation shall be responsible for the issuance of safety and economic approval for all air transport operations within the Kingdom:

2. Safety and Security Conventions and associated legislation shall be paramount in the consideration and assessment of applications for domestic operations:

3. That for a period of 24 months from the date of effect of this policy only one operator will be approved to provide scheduled domestic air services within the Kingdom:

4. That selection of the single operator will be based upon a competitive, transparent and even handed manner based upon the criteria detailed in schedule 1 to this policy: and

5. That short term non-scheduled charter operations will be considered by the Ministry of Civil Aviation based upon the needs of the market, due to unforeseen traffic demands and the inability of the approved scheduled operator, providing the service.”

Civil Aviation Act 1990

Section 3(1) of the Civil Aviation Act 1990 provides:

“Minister of Civil Aviation

3. (1) There shall be a Minister of Civil Aviation whose functions shall be -

(a) To exercise a general superintendence and control over all matters relating to Civil Aviation in Tonga;

(b) to control the use of the airspace over Tonga and the waters adjacent thereto and to regulate both civil and military operations in such airspace in the interest of the safety and efficiency of both;

(c) to administer this Act, the regulations made thereunder and any other enactment the administration of which is assigned to him;

(d) to exercise such other functions as may from time to time be lawfully conferred upon him.”

Therefore the Cabinet and Privy Council made the Domestic Civil Aviation Policies under their prerogative powers, and not under any statutory powers.

Consumer Protection Act 2000

The long title of this Act, from which its scope can be ascertained, is “An Act to make provision for the protection of the consumer and for the establishment of fair trade practices and for other matters connected therewith or incidental thereto”. In section 2 “consumer is defined as “a person who acquires goods or services from a manufacturer or trader”. While I note that section 24 covers exclusive dealing and section 27 covers monopolisation, in the whole circumstances I cannot see that this Act has any relevance to the issues of policy in this claim.

Grounds of decision

In relation to the question of review as it relates to issues of policy, the Plaintiffs’ Counsel submits that it is quite clear from paragraph 31 of the Statement of Claim that the Policy itself, in terms of its content, is not the specific subject of the challenge, rather the manner in which it was approved and the denial of the right to be heard in respect of the Policy. However that is not entirely clear from the wide terms of Para 31 and other paras of the Statement of Claim, such as Paras 33 and 34. Indeed the same submissions indicate later in para 2.4 that:

“2.4 The policy itself is challenged upon the grounds that it was contrary to the terms and conditions that were the subject of the original policy advocating open and fair competition. As it affects the rights of the Plaintiffs the Plaintiffs had a legitimate expectation that they would be heard on the design and content of the Policy. No such right was afforded to the Plaintiffs. This is pleaded at paragraph 33 of the Statement of Claim. It is also stated and re-stated in the letters of the First Plaintiff to the Secretary of Civil Aviation and the First Defendant.”

In any event I have come to the conclusion that the matter to which the application relates, the Domestic Civil Aviation Policy of the Kingdom of Tonga, as decided at the level of the Cabinet and the Privy Council, is inherently unsuitable for review by the Supreme Court because in practical terms the Court would not be competent to do that. A review of that Policy would depend almost entirely on policy, economic and political considerations – for example the very question of whether to proceed by way of a monopoly service as opposed to open competition – and not on straight factual criteria which would be amenable to judgment by the Court. The Court would indeed be in a judicial no man’s land, with no judicial or manageable standards by which to judge the issues. Those issues of policy are thus not justiciable in terms of the authorities, so there is not an arguable case for the grant of the relief claimed in relation to issues of policy, nor a case fit for further investigation at a full hearing.

It is quite clear that high policy as such, which I consider is involved here, is not justiciable and so not reviewable - although as already decided, the administrative type decisions concerning the FAOC, arising from policy, are reviewable and leave has already been given for that. This is not a situation where there is a clear and extreme case inhibiting the Court from deferring to the 2nd Defendant’s decision (in terms of the Wellington City Council decision).

In relation to the Plaintiffs’ applications for review of the manner in which the policy was approved, I consider the Court must again take a practical approach. As Lord Roskill has said, it is not for the Court to determine whether a particular policy or particular decisions taken in fulfilment of that policy are fair. If the substance of the policy is not justiciable, it is illogical to review the manner in which it is arrived at - ie even if the policy may have been arrived at irregularly, that cannot affect the justiciability of the policy. Further, it is difficult to understand what the purpose of a review would be, or what it would achieve: the Court cannot look at a Wednesbury question, as that would bring it into the field of making value judgments on the factors to be taken into account or not in making policy. Even if the Court were to uphold the Plaintiffs’ challenge, it cannot enter into the field of making this policy or even telling the Government what factors it should or should not take into account in deciding on the particular policy.

In other words if a matter is not justiciable, that is a blanket which prevents review on any ground (except that of legitimate expectation, referred to below). The refusal of leave at this stage is justified, particularly as it will remove uncertainty in relation to the standing of the Domestic Civil Aviation Policy. The Plaintiffs’ constitutional rights are being respected by this judicial consideration of their application, but no specific grounds under the Constitution were raised by their Counsel and beyond that I am not aware of any specific grounds for constitutional challenge.

I have also considered whether the Plaintiffs are entitled to a review of the policy issues because they had legitimate expectations as defined in the authorities referred to above. I have studied their statement of claim and affidavits, but I cannot see the basis on which they can claim that they were given an express promise by or on behalf of the Defendants about the previous interim Policy continuing. The Plaintiffs’ own affidavits show that the Interim Policy dated 8 June was specifically that – ie an interim policy – and it states in terms that it will remain in force until a review has been carried out, which was expected by 1 November. In other words it was clear that it was not a permanent policy and changes might occur within months. In addition, even the 2nd Plaintiff’s FAOC stated on its face that it would remain in force until 15 September “unless otherwise suspended or revoked”, so no legitimate expectation could necessarily be inferred from that. This is therefore not a proper case for the exercise of judicial discretion by granting leave. The circumstances were such that there was no regular practice which the Plaintiffs could reasonably expect to continue.

In relation to the case of Laker Airways referred to by the Plaintiffs, while that was indeed one of the cases which led the way forward for review of prerogative powers and it did concern airline licences, it concerned a very different situation (a conflict between the use of prerogative powers as against statutory powers), so cannot help the Plaintiffs beyond what it did in relation to development of the law as a whole.

I very much appreciate that on an application for leave the decision on sufficient interest is not to be treated as a jurisdictional or preliminary matter; and that the Court should not go into the matter in depth but should consider on a quick perusal of the material available whether it discloses what might on further consideration turn out to be an arguable case for the grant of the relief claimed in relation to legitimate expectations as regards issues of policy. Nevertheless in these circumstances, for the reasons given above I find that the Plaintiffs have not shown that they have a prima facie or arguable case based on legitimate interest in relation to issues of policy.

I therefore refuse leave to the Plaintiffs to apply for judicial review as it relates to issues of policy.

However the Plaintiffs are not left entirely without the opportunity to state their grievance, as I have already given leave for a judicial review of the decision to revoke the FAOC. Further issues in respect to procedure etc for the full hearing of that review should now be taken up by Counsel, by fax to the Court in the first place.

Delay

I much regret the delay in issuing the decision, but in addition to commitments in other important cases I found I had to spend a considerable amount of time seeking out authorities on the questions of justiciability and legitimate expectation, for the reasons referred to above.

THE COURT THEREFORE ORDERS THAT:

1. The Plaintiffs are refused leave to apply for judicial review as it relates to issues of policy.
   
2. Further issues in respect to procedure etc for the full hearing of the judicial review of the decision to revoke the 2nd Plaintiff’s FAOC should now be taken up by Counsel, by fax to the Court in the first place.
   

NUKU’ALOFA: 15 November 2004

R M Webster MB
Chief Justice