Ansett Transort Industries Ltd v Morris, P.E.

[1987] FCA 190

NOT FOP. DISTRIBUTION

IN THE FEDERAL COURT OF ATJSTRALIA )

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NEW SOUTH WALES	DISTRICT	REGISTRY	)	No. G138 of 1987
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DIVISION GENERAL 1

ANSETT TRANSFORT INDTJSTRIES

LIMITC,l2

Applicant

FETER FREDERICK MORRIS who is

sued in his capacity as

Minister of State for Aviation

First Respondent

RAE MARTIN TXZLOR xho is sued in his capacity as Secretary of

the Department of State for

Aviation

Second Respondent

EAST-HEST	AIRLINES (OPEXATIONS)
LIMITED

13 April 1987

REASONS FOR JUDGMENT

LOCKHART J.

On last Friday afternoon I gave leave

Industries-6imited ("Ansett") to file in Court an application seeking

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an order of review under the Administrative Decisions (Judicial

Review) Act 1977 ("the Judicial Revlew Act") of declsions of the

Minister for Avlation said to have been made between February 1987 and

E April 1387 to grant acquisition certificates for two F28 aircraft

pursuant to para. 19(l)(c) of the Airlines Equipment Act 1958 ("the

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Equipment Act" ) ti. E2st-Nest Airlines ioperations) Limlted
("East-West"). The appilcatlon also seeks an order yuashlng the
decisions of the Pllnlster to grant the asyuisltion certificates and an
order restralning the Secretary of the Department of Aviaticm .- from
granting approval pursuant to Regulatlon 4N of the Customs (Prohibited
Imports) Regulations to East-West to lmport the two F28 aircraft into
Australia. Ansett claims lnterlocutory relief, namely:
(a) an order, pursuant to S . 15 of the Judicial Review Act,

suspending the operation of the Minister's decision to grant

acquisition certificates or staying all or any proceedings

under the Minister's decisions to grant the acquisition

certificates, In each case rjending the hearing and

determlnation of this prxzeding nr furthsr order; and

an order restraining the Secretary from granting lmport

approval pursuant to Regulation 4N of the Customs (Prahibited

Imports) Regulatlons to East-West until the f m a l hearing and

determination of this proceeding.

Ansett also seeks other orders which it is unnecessary for

present purposes to mention.

Ansett's application was not made ex parte notwithstanding

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the speed wlth which the proceeding was commenced. The Minister, the

Secretary and East-West were represented by counsel before me on

l	Friday.	They oppose the grant of interlocutory relief.
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In February this year I heard proceedings G584186 and

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G585 1 8 6 . Fro ceeding G585186 was commenced by Ansett agalnst the

Minister. It sought to review both the Minister's estimate of traffic

and determination of capacity for East-blest for the period 1 February

to 30 June 1987 I "caLjacity determination No. 6 " ) and an acquisition -

certificate granted to East-Kest to obtain a Boelng 737-300 aircraft

in March 1387, ( "the B737 acqulsition certif irate" i .

Capacity determination No. 6 and the 8737 acquisition

certificata were challenged by Ansett on various grounds including

grounds of natural justice. I reserved my decision in those

proceedings and judgment has not yet been given.

Since February East-West has apparently deferred its plan to

import the Soeing 737-200 jet aircraft which 1 s the subject of the

B737 acquisition certificate. It has acquired, instead, two Fokker

F28 twin jet aircraft which were due to arrive in Australia sometime

during last weekend. Counsel for East-West stated that some six to

eight weeks would elapse after the arrival of the aircraft before they

would be placed in service owing to the necesslty for various tests and ad~ustments for the purpose of ensuring, amongst other things,

compliance with Australian air safety requirements. The Minister has

granted acquisition certificates to East-West pursuant to S . 19 of the

Equipment Act to obtain the two F28 aircraft.

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It is asserted by Ansett that the F28 acquisition

certificates were granted on the basis of capacity determination No. 6

and in lieu of the B737 acqulsition certificate, both of which are

under challenge and awaiting judgment in proceeding G585/86. This

assertion is not denied by any respondents to this latest proceeding.

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Counsel for the Secretary said that the Secretary kad not yet granted

import approval pursuant to Regulation 4hT to East-West and that no

such approval would be granted unt1.l tomorrow at the earliest. In

those circumstances, as there was no lmmment threat that such -

approval would be granted after argument concluded late on Friday

afternoon I said that I would give judgment this morning.

The application for interlocutory injunctlve relief on last

Friday was made urgently and with limited evidence to support it. I

must therefore do the best I can in the circumstances to determine the

matter.

The hearlng before me in February of matters G584/86 and

G585/86 was lengthy and involved evldence and argument in respect of

many issues of varylng degrees of complexity. Although I have not yet

given judgment in those matters plainly they give rise to serious

questions to be tried. As the F28 acquisition certificates were

presumably granted on the basis of capacity determination No. 6 and in

lieu of the B737 acquisition certificates, both of which are impugned

in proceeding G585/86, there is a serious question to be tried in this

proceeding which is, so far as I know, the latest proceeding to have

been Instituted involving the rights of the parties inter se.

Where does the balance of convenience l i e? Ansett clalms

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that the status quo should be maintained pending the final hearing of

h i s latest proceeding. It was submitted that if any interlocutory

lnjunctive rellef is granted the Minister wlll be required, in the

event that Ansett succeeds In the case, to reverse the procedure which

led to the two F28 aircraft entering Australia thereby leading to

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East-West belng required to dlspose of xhat xould then be surplus

l	I	capacity. 73s coicectne=s of this	submlssion :.as challenged by
I	East-West.

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Other consequences were pointed to by Ansett xhich xere said

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l to be potentlally harmful to it. Any damaqes to East-West, it was

I	submitted, would be covered by the usual undertaking to damages which
i	I	counsel for Ansett proffers.

On the other hand, as the Minister has presumably granted

i acquisition certificates enabling East-West to acquire the two F28

aircraft, there is a real question whether any interlocutory order of

the Court suspending the operation of the Minister's decision to grant

the certificates or staymg proceedings under the decision of the

Minister would have any effect as, in the nature of things, there may

be nothing to suspend or stay.

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Counsel for tine Secretary submitted there is no evidence of

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any threat by the Secretary to make any decision relating to the grant

of import approval pursuant to Regulation 4N to East-West, and, even

if there were, there is no evidence that any such decision would be

tainted with error or otherwise susceptible to review under the

Judicial Review Act.

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Another relevant consideration which bears on the balance of

convenience is that the aircraft will apparently not be in service for

I I	six to eight weeks. Within this tlme ~udgment	will probably be	given
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I in proceedings G 5 8 4 / 8 6 and G 5 8 5 / 8 6 . The parties will then know where

they stand on the substantive issues invcjlved in the present case as

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I c e r t i f y c h a t t h l s and this and

t h e > r e c e d i n g f i v s (5) pages a r e

a t r u e zopy of t'ne Reasons f o r

Judgment of the Honourable Mr.

i J u s t i c e Lockhart.

Dated: 13 A p r i l lq57 ,

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Date of Heat-;ng:	ir! Apr i l 1937
Dake of Judgment:	12 A p r ~ l 1387

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