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Aussie Airlines Pty Ltd v Australian Airlines Ltd

Aussie Airlines Pty Ltd v Australian Airlines Ltd

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Case Copied 13 September 1996 35 min read

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CATCHWORDS

AVIATION - airline services - lease of terminal facilities.

CONTRACTS - interpretation - whether applicant is a 'Third Party Carrier' - whether applicant is 'a new entrant to the domestic aviation industry' - application must be made in good faith - applicant must hold or have made bona fide application for all necessary licences - questions concerning applicant's financial viability and its strategy beyond terms of head lease are not relevant questions - meaning of 'Relevant Period' - privity of contract.

REMEDIES - declaration - standing - whether issue abstract or hypothetical - whether a 'real question involved' - whether 'foreseeable consequences for the parties' - whether a proper contradictor.

Air Navigation Act 1920
Civil Aviation Act 1988: s. 3, Part III Division 2

Ainsworth v Criminal Justice Commission (1992) 175 CLR 564
Forster v Jododex Australia Pty Limited (1972) 127 CLR 421
Gardner v Dairy Industry Authority (NSW) [1977] 52 ALJR 180
Gregory v Williams (1817) 3 Mer 582; 36 ER 224
In Re Judiciary and Navigation Acts (1921) 29 CLR 257
Les Affreteurs Reunis SA v Leopold Walford (London) Limited [1919] AC 801
Lloyd's v Harper (1880) 16 ChD 290
Oil Basins Limited v The Commonwealth of Australia (1993) 178 CLR 643
Royal Exchange Assurance v Hope [1928] 1 Ch 179
Russian Commercial and Industrial Bank v British Bank for Foreign Trade Limited [1921] 2 AC 438
Telstra Corporation Limited v. Australian Telecommunications Authority (1995) 133 ALR 417
The Commonwealth of Australia v Sterling Nicholas Duty Free Pty Limited (1972) 126 CLR 297
University of New South Wales v Moorhouse (1975) 133 CLR 1
Wilson v Darling Island Stevedoring and Lighterage Co Limited (1956) 95 CLR 43

AUSSIE AIRLINES PTY LIMITED v AUSTRALIAN AIRLINES LIMITED, QANTAS AIRLINES LIMITED, FEDERAL AIRPORTS CORPORATION

VG 608 of 1995

LOCKHART, SPENDER and COOPER JJ.
13 SEPTEMBER 1996
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA )
  )
VICTORIA DISTRICT REGISTRY       )    No. VG 608 of 1995
  )
GENERAL DIVISION                 )

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:AUSSIE AIRLINES PTY LIMITED
Applicant

AND:AUSTRALIAN AIRLINES LIMITED
First Respondent

QANTAS AIRLINES LIMITED
Second Respondent

FEDERAL AIRPORTS CORPORATION
Third Respondent

BETWEEN:AUSTRALIAN AIRLINES LIMITED
First Cross Claimant

QANTAS AIRLINES LIMITED
Second Cross Claimant

AND:AUSSIE AIRLINES PTY LIMITED
Cross Respondent

COURT:    LOCKHART, SPENDER and COOPER JJ.
DATE:     13 SEPTEMBER 1996
PLACE:    SYDNEY

MINUTE OF ORDER
THE COURT ORDERS THAT:

Leave to appeal from the judgment of Northrop J. given on 25 June 1996 be granted.

The draft notice of appeal, being exhibit 'MMD6' to the affidavit of Mark Monteith Dobbie sworn on 2 July 1996, be deemed to be the notice of appeal.
- 2 -

The appeal be dismissed.

Qantas Airlines Limited pay the costs of Aussie Airlines Pty Limited and of Federal Airports Corporation of the motion for leave to appeal and of the appeal; otherwise there be no order for costs.

NOTE: Settlement and entry of orders is dealt with in Order 36 of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [1996] FCA 813
Decision Date: 13 SEPTEMBER 1996

CaseChat Overview and Summary

The appeal concerns a motion for leave to appeal the decision of Northrop J., which was handed down on 25 June 1996, in the proceedings between Aussie Airlines Pty Ltd and others. The case revolves around the interpretation of certain lease agreements, specifically the head leases executed between the Commonwealth of Australia and the Australian National Airlines Commission, now known as Qantas, for major airport terminals. Aussie Airlines sought a sub-lease of terminal facilities to enter the Australian domestic airline industry, which had been deregulated following the end of the Two Airline Policy. The central questions were whether Aussie Airlines had standing to seek declaratory relief and whether it qualified as a 'new entrant to the domestic aviation industry' within the terms of the head leases.

The Court found that Aussie Airlines had sufficient standing to seek declaratory relief, as the issues were not abstract or hypothetical, and there were clear foreseeable consequences for the parties. The Court also found that Aussie Airlines qualified as a 'new entrant to the domestic aviation industry,' as it was not necessary for the applicant to demonstrate its immediate ability to conduct airline operations but rather its genuine intent and capability to do so with the necessary facilities. The Court further clarified that the definition of 'Relevant Period' in the lease agreements did not preclude Aussie Airlines' request for sub-leases, as it was made within the stipulated timeframe.

In conclusion, the Court granted leave to appeal but dismissed the appeal itself, ordering Qantas Airlines Limited to pay the costs of Aussie Airlines Pty Limited and Federal Airports Corporation for the motion and appeal. The declaration made by Northrop J. regarding Aussie Airlines' status as a new entrant was upheld.

Orders