The Drop Zone Skydiving Centre Pty Ltd v Central Coast Aero Club Ltd

[2004] NSWSC 1207

CITATION:	The Drop Zone Skydiving Centre Pty Ltd v Central Coast Aero Club Ltd [2004] NSWSC 1207
HEARING DATE(S):	2 December, 2004
JUDGMENT DATE:	2 December 2004
JURISDICTION:	Equity Division
JUDGMENT OF:	Palmer J
DECISION:	Application for interlocutory injunction refused.
CATCHWORDS:	INTERLOCUTORY INJUNCTION - BALANCE OF CONVENIENCE - PUBLIC SAFETY - Plaintiff sought interlocutory injunction restraining Defendant from withdrawing Plaintiff's right to conduct parachute jumping operations on Defendant's airfield - Defendant alleged breach of safety regulations - serious issues of fact and law to be tried - balance of convenience favoured refusal of injunction in interests of public safety.
PARTIES :	The Drop Zone Skydiving Centre Pty Ltd - Plaintiff Central Coast Aero Club Ltd - Defendant
FILE NUMBER(S):	SC 6482/04
COUNSEL:	G. Van Der Vlag - Plaintiff R. Pearson (Sol) - Defendant
SOLICITORS:	CBD Law - Plaintiff Peter Hudson - Defendant

JUDGMENT – Ex tempore

1    By a Summons filed in Court on 26 November 2004, the Plaintiff seeks a declaration as to the entitlement of the Defendant to suspend operations for conduct of the Plaintiff's parachuting business at the Warnervale Airport and an interlocutory injunction preventing the Defendant from interfering with the conduct of that business until the dispute can be determined. The facts are briefly as follows. 2    The Warnervale Airport is controlled by the Defendant. By a document dated 26 October 2001 entitled, "Consent from the CCAC" , which is the Defendant, "for parachute operations at Warnervale Aerodrome and parachuting chief instructors agreement" it was provided, inter alia, as follows:

" CONSENT

Consent to parachute operations is granted by the CCAC for a period of four years & nine months to 30 June 2006, and is subject to strict compliance with all of the conditions detailed within this consent. This consent will lapse if not taken up and signed within 30 days of the date of issue. This consent will be withdrawn if in the opinion of the CCAC there has been a breach of any of the conditions of consent. The CCAC reserves the right from time to time, to add to or vary these conditions of consent. The CCAC will discuss any proposed changes to the conditions of consent with TDZ & Glenn Hogan.

This consent does not confer any right of exclusivity of operations, except as specifically noted, on the Parachute Operator, however it is noted that the intent of the parties is to allow TDZ to have ‘first right of refusal’ in the event that the CCAC considers any expansion or major change to parachuting operations.

This consent is not transferable. This consent cannot be assigned.

CCAC WARRANTIES
Subject to the provisions of this agreement, the CCAC makes no representations nor gives any warranty to TDZ as to the suitability of the Airfield as to its use by TDZ for the purposes of this agreement. Further the CCAC gives no assurances as to the continued availability of any area of the airfield for use as a drop zone target area.”
3    The Defendant has purported to suspend the entitlement of the Plaintiff to conduct any further parachuting operations because, it says, it is of the opinion that there has been a breach of certain of the conditions of consent. The condition of consent relied upon by the Defendant is contained in paragraph 11 of the document. In short, that paragraph requires the Plaintiff to ensure that all Australian Parachute Federation Rules, Civil Aviation orders, regulations and other regulatory requirements are complied with. The clause contains the following express provision:
“In particular, parachutists shall ensure they comply with APF operational regulation 5.2.4 as amended at all times.”

APF operational regulation 5.2.4 states:
“All descents shall be made in meteorological conditions such that the target is clearly visible and the parachutist does not enter cloud."
4    The Defendant says that it has withdrawn consent to the Plaintiff's parachute operations because the Plaintiff has breached that condition of consent. The Defendant says that on two occasions, 19 August and 29 August 2004, the Plaintiff conducted parachuting operations during which parachutists descended through cloud in breach of the requirements of APF operational regulation 5.2.4. 5    The Plaintiff strenuously denies that allegation. It has adduced evidence from a person who was assisting parachuting operations on 29 August, both by way of affidavit and in the form of a video which is said to depict conditions on that day. The video is said to show clearly that there was no cloud through which the parachutists jumped on 29 August. The Plaintiff also strenuously denies that there was any cloud at the time that parachutists jumped on 19 August. 6    The Defendant has adduced evidence from two witnesses of the events in question on the two days. Both can fairly be described as highly experienced in parachute jumping. They say that they directly observed on each of the days in question parachutists descending through cloud from the jumps conducted by the Plaintiff. 7    There is a direct conflict of evidence as to factual issues. It is, of course, completely inappropriate in an application for an interlocutory injunction to determine finally questions of disputed fact. It is clear that the very clearly demarcated issues of fact in the present case will ultimately have to be determined essentially upon the Court’s assessment of credit, accuracy of observation and clarity of recollection. 8    There is a serious question to be tried as to whether the factual basis for the Defendant's action is well founded. There is also a serious question to be tried, in my view, as to whether the document upon which the Plaintiff relies as the basis for seeking an injunction is truly an enforceable contract, at least in the respects in which the Plaintiff seeks to enforce it. These considerations amount to a conclusion that there are serious questions to be tried in the proceedings. I turn now to the balance of convenience. 9    On the one hand, the Plaintiff says that the suspension of its right to conduct its business at the Warnervale Airport is crippling its business. On the other hand, the Defendant says that there are serious issues of public safety involved. It says that if the Plaintiff is permitted to conduct operations, when at least on two occasions it has demonstrated a disregard of essential safety requirements, then the lives and safety of members of the public may be put at risk. The Defendant says that it should not be exposed to any liability for permitting such a situation to continue. 10    While I appreciate the adverse and severe consequences which the Plaintiff may well suffer if its operations are suspended for such time as this dispute takes to be resolved, nevertheless, in my opinion, the balance of convenience favours the refusal of the injunction sought for reasons of public safety. The matter clearly, however, ought to be expedited and, if the parties request it, I will place it in the Expedition List. 11    In my view, accordingly, the application for an interlocutory injunction should be refused. 12    I will stand the matter into the Expedition List for tomorrow, that is, Friday 3 December. 13    The costs of the application should be reserved.
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Last Modified: 12/17/2004