Director of Civil Aviation v Air National Corporate Limited

[2011] NZCA 165

IN THE COURT OF APPEAL OF NEW ZEALAND

CA48/2011
[2011] NZCA 165

BETWEEN  THE DIRECTOR OF CIVIL AVIATION
Appellant

AND  AIR NATIONAL CORPORATE LIMITED
Respondent

Court:             Arnold, Ellen France and Harrison JJ

Counsel:         K I Murray and J F Parnell for Appellant
S S Cook and K J Scott for Respondent

Judgment:      21 April 2011 at 2.30 pm

JUDGMENT OF THE COURT

The respondent’s application to recall the judgment in [2011] NZCA 3 is declined.

REASONS OF THE COURT
(Given by Arnold J)

1. The respondent, Air National Corporation Limited (Air National), has applied for a recall of the Court’s judgment in [2011] NZCA 3. The basis of the application is that the Court says in its judgment that Air National accepted that it had failed in certain respects to meet its obligations under s 12 of the Civil Aviation Act 1990 (the Act). Mr Cook for Air National says that neither he nor his junior counsel recall any such concession having been made. Rather, he says, he accepted that, for the purposes of the interim injunction application, the evidence disclosed a basis on which the Director of Civil Aviation (the Director) could conclude that a breach of s 12 had occurred. Mr Cook says that this is important because, in the context of the ongoing litigation and its continuing discussions with Director, Air National does not accept that there was any breach of s 12.

2. We note that we have received no submissions from the Director in relation to Air National’s application.

3. We decline the application to recall.  We do not accept that the judgment is misleading in the manner suggested by Mr Cook.

4. This was an appeal against Clifford J’s decision to issue an interim order pending determination of an application for judicial review.  It was not a final determination on the merits.  The Court’s judgment must be read in that light.  Air National accepted that it had filed inaccurate material with the Director.  In that sense at least it accepted that it had not met the general requirements imposed on participants in the aviation system by s 12 of the Act.  As is made clear in the Court’s judgment, Air National’s case was that any failures on its part were simply matters of administrative error and not sufficiently serious to provide a basis for the Director to exercise his powers of suspension under s 17 of the Act. 

5. The critical point from Air National’s perspective was that its conduct was not sufficiently serious to justify suspension.  That is fully recorded in the judgment.  Air National is entitled to maintain that position in its dealings with the Director.  The question whether or not Air National’s conduct was technically a breach of s 12 is peripheral and we do not regard either party as in any way advantaged or disadvantaged by any concession in the course of the hearing that it was breached.

6. The respondent’s application for recall is accordingly dismissed.  

Solicitors:
Buddle Findlay, Auckland for Respondent