N2711

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

OS. NO. 564 OF 2004

TASMAN AUSTRALIA AIRLINES PTY LTD
Plaintiff

AND:

ANDREW OGIL,
DIRECTOR OF CIVIL AVIATION AUTHORITY OF PAPUA NEW GUINEA
Defendant

WAIGANI:		KANDAKASI, J.
2004:	13th and 19th October

JUDGMENTS & ORDERS – Declaratory orders – Whether a civil Court can interfere in investigations that criminal in nature – Allegations of improper exercise of statutory powers and substantial damages - Appropriate remedies – No authority and power in a Civil Court to restrain or otherwise interfere with investigation and process that are criminal in nature – Civil Aviation Act ss. 57, 277, 278 and 310. 

CIVIL AVIATION – Alleged breaches of Civil Aviation Act - Unauthorized flight - Landing on decommission aerodrome - Detention of aircraft – Powers of Director of Civil Aviation Authority under the Act – Nature of alleged breach – Alleged breaches and investigations criminal in nature – Aircraft required and detained for investigations and evidence in prosecutions – Director of Civil Aviation Authority has powers to detain and keep the aircraft or object used to commit an alleged breach – No Civil Court can interfere with a criminal process that has begun - Civil Aviation Act s.57, 277, 278 and 310 – Civil Aviation Regulations s. 81 and 86 – Civil Aviations Rules 91.409 and 91.127.

Facts

An aircraft owned by the plaintiff flew into and landed at a decommissioned aerodrome without first applying for and obtaining an approved flight plan and landing from the Respondent. The Respondent charged the plaintiff, its owner who directed the flight and landing and the pilot of the aircraft for breaches of the Civil Aviation Act 2000 (CA Act) and rules and regulations under that. At the same time, he issued a detention notice and detained the aircraft for evidence in the prosecutions and for assistance in further and continuing investigations. The Plaintiff applied to the National Court in a purported exercise of a right of appeal seeking orders amongst others a nullification of the detention notice and for a release of the aircraft and sought that order in the interim pending a determination of its purported appeal.

Held

1.	The question of whether the Respondent properly exercised his powers was a matter yet to be decided by the Court in the substantive proceedings. Meanwhile, for the purposes of the interim application, there appear to be a prima facie case of breaches of the CA Act and rules and regulations giving the Respondent reasonable grounds to detain the aircraft. 

2.	The Respondent has powers under s. 57 (2) (c) of the CA Act to detain and continue to detain the aircraft for evidence and to assist in its further ongoing investigations for other possible breaches of the Act and the rules and regulations thereunder.

3.	The breaches, charges, prosecutions and further investigations under the CA Act and the rules and regulation thereunder were criminal in nature. As such, the Court being a civil court could not readily interfere and or intervene in the process by granting the kind of orders and or relief sought in the absence of a demonstration by the plaintiff that the Respondent has acted without authority and clearly erroneously.

4.	Section 57 (7) and section 310 of the CA Act grants a person such as the plaintiff a right of appeal and not a fresh action against the actions of the Respondent. The pleadings in the present proceedings appear not to be an appeal but a fresh action against the Respondent.

5.	Given the foregoing, the plaintiff did not make out a case for a grant of the orders sought. Therefore, the application was dismissed with costs.

Papua New Guinean Cases Cited:
Peter Kirrin & KK Farmers v. John Paroda ( /08/04) N2.
Simon Ketan v. Lawyers Statutory Committee (28/09/01) N2290.
Rimbink Pato v. Anthony Majin & Ors (30/04/99) SC622.
Sir Julius Chan v. The Ombudsman Commission (15/07/98) N1738.
The Bank of Papua New Guinea & Anor v. Mr Marshall Cooke QC, & 2 Ors (14/05/03) N2369.
Dan Salmon Kakaraya v. The Ombudsman Commission of Papua New Guinea & Anor (24/10/03) N2478.
Sakawar Kasieng v Andrew Baigry, Magistrate of Wewak District Court & Anor (23/06/04) N2562.
Robert Lak v. Daisy [Dessie] Magaru (Presiding Magistrate at Waigani District (Grade V) Committal Court) & The State (20/05/99) N1950.
Jimmy Mostata Maladina v Posa in Poloh (25/06/04) N2568.
Justin Wayne Tkatchenko v. Dessy Magaru (04/05/00) N1956.
Golubana No. 35 Ltd v. Bank of South Pacific, (11/11/02) N2309.
Samson Jubi & 3 Ors v. Susan Edna Fraser & 2 Ors (28/01/04) SC735.

Counsel:
G. Shepherd for the Plaintiff.
E. Anderson for the Defendants

20th October 2004

KANDAKASI, J.:	According to the plaintiff, this is an appeal under s. 310 of the Civil Aviation Act 2000 (CA Act). This is by an originating summons filed on 08th October 2004, which reads omitting the formalities as follows:

"1.	A declaration that the Notice of Detention issued by the Respondent on 6th October 2004 detaining the Applicant/Appellants Cessna Citation jet aircraft VH-WNZ is made without lawful authority and is null and void.
2.	An order reversing the decision of the Respondent to detain the said aircraft.
3.	A mandatory injunction compelling the Respondent to withdraw the notice of detention and issue clearance of the said aircraft to forthwith depart Papua New Guinea.
4.	Damages.
5.	Such or other order or directions as this Honourable Court deems meet.
6.	Costs.
7.	The time for entry of this order be abridged to the time of the settlement by the Registrar which shall take place forthwith."

Pending a hearing and determination of the substantive proceedings, the plaintiff by notice of motion filed on 08th October 2004 seeks a number of interim orders. The main order sought is an order setting aside the detention notice dated 6th October 2004 and a direction for the Respondent to issue a clearance for the aircraft, Cessna Citation II (C550) jet and an order for it to forthwith depart Papua New Guinea. In making that application, the plaintiff says, it is losing millions of Kina each time the aircraft remains detained and there is also the issue of the aircraft’s own safety. The Respondent is opposing that application, saying he issued the detention notice lawfully and is entitled to detain the aircraft as it was used to commit certain breaches of the CA Act and rules and regulations thereunder. He also says the relevant and appropriate investigations have begun with some prosecutions already commenced. He therefore urges the Court not to intervene in the process that has lawfully begun by granting the orders sought by the plaintiff.

Relevant Issues

These arguments raise a number of important legal issues for this Court to determine. However, the main ones are these:

1.	Does the Respondent have any authority to detain the aircraft pending his investigations and prosecutions under the CA Act?

2.	Does this Court being a Civil Court has any power to interfere or intervene in a process that is criminal in nature, which has already commenced?

Relevant Facts

The relevant facts giving cause to this application and the proceedings are not much in dispute. On 30th September 2004, a Peter McGee, a PNG and Australian licensed pilot, with a Mr. Andrew Reid (an Australian), as his co-pilot ("the pilots") flew in a Cessna Citation Jet VH-WNZ, ("the aircraft") and landed it at the Kieta/Aropa airstrip or aerodrome, which is a decommissioned aerodrome. Mr. Reid is a businessman in the construction industry and is the sole director and owner of the plaintiff company, which owns the aircraft. 

The Respondent detained the aircraft under s. 57(2)(c) of the Civil Aviation Act to prevent its operation or use as the Respondent claims it had and has reasonable grounds to believe that the operation or use of the aircraft endangered persons and property and that prompt action was necessary to prevent the danger. He says further that, because the owner and the pilots have operated the aircraft in an unsafe manner with an unapproved flight plan, landing at a decommissioned airstrip, and not reporting it on at least one, and possibly many occasions, he believes that the detention of the aircraft was and is necessary to ensure that it did not happen again.

Prosecutions now having commenced against the pilots and the plaintiff, the Respondent wishes to continue the detention of the aircraft and its contents for the purposes of utilizing it as evidence in the prosecutions under the CA Act and to board and carry out further investigations as to the purpose to which the aircraft may have been applied. 

Mr. Reid claims in his affidavit of 08th October 2004, that the purpose of the visit to PNG has been to ferry two executives of donor aid agencies, to Bougainville where they were investigating the funding of three health clinics for villagers there. He also has a personal interest of possible involvement in the construction or the supply of materials in these projects and as owner of the aircraft to supply transport. The Respondent has not accepted these claims, and it is, along with other relevant authorities in the country, are investigating the purpose of the flight. 

Mr. Reid says in August and early September 2004, he applied to the Respondent for clearance to land his aircraft at Kieta/Aropa airport on Bougainville. He did not receive the clearance he sought. Despite that, on 30th September 2004, after clearing immigration and customs at Port Moresby, he proceeded with his passengers to Buka and then to Kieta/Aropa and landed at the Aropa aerodrome. He seeks to justify his actions by saying because he sought formal clearance from the CAA and based on his prior applications to the Respondent and based on his believe that his operations met the requirements of the Respondent as previously discussed (which the Respondent denies) and with the express consent of the landowners, he believed the landing was lawful. The approval from the landowners was by a Rubin on the authority of a Royal Government of Meekamui. He says he also believed that, there was no issue of safety arising. As a duly licensed pilot, he personally made a full on the ground inspection of the airport on a prior visit to Kieta on 1 September 2004 and he was also aware that a PNG Government and European Union delegation had recently been permitted and used the airport in similar aircraft prior to that. The landing was safely accomplished and entirely without incident.

Clearly therefore, there is no dispute that the flight to and landing at Aropa aerodrome was without the specific approval of the CAA. The only approval, if any, came allegedly from the landowners and a representative of a Royal Government of Meekamui. It is common knowledge that Bougainville is an integral part of Papua New Guinea and there is only one legitimate government, the government of PNG and thereunder the North Solomons Province Government. As such, all matters affecting civil aviation in the country including Bougainville falls within the exclusive jurisdiction of the Civil Aviation Authority under the directorship of the Respondent. It follows therefore that, the purported authority from "The Royal Government of Meekamui" means nothing and is no authority for the flight and landing in question.

The aircraft Cessna C550 is a relatively fast twin-engine fully pressurized jet aircraft which typically takes about 6 – 8 passengers. Usually, high-valued passengers or high-valued freight that is time-dependent use this kind of aircrafts. Therefore, normal freight and passengers would not use such aircrafts. Given that, the investigations into the purpose of the flight and landing are necessary to establish the true purpose of the flight and landing in case of any further breaches.

Prosecution under sections 277 for careless operation of an aircraft and 278 for dangerous activity under the Civil Aviation Act have commenced against the pilots and the plaintiff in relation to the events in question. The charges under section 278 carries a maximum penalty in the form of a fine of up to K200,000 for the plaintiff and a maximum penalty of a fine not exceeding K50,000 and imprisonment for a term not exceeding two years or both for Mr. Reid and Mr. McGee. The charges under Section 277 carry a maximum penalty of K50,000 fine for the plaintiff, and a maximum penalty of a fine not exceeding K10,000 or three months in prison for the pilots. In the event that the unauthorized landing was for the purposes of commercial gain, the Court considering the prosecutions under the CA Act may impose an additional penalty of up to three times the value of the commercial gain.

As at the time of the hearing of the application, investigations into the conducts of the plaintiff and the pilots were continuing and further prosecutions were to commence against them all. According to the Respondent, he had information that the aircraft has flown into Papua New Guinea a number of times, including 1st September 2004, the date when Mr. Reid admits being in Kieta/Aropa. Based on this information, the Respondent says he has reason to believe that, the aircraft may have made more than one landing at Kieta/Aropa without the prior approval of the Civil Aviation Authority. Only the investigations now on foot will confirm whether there was just one unapproved flight and landing or more than that.

The evidence also shows that Mr. McGee is already on probation for previous breaches of the requirements under the CA Act and the rules and regulations thereunder. The previous breaches include serious breaches which Mr. McGee stated arose from ‘commercial pressures’ exerted by senior management, and include failing to report an incident. In the present case, there is clear evidence that Mr. Reid, as the owner of the aircraft, was in a position to apply pressure to the pilot, Mr. McGee, to act in contravention of the relevant Civil Aviation rules, and the statements of the pilots show that, that is indeed what happened. There is no evidence of Mr. McGee reporting the landing at Kieta/Aropa, which is a repeat of his earlier conduct. 

From the evidence before me, it appears clear to me that there is basis for the Respondent to claim that the plaintiff, and the pilots have violated the Civil Aviation Act and the rules and regulations thereunder, by making an unapproved flight and landing at Kieta/Aropa, a decommissioned aerodrome in the North Solomons Province. These conducts appear to be contrary to or in breach of Civil Aviation Rules 91.409, 91.127, sections 81, and 86 of the Civil Aviation Regulations.

Power of Detention

Bearing these facts in mind, I now turn to the first main issue concerning the Respondent’s power to detain the aircraft. Section 57 of the CA Act is on point. That provision reads:

"57.	Power of Director to detain aircraft, seize aeronautical products and impose prohibitions and conditions.

(1)	Where the Director believes on reasonable grounds that the operation or use of an aircraft or aeronautical product or a class of aircraft or aeronautical products may endanger persons or property, the Director may, where authorized by a warrant given by a judicial officer on written application on oath, do all or any of the following:—
(a)	detain the aircraft or any aircraft of that class;
(b)	seize the aeronautical product or any aeronautical products of that class;
(c)	destroy any aeronautical product or any products of that class; and
(d)	prohibit or impose conditions on the operation of the aircraft or aircraft of that class or on the use of any aeronautical product or any aeronautical products of that class.

(2)	Where the Director believes on reasonable grounds that the operation or use of an aircraft or aeronautical product or a class of aircraft or aeronautical product may endanger persons or property and that prompt action is necessary to prevent the danger, the Director may do all or any of the following:—
(a)	prohibit or impose conditions on the operation of the aircraft or all aircraft of that class;
(b)	prohibit or impose conditions on the use of the aeronautical product or aeronautical products of that class;
(c)	detain particular aircraft or seize particular aeronautical products where necessary in order to prevent their operation or use.

(3)	A detention or seizure under Subsection (1) or (2) shall be maintained for only such time as is necessary in the interest of safety, but where aircraft, aeronautical products or parts thereof are required for the purpose of evidence in any prosecution under this Act those aircraft, products or parts thereof may be retained by the Director for such period as the Director considers necessary for that purpose.

(4)	The Director shall, where requested by the owner or the person for the time being in charge of an aircraft detained or an aeronautical product seized under Subsection (1), provide in writing to the owner or that person the reasons for the detention or seizure.

(5)	Prior to destroying an aeronautical product seized under Subsection (1), the Director shall give to the owner, where known, 21 days' notice of his intention to destroy the aeronautical product.

(6)	The Director shall not be liable to pay compensation to a person for an aviation product destroyed under the provisions of this section.

(7)	A person in respect of whom a decision is taken under this section may appeal against that decision to the National Court under Section 310.

(8)	For the purpose of Subsection (2), the Director shall notify any prohibitions or conditions to such person as he considers necessary by such means of communication, whether or not of a permanent nature, as the Director considers appropriate in the circumstances."
(Emphasis supplied)

This provision is very explicit. It grants the Director of Civil Aviation, very wide powers, in my view, to do any of the things provided for under this section. However, in the case of an exercise of the powers under subsection (1) a warrant from a judicial officer on written application under oath is required. This requirement does not apply in the case of the powers exercisable under subsection (2). In either case, that which triggers an exercise of either of these powers is the same:

"Where the Director believes on reasonable grounds that the operation or use of an aircraft or aeronautical product or a class of aircraft or aeronautical products may endanger persons or property."

Subsection (3) empowers the Director to maintain the detention and or seizure for such times as are necessary in the interest of safety. Nevertheless, where that which is detained or seized "is required for the purpose of evidence in any prosecution under this Act," the Director could retain the detained or seized item for such period, as he considers necessary for that purpose. The next subsection (4) obliges the Director to give the reasons for his actions, where the owner of the item detained or seized requires it. Subsections (5) and (6) are not relevant for our purpose but the next subsection (7) is. That provision grants a right of appeal to the National Court (310) to the person affected by a decision of the Director.

The Plaintiff is before this Court in a purported exercise of the right given to it by sections 57 (7) and 310 of the Civil Aviation Act 2000. I have serious doubts as to the correctness of the way in which the plaintiff has set out his claim, which is in the form of an ordinary originating summons seeking a number of declaratory and other consequential orders. Section 310 grants the plaintiff a right of appeal. Whilst I appreciate that, it does not prescribe a particular mode, save only to say that it should be by way of an "application", it does not grant a person aggrieved by a decision of the Director of the Civil Aviation Authority a fresh cause of action. Instead, such a person is granted a right of appeal. It follows therefore that, the pleading should take the form of an appeal, in terms of specifying the decision appealed against and the grounds with sufficient particulars for the appeal in order to enable the Director and the Court to know of the basis for the appeal: Peter Kirrin & KK Farmers v. John Paroda (17/08/04) N2599 at pp 3-5.

There is no evidence of the plaintiff requesting the Respondent to provide his reasons for the action he has taken. In any case, we now have the full reasons for his decision in the form of his affidavit in response to that of the plaintiff. It is clear from his affidavit that the Respondent formed the view that the plaintiff, in association with the pilots have breached a number of requirements under the Act. Of particular mention are the Rules in relation to flight schedule or plans and the landing of the aircraft the subject of these proceedings operating out of a decommissioned aerodrome. This, he says, gave him reasonable ground to believe that the continued use of the aircraft "may endanger persons or property and that prompt action is necessary to prevent the danger." It is also clear that further investigations are continuing with a number of prosecutions for a number of breaches already commenced. He therefore goes on to say that, the continued detention of the aircraft is necessary both for evidence in the prosecutions already commenced and to assist in his further investigations.

Whether the Respondent did in fact have reasonable grounds for his believe and eventual decision to detain the aircraft is yet to be determined in the substantive proceedings. That will come after a full hearing in the usual way subject to the plaintiff, persuading the Court that its pleadings are in order. I cannot make that determination in the context of an interim application to avoid making a determinative finding on the matters in issue between the parties’ save only to state what appears to be the case on a quick consideration of the material before the Court.

Section 57 (2) vests the Respondent with power to issue detention notices and detain aircraft, if he "believes on reasonable grounds that the operation or use of an aircraft or aeronautical product or a class of aircraft or aeronautical product may endanger persons or property and that prompt action is necessary to prevent the danger." The next subsection empowers the Respondent to continue the detention if the item detained is required for evidence for a prosecution of an offence under the CA Act.

In my view, even if there was no such specific legislative authority, it would be necessary for the Respondent to continue to detain and keep under its control items used to commit a breach under the CA Act. For as is the case in ordinary criminal prosecutions, the production and use of exhibits is a critical and necessary part of criminal prosecution. As such, their security accessibility and presence within the jurisdiction of Papua New Guinea is a imperative. This is critical in this case because, on the facts before me it is clear that the pilots therefore the plaintiff’s actions, have shown contempt and disrespect for the laws and authorities of PNG. This is apparent from their deliberately choosing to fly into an aerodrome, in an area well known both locally and internationally that has been the subject of hostilities between the PNG Government and the people of Bougainville, until very recently where peace and normalcy is slowly returning on the island. Given the admitted breach by the plaintiff’s owner and the role he played in the unauthorized and unapproved flight and landing, I am not sure what degree of undertaking and sureties will make them come back with the aircraft for a hearing of the charges against the plaintiff, its owner and the pilots.

From the immediately foregoing discussion, there can be no argument that the prosecutions that have commenced against the plaintiff and the pilots and the continuing investigations against them are criminal in nature. This is so because, the alleged breaches are criminal in nature, which entail penalties and imprisonment if found guilty. Despite that, the plaintiff is seeking a release of the aircraft. In other words, the plaintiff is applying for a release of an exhibit that is necessary and required as critical evidence both in relation to charges already laid and in relation to possibly other charges that might be laid against them once the Respondent’s investigations are completed. This goes into the very essence of the second issue. I therefore, turn to that issue now.

Intervention in Criminal Process

The law on the issue of whether a Civil Court can intervene in a criminal or an administrative process that has commenced but not completed by injunctive or such other orders is clear. In Simon Ketan v. Lawyers Statutory Committee (28/09/01) N2290, I summed up the legal position in the context of applications for leave for judicial review and injunctive orders against criminal or other administrative investigations in these terms:

"In my view, as the Supreme Court said in the Rimbink Pato v. Anthony Majin (supra) case, neither the Police Force nor any other public institution charged with a statutory duty to investigate into alleged professional or other misconducts, should be restrained from carrying out their constitutional or statutory obligations. The reason is simple. Persons concerned with such investigations have the right to defend themselves once a formal charge has been laid. If there is say an allegation of defamation of one’s character, separate proceedings could be issued for defamation. But it is no reason to prevent such lawful authorities from carrying out their lawful investigations. If the courts were to readily come into the sphere of investigations and make orders effectively preventing such authorities from carrying out their investigations, it would interfere in the process of proper investigations and bringing those responsible for any criminal or other misconduct, to the appropriate authorities to be dealt with according to law. In my view, nothing drastic happens at the investigations stage against persons covered by such investigations and none of their rights get suppressed even to the point of being charged and being brought before a court of law. The Constitution provides safeguards for persons charged with criminal offences so as to ensure that they are fairly and properly dealt with according to law. Similarly disciplinary process and procedures are in place to deal with people who are charged with administrative or disciplinary processes. In my view therefore, judicial review is not a remedy available at the investigation stage and is therefore an inappropriate case for grant of leave for judicial review of a decision to investigate into the conduct of a person. "

In the Supreme Court judgment referred to in the above passage, namely Rimbink Pato v. Anthony Majin & Ors (30/04/99) SC622, the Supreme Court dealt with a case in which Mr. Pato obtained an interim junction against the Police Force, effectively preventing them from carrying out criminal investigations against him. The National Court subsequently lifted the injunction. That aggrieved Mr. Pato and he appealed against the lifting of the injunction to the Supreme Court. The Supreme Court at page 5 of its judgment said:

"Nevertheless, the most important consideration of all, in our view is whether a civil court should restrain a criminal investigation by police exercising their Constitutional functions to investigate, charge and prosecute a person suspected to have committed a crime or criminal offence. That to us, is the most fundamental issue here.
…

We hold the view that the balance of convenience did not favour the applicant therefore the granting of the interlocutory injunction should not be sustained and extended. Our view is fortified by two considerations. Firstly, the applicant has protection under the Constitution. His rights, whatsoever they may be, in respect of a criminal prosecution are protected by the Constitution. If he claims such rights are violated, he has recourse pursuant to s.57 of the Constitution. We can not see how he can suppress and prevent, by injunction, a criminal investigation by police, which is a constitutional function.

Secondly, if the applicant claims that his reputation has a lawyer and a politician have been injured and is character defamed by what he asserted to be a conspiracy by the two Engan member of Parliament with three police officers, he has the right to sue and issue proceedings for defamation under the Defamation Act."

On similar considerations, the National Court in Sir Julius Chan v. The Ombudsman Commission (15/07/98) N1738, declined to grant leave for judicial review of investigations by the Ombudsman into possible misconduct in office by leaders involved in the Cairns Conservatory deal.

I adopted and applied these principles in a number of cases. One of these cases is the case of The Bank of Papua New Guinea & Anor v. Mr Marshall Cooke QC, & 2 Ors (14/05/03) N2369. There the plaintiff applied for leave for a judicial review of the proceedings of a Commission of inquiry on the allegations of apprehended bias and a failure to accord them procedural fairness. They then sought to prevent the Commission from proceeding further and or making adverse findings as against them. I declined the application, applying amongst others, the above principles. The other cases include Dan Salmon Kakaraya v. The Ombudsman Commission of Papua New Guinea & Anor (24/10/03) N2478 and my recent judgment in Sakawar Kasieng v Andrew Baigry, Magistrate of Wewak District Court & Anor (23/06/04) N2562.

The last case apart from following the above principles, it also highlighted and applied an exception. The exception was in terms of the relevant authority clearly exceeding or acting without authority. There, I agreed with the observations of the Court in Robert Lak v. Daisy [Dessie] Magaru (Presiding Magistrate at Waigani District (Grade V) Committal Court) & The State (20/05/99) N1950. In that case, the Court said, and I agreed that, were a committal court has clearly exceeded or acted without jurisdiction, it is appropriate for the National Court to intervene. In so doing, I reasoned that:

"This proceeds on the basis that, where the committal court lacks jurisdiction, whatever it does, whether rightly or wrongly is at nullity because it has no power to act in either case. I consider it would be most unfair in terms of costs, and anxiety, to force a person affected by such a decision merely because it is a criminal process.

If the National Court were not ready and unwilling to act in such clear cases, it would lend itself to an abuse of the process by those who might be inclined to using them for reasons other than a proper exercise of the powers vested in the committing authorities. For if they know that their decisions are not open to judicial review, it might give them the courage to abuse it. After all, amongst others, judicial review is about safeguarding abuse, acting in excess of or usurping of powers by a decision maker." 

I note that, following this line of authorities, the Deputy Chief Justice in Jimmy Mostata Maladina v Posa in Poloh (25/06/04) N2568 granted judicial review against a committal that proceeded without granting or according the plaintiff his right to be heard, something I noted as fundamental in the context of the cases mentioned above. Earlier, on a similar ground, Sevua J., in Justin Wayne Tkatchenko v. Dessy Magaru (04/05/00) N1956 granted judicial review whilst expressing his reluctance and reiterated the dangers of readily granting judicial review following a committal.

Present Case

In the present case, I note the substantive proceedings based on which, the interim application is made is not an application for judicial review. Instead, it is a purported appeal under s. 310 of the CA Act, the correctness of that is as already noted, doubtful. Again as already noted in the foregoing, there is clear statutory authority in the Respondent to detain the aircraft and continue to do so as long as he considers it is necessary for the purpose of further and continuing investigations and for evidence in relation to prosecutions already commenced and those that might follow as the investigations may led to. Again as noted, the investigations and prosecutions are criminal in nature. Given that, this Court should be most reluctant to grant the interim orders for the release of the aircraft.

The plaintiff has the burden of establishing its case as one coming within the circumstances in which the Court can interfere in a process that has prima facie lawfully commenced and criminal in nature. The plaintiff has failed to discharge that burden. In any case, in this particular case, this cannot happen at this stage in an interim application such as this, because the interim relief sought is one of the substantive relief sought in the originating summons. That place is at the hearing of the substantive proceedings, at which stage, it must still be seriously noted that, a criminal process has commenced with charges laid, and prosecutions commenced for which purpose, the Respondent is empowered by s.57 (3) of the CA Act to detain the aircraft.

The plaintiff’s concerns of loss of business and other damages is a matter that can be properly considered at the end of the process that has commenced. If the investigations and charges result in no conviction against the plaintiff, that might entitle the plaintiff to a claim for damages. Nevertheless, on the evidence before the Court, which includes an admission that, the plaintiff and the pilots made a flight into and landed at a decommissioned aerodrome in Bougainville without the prior approval of the Respondent. This was prima facie in breach of CA Act and the rules and regulations under it. It follows therefore that, what has happened is a direct consequence of the plaintiff and the pilots’ own actions. In other words, it appears clear to me that, they have voluntarily assumed the risks they now complain of. This coincides with the notion that the law does not allow and cannot allow a person to gain from his criminal conduct. So even without more, it appears doubtful whether the plaintiff and the pilots will succeed in any claim for damages.

In these circumstances, I cannot even be satisfied that the plaintiff has met the requirements for the grant of interim relief, such as the one it is claiming. I canvassed the principles governing grant of interim injunctive relief in Golubana No. 35 Ltd v. Bank of South Pacific, (11/11/02) N2309. There are three basic requirements – the Applicant must demonstrate serious questions to be tried and determined, that the balance of convenience favours the grant of interim injunction in order to preserve the status quo, and damages is not an appropriate remedy. The Deputy Chief Justice sitting as a single judge of the Supreme Court cited this with approval in his recent judgment in Samson Jubi & 3 Ors v. Susan Edna Fraser & 2 Ors (28/01/04) SC735.

For these reasons, I am not persuaded to grant the interim orders sought in the notice of motion filed on 8th October 2004 by the plaintiff. I therefore order a dismissal of it with costs to the Respondent, to be agreed if not taxed.

________________________________________________________________
Lawyers for the Plaintiff:		Young & Williams Lawyers.
Lawyers for the Respondent:		Gadens Lawyers.