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Aerolift International Ltd v Mahoe Heli-Lift (SI) Ltd [1996] SBHC 88; HCSI-CC 387 of 1995 (28 May 1996)

IN THE HIGH COURT OF SOLOMON ISLANDS

Civil Case No.387 of 1995

AEROLIFT INTERNATIONAL LIMIITED

-v-

MAHOE HELI-LIFT (SI) LIMITED

AND

MAHOE HELICOPTERS (NZ) LIMITED

High Court of Solomon Islands
(Palmer J)
Civil Case No. 387 of 1995

Hearing: 24 May, 1996
Ruling: 28 May, 1996

J. G. Katahanas for Plaintiff
A. Nori for Defendants
P. Afeau for Attorney General (representing Director of Civil Aviation)

PALMERJ: There are two applications before this Court; one by Notice of Motion filed by the Plaintiff on 21 May 1996, but later amended and filed on 24 May, 1996, and the other application by Summons filed on 20 May 1996 by the Defendants. The issues raised in the Amended Notice of Motion and Summons, are related to each other, and so have been dealt with together.

I will deal firstly with the restraining orders sought in the Summons of the Defendant. Paragraph 1 of that Summons, seeks orders inter alia, for, “the Plaintiff’s helicopter now stationed at Henderson International Airport, model Kamov KA 32C, be restrained by the Court together with its log books and all equipment until trial or further order.”

This application is made pursuant to Order 53 Rule 4 of the High Court (Civil Procedure) Rules, 1964. Rule 4 reads:

“It shall be lawful for the Court upon the application of any party to a cause or matter, and upon such terms as may be just, to make any order for the detention, preservation, or inspection of any property or thing, being the subject of such cause or matter, or as to which any question may arise therein, and for all or any of the purposes aforesaid, to authorise any persons to enter upon or into any land or building in the possession of any party to such cause or matter, and for all or any of the purposes aforesaid to authorise any sample to be taken, or any observation to be made or experiments to be tried, which may be necessary or expedient for the purpose of obtaining full information or evidence.”

It is not exactly clear what restraining orders are sought by the Defendants, but from what can be gathered from the submission of Mr Nori, Counsel for the Defendants, and from the affidavit of Chris Bergman, filed on 21 May, 1996, at paragraphs 6 and 7, it is for the detention of the said helicopter within Solomon Islands.

The crucial issue for the courts consideration, in determining whether such an order should be made or not, is to decide whether the “property or thing” is “the subject of such case or matter, or as to which any question may arise therein......”

Mr Nori, of Counsel for the Defendants, submits that the Defendant’s case revolves mainly around the issues, as to the correct model of the said helicopter, and its airworthiness. The defendants therefore are concerned, that the helicopter be detained within the jurisdiction of this court, so that the above two issues can be properly investigated and determined by the Court.

Is the helicopter of the Plaintiff, the subject matter of the action, or is there any question arising in relation to it?

The Plaintiff submits forcefully that there is no proprietary question in issue. The question of ownership of the helicopter has never been in dispute, and since the lease agreement of the helicopter to the Defendants had been unlawfully rescinded by the Defendants, and accepted by the Plaintiff, the Plaintiff is clearly entitled to take possession of its aircraft. Whilst on one hand, the submission of the Plaintiff is clearly correct, on the other hand, there are relevant issues pertaining to the model and airworthiness of the aircraft which have been raised in the defence and counter-claim of the Defendants. Those relevant issues will have to be addressed, but I am not satisfied that they warrant the intervention of this court by way of detention orders on the said helicopter. The concerns and fears of the Defendants at this stage are all futuristic without any evidential backing for them. Some practical suggestions to cater for those fears and concerns have been suggested by Mr Katahanas in his submissions, and these will be referred to in detail later.

The Plaintiff meanwhile is clearly entitled to take possession of its aircraft with immediate effect, and no one, not even the Director of Civil Aviation, with respect, has the right to prevent the Plaintiff from getting access to its helicopter, and taking possession of it. Any orders therefore, contrary to that right, by the learned Director of Civil Aviation should be rescinded with immediate effect. In default the court will have to consider issuing appropriate orders to that effect.

This brings up the question about the status of the grounding orders of the Director. These are matters which the learned Director and the Plaintiff will have to sort out between themselves.

The affidavit evidence before this Court showed that the Plaintiff had made repeated requests to the learned Director to justify his grounding orders. To date, it appears that no reasons have been given. Short of telling the Director what to do, maybe those orders should now be reviewed; especially when it is clear now that the learned Solicitor-General will act as his Legal Counsel, in the absence of an Attorney General. If what has been repeatedly stated by Mr Katahanas, that no explanations or reasons had been given for the grounding orders, is correct, then it is vital that that matter be sorted out between the Director and the Plaintiff as soon as possible.

On the question of moving the helicopter from its current location at Henderson Airport, to the Henderson Airport, tarmac area, the Director has given reasons why that is not possible. I think that is a matter within the discretion of the Director and at this stage, I see no reason to interfere. Having ruled and made it quite clear, that the Plaintiff has all the rights in the world to possession of its helicopter, the Plaintiff will have to address seriously the question of moving the helicopter, at its own cost, to a safer and more appropriate place. This brings up consequentially, the question of access to the helicopter whilst it is within the area of the Henderson Airport. Access to the helicopter must be given to the Plaintiff at all reasonable times, day or night, but, subject to the requirements or restrictions that may be imposed or are in place, by the Civil Aviation Division. Again this is a matter that can be sorted out administratively with the Director.

On the question of security, as long as the helicopter is within the Henderson Airport Area, then that comes under the normal security arrangement that may have been set up and already in place for the general safety and protection of the buildings, aircrafts and whatever are within that area. If the Plaintiffs are not satisfied with the current normal security arrangements, then it is open to them to take whatever further security measures they consider to be necessary, by arrangement with the learned Director, but at their own cost.

On the question of rescission of the order for the immediate removal of the helicopter from Solomon Islands, in view of the circumstances surrounding this helicopter, it should also be rescinded or withdrawn with immediate effect I accept the submission of learned Counsel for the Plaintiff, that there is no evidence whatsoever before this court to show that the Plaintiff had broken the laws of this country or intend to and therefore will break the laws of this country. Any such fears and concerns raised at this stage are with respect, without foundation.

This brings me next to address the fears and concerns raised by the Defendants that if the helicopter is removed from the jurisdiction of this court, that there is a possibility that the helicopter and the log books will be tampered with. First, there is no evidence whatsoever to support the existence of such fears or concerns. On the other hand, there is some evidence which seems to show that the Defendants intend to, if not already, interfere with the helicopter and its log books. I need not elaborate further (see affidavits of John George Katahanas and Boris Ostivich filed on 22 May, 1996). On that basis alone, the restraining orders sought should be dismissed.

The affidavit of Kenneth Litwing filed on 24 May 1996.

The Defendants have sought to rely on the affidavit of Kenneth Litwing, a helicopter pilot currently engaged by the Defendants, in support of its application for restraining orders. A number of matters have been deposed to in that affidavit but which the Plaintiff takes issue with. First, at paragraph 6(a), (b) and (c), the Plaintiff points out that there is no evidence to show or suggest that the deponent has the necessary qualification as a helicopter engineer to depose to those matters. On one hand, that is technically correct, whilst on the other hand, it seems to me that the matters deposed to appear to be matters of general knowledge which a helicopter pilot trained in such models may be expected to know.

As to paragraphs 8 and 9, I accept that whether that helicopter at Henderson was the same helicopter flown by the deponent at Papua New Guinea is arguable and therefore should be treated with extreme caution.

The statement in paragraph 10 is also arguable and should be treated with the same caution.

Paragraphs 13 and 14 are mere conclusions based on unsubstantiated observations, and therefore very little weight should be attached to them.

Kenneth Litwing’s affidavit adds little to the Defendant’s case other than to raise suspicions at this stage. Its assistance on the question of restraining orders on the helicopter, at this stage can only be described as minimal.

Conclusions on the Questioning of restraining orders

Mr Katahanas has actually addressed the practical approach which I favour, and which in my respectful view addresses adequately the concerns and fears raised by the Defendants. If the Defendants are gravely concerned that the helicopter and its log books and flight manuals will be tampered with if the helicopter is removed from the jurisdiction of this court then what they should have done or seek to do now is carry out an inspection on the helicopter by an expert of their choosing and have a report prepared and filed before the court. Such inspection however will have to be by arrangement and in the presence of the Plaintiff, its servants or agents. Mr Katahanas has suggested that this should be done in say a months time. I am prepared to accept that as a reasonable time. The Plaintiffs on the other hand can also prepare their own reports by their own experts. On top of that, the Plaintiff should give an undertaking, and I note that they are prepared to do so, that they will not alter or tamper with the helicopter in such a manner as to affect the matters in dispute and thereby frustrate the course of justice. I would suggest too that whatever work, repair, maintenance or service is done on the aircraft, should be recorded in detail by the Plaintiff and made available to the Defendants if requested, for inspection.

As regarding the log books and flight manuals, these should be returned forthwith to the Plaintiff. Any requests for inspection of these can be by arrangement with the Plaintiff and in its presence. If the Defendants are concerned about the log books being tampered with then it only seems logical that the defendants make such arrangements as are necessary, to have the relevant pages photocopied and duly certified. Over and above this, the Plaintiff should provide an undertaking not to tamper or interfere with the log books, other than for the normal purposes that they may be used for.

There is some reference to spare parts contained in a container which the Plaintiff claims ownership over. The Defendants however say that some parts belong to them. Those items in dispute should be identified in the list marked exhibit “JK 1” attached to the affidavit of John George Katahanas filed on 22 May, 1996. If need be then a separate interlocutory hearing can be made in respect of them. Otherwise, all other parts, inclusive of tools and equipment in that list should be delivered immediately to the Plaintiff.

Security for Costs

The application for Security of Costs is covered by Order 65 Rule 5 of the High Court (Civil Procedure) Rules, 1964. Rule 5 provides:

“A plaintiff ordinarily resident out of the jurisdiction may be ordered to give security for costs, though he may be temporarily resident within the jurisdiction.”

The discretion of the court is to be exercised after the court has had regard to all the circumstances of the case and if it thinks it just to do so. In the case of Sir Lindsay Parkinson & Co. Ltd -v- Trip/an Ltd (1973) Q B. 609 per judgment of Lord Denning M.R, the circumstances which the court may take into account include: the plaintiff’s bona fides and his prospects of success; whether the defendants have admitted on the pleadings or elsewhere that money is due; whether the application for security is being used oppressively. On the pleadings and evidence before this court I am satisfied about the bona fides of the Plaintiff and his prospects of success. I note in favour of the Plaintiff too that some USD157, 340.00 has already been paid into court. I also note the submissions made by learned Counsel for the Plaintiff that the Plaintiff’s claim will not be very long because most of it has been put down in writing. On the other hand, fighting the counter-claim of the Defendant may take up the major part of the trial. Weighing all these matters together, the application for security for costs should be refused.

On the question of whether security should be put up by the Defendants for its counter-claim, there is a discretion to refuse to order the defendant, though resident out of the jurisdiction to give security for costs, where the counter claim arises out of the same matter and is in fact the defence to the action (see Neck v Taylor, (1893) I Q B. 560). I note that the Plaintiff in this action is not asking for security for costs. On that basis alone it is not necessary to consider further the issue as to security for costs to be given by the defendant. I also note too that it was raised in the event that security should be required from the Plaintiff. That has been denied and therefore it also becomes immaterial.

ORDERS OF THE COURT

1. Deny restraining orders sought in respect of the Plaintiff’s helicopter stationed at Henderson International Airport together with its log books and all equipment.

2. Deny order sought for the Plaintiff to pay security for costs.

3. Grant leave to the Plaintiff:-

(a) to join the Attorney General (representing the Director of Civil Aviation) as Third Defendant in these Proceedings.

(b) to further amend the Writ and Statement of Claim.

4. Order that the Plaintiff file and serve an amended Writ and Statement of Claim on all Defendants in 7 days.

5. Order that the possession of the said helicopter, inclusive of its log books and flight manuals (both in the English and Russian language), and all spare parts tools and equipment, more particularly described in exhibit “JKl” to the affidavit of John George Katahanas filed on 22 May, 1996, and not disputed by the defendants, to be delivered forthwith to the Plaintiff, by delivery to one Boris Ostavich.

6. Order that the Attorney-General representing the Director of Civil Aviation issue the Plaintiff and its servant or agent, Boris Ostavich and such other of the Plaintiff’s servants or agents as may be nominated by the said Boris Ostavich from time to time with access to the said helicopter at all reasonable times of the day or night whilst the helicopter remains within the precincts of the Henderson International Airport.

7. Order that the Defendants be granted:-

a) reasonable access to the said helicopter for purposes of inspection by arrangement with the Plaintiff, such inspection to be carried out within a month from today’s date;

b) reasonable access to the log books and flight manuals for purposes of inspection and photocopying of any relevant documents contained therein by arrangement with the Plaintiff.

8. The Plaintiffs to provide an undertaking that its servants or agents will not interfere with or alter any parts of the helicopter or the log books and flight manuals in anyway so as to frustrate and obstruct the course of justice, apart from the normal repairs, maintenance and servicing of the aircraft; provided that detailed records should be kept of all such work performed on the aircraft and that this should be made available on request from the Defendants for inspection.

9. The costs of this application to be borne in equal shares between the first and second Defendants and the Attorney-General to be taxed.

(A. R. PALMER)
JUDGE