MA 4°° oe CATCHWORDS Judicial Review ~ Air Navigation - application for permission to land and take-off an aircraft from landing ground - wnether aircraft had a maximum take-off weight in excess of 5,700 kilograms - whether decision of delegate refusing application open to review because of failure to take into account special performance characteristics of particular aircraft - Administrative Decisions Judicial Review Act 1977, ss.3, 5 ~ Air Navigation Act 1920, s.3A - Air Naviration Regulations 5, 51, 85, 39, 212 and 227, Devartnent of Aviation Centre Pty, Limited v. The Secretary Transport N.S.W. G 155 of 1981 Ccram: Sheppard J. 23 December, 1981 Sydney IN THE FEDERAL COURT OF AUSTRALIA ) NEW SOUTH WALES DISTRICT REGISTRY No. G 155 of 1981 GENERAL DIVISION ~ BETWEEN AVIATION CENTRE PTY. LIMITED Applicant THE SECRETARY, DEPARTMENT OF TRANSPORT Respondent CORAM: SHEPPARD J. 23 December, 1981 REASONS FOR JUDGMENT This is a matter in which I would have preferred to reserve for a short time to enable me to express a little more felicitously and a little more elaborately than I will, my reasons for the conclusions at which I have arrived. But tne urgency of the matter and the time of the year make it imperative that I give a decision this afternoon. I have reached a very clear conclusion as to what the outcome of the application should be. The application 15s for the review of a decision of the Secretary, Department of Transport, said to have been made on 14 October, 1981. The dec1sion was given in respect of an application made by letter dated 21 July, 1981, and supplemented by a further letter of 3 September, 1981. As I understand the application, it 1s an application made pursuant to Regul- ation 85 of the Regulations made pursuant to the Air Navigation Act, 1920, There was a submission by counsel for tne applicant that the application was made as well, or alternatively, under Regulation 212. I am not in agreement with that submission, It 1s a matter to which I shall refer a little later. ¢lthough the application 1s couched as an application for guaicial review made pursuant to the Administrative Secisions Judicial Review Act, 1977 ("the Judicial Review act"), zt 128 probably also an application for a declaration wnich, if made, would have obviated the need for any grant or refusal of an avoplication pursuant to Regulation 85, If the declaration were to be granted the applicant would ce lawfully entitled to operate the aircraft 1n question into the landing field at Kooralbyn, which has been referred to ana described in the evidence. It 1s convenient to deal with its application for that aeclaration first of all. Before I do so, I should say sometning about the way in which this case has proceeded. Sirections were made directing the applicant and the respondent to file affidavits. Affidavits on behalf of the applicant were filed and an affidavit on behalf of the respondent was filed. It was made by a Mr. Lawry. The matter proceeded by the reading, first of all, of those affidavits. Counsel for the applicant then said thet he wished to cross-examine Mr. Lawry, who 1s the delegate of the Secretary of the Department and who in fact made the decision in question. He cross-examined him and then said he had evidence in reply to lead. I allowed him to lead 1t orally because the affidavit of Mr. Lawry had only been filed a day or so before the hearing commenced. Wnen it was led it emerged fairly soon tnat the evidence was not evidence in reply, but evidence in chief which ought to have been made the subject of affidavits in accordance with tne Court's directions. Nevertheless, I allowed the matter to proceed in this unsatisfactory way. The evidence, called eviaence in reply but in reality evidence in chief, was then replied to by further evidence on the part of the Department. I mention these matters not because in the end I feel that any available evidence was not called, but in case the transcript has to be considered by any other person. It would appear that the evidence has been led in a most unsatisfactory way because of the applicant's view that much of its evidence in chief was evidence in reply. I should say also that to somebody untutored in tne matter 1t might appear that there has been an qttempt to review on its merits the decision which is under appeal. A&A great deal of evidence was led subject =o tne objection of counsel for the respondent. That evidence, because 1t was in in that conditional way, had so ce answered by the Department. On reflection I think "nat much of the evidence should have been rejected, but > felt obliged to allow the evidence because of submissions ™aae oy counsel for the applicant that the Department had acted 1n such a way that no reasonable person could have -eacned the decision which was reached, because it was said that it had taken into account extraneous matters, and secause of other considerations basea on the various grounds wnich appear 1n tne Judicial Review Act, upon which reliance was placed. I return to the question of whether the applicant is entitled to tne declaration wnich it seeks, It is necessary to refer to some provisions of the relevant legislation. The first of these is Regulation 89 of the Regulations, which relevantly provides: "89. (1) An aircraft shall not land at, or take-off from, any place unless - (a) the place is an aeroarome established under this Part; (b) the use of the place as an aerodrome is autnorized: by a licence granted under regulation 84; "(c) the use of the place as an aeroarome 15 authorized by the Director-General under regulation 85 and - (1) the aircraft is of a type of aircraft authorized under that regulation to land and take-off from the place; tt Regulation 85 provides: "85. Subgect to these Regulations, the Director- Generel may, by specific or generai description, authorize the use of any place as an aerodrome for the purposes of the landing and taking-off of such types of aircraft, engaged in such classes of operations and subject to such conditions as the Director-General specifies in the instrument of authorization." The Director-General by an instrument made pursuant to Regulation 85 made a general authorisation. It was made on 10 April, 1975. It is part of exhibit 1 and it 1s described as an "Instrument of Authorisation of Places as Aerodromes", The document is otherwise referred to in the evidence as AGA6, that description stemming from a publication in which 1t appears. Relevantly, the instrument of authorisation, to which I shall refer as AGA6, provides: "1.3 The owner, operator or pilot in command shall, in respect of the lanaing or take-off of an aeroplane or a gyroplane used in any other class of overations than tnose specified in paragrapn 1.1 or having a maximum take-off weight exceeding 5700 kg (12,500 lb) - (a) obtain specific authorisation from the Secretary for the use of an area as an authorised landing area; or (b) ensure that the area complies witn the approved standards specified in the operator's Overations Manual as being applicable to the type of air- craft and class of operations." Nothing in paragraph 1.1 of AGA6 is of relevance in the present proceedings, De I snould say at this point that there has for many ears voeen an erbitrary distinction drawn in the legis- lation aealing with the operation of aircraft between aircraft whose weight exceeds 5,700 kilograms and aircraft «nose weight does not. In the provisions of AGA6 to wnich I have referred the we1rght 5,700 kilograms is equated to 12,500 pounds. In fact, 5,700 kilograms is slightly neavier than 12,500 pounds, but nothing turns on this. Twelve thousand five hundred pounds used to be the figure usec in Australia, and is the figure, and has for some years ceen the figure, used in tne United States of 'merica as well as in other places. There 1s no apparent reason for the selection of 12,500 pounds rather than some otner Yigure. It 1s arbitrary but it exists, and exists ln legislation, Obviously there will be cases, some ceople will say, of nardship because some weights will be gust under or gust over the arbitrary limit which is fixed avparently to distinguish light aircraft from those of a heavier kind. It 1s the respondent's contention that this is an Pircrart the maximum take~orf weight of which exceeds 5,7CO kilograms. It is the applicant's contention that it is not. If the applicant 1s right, the aircraft is by AGA6 authorised to land at the landing field in question at Kooralbyn. If it is not, it needs a specific authorisation for that purpose. The term "maximum take-off weight" is defined in Regulation 5 of the Regulations to mean, in relation to an aircraft, the weight set out in the certificate of airworthiness or the flight manual for the aircraft as the maximum take-off weight. It is agreed by both counsel, and I consider them in this respect to be correct, that that definition applies to the term where used in AGA6, because AGA6 1S an instrument made pursuant to one of the Regulations - namely, Regulation 85. The certificate of airworthiness for the aircraft is in evidence, It does not set out any maximum take-off welght, The flight manual for the aircraft is also in evidence, It 1s the respondent's contention that it does set out the maximum take-off weight. Tnat is also the contention of the applicant, but in ats submission the welght is not so simply and straightforwardly set out as the respondent would have it. A relevant part of the manual is page 2-2. It is headed "Operating Limitations", and there then appear the words: 7. "CERTIFICATION AND OPERATIONAL LIMITATIONS ARE CONDITIONS OF THE TYPE AND AIRWORTHINESS CERTIFICATE AND MUST BE COMPLIED WITH AT ALL TIMES AS REQUIRED BY LAW. (sic) CERTIFICATION STATUS This aeroplane is certified in accordance with FAR 25 and A.N.O. 101.6." = interpolate to say that FAR 25 is a reference to some American regulations concerning airworthiness of aircraft, and 4.N.O. 101.6 is a reference to an Air Navigation Order naving legislative force under the Air Navigation Act, and picking up the provisions of the American regulation. The relevant page of the manual goes on, under the reading "Weight Limitations", to specify certain weights. "mongst others these are maximum design take-off weignt S,032 kilograms, 13,300 pounds; maximum certified take-off weisht 6,032 kilograms, 13,300 pounds; maximum take-off welcnt vermitted by climb requirements - see figure 4-12, In the respondent's submission the maximum take-off weignt referred to 1n AGA6 1s by definition in the Regulations e1tner the maximum design take-off weight or the maximun certified take-off weight - it matters not. In the sub- mission of the applicant it is really the actual weight wnicn the aircraft will have when it takes off on any particular flight. Later provisions of the manual to which one is directed sy, amongst other things, what appears at page 4-12 show that length of runway, the necessity to clear obstacles, ambient temperatures, air pressure, and other factors may limit the weight that the aircraft may have on any particular flight. A great deal of evidence nas been led about this matter; much reference has been made to the pages of the manual in which these provisions are made. Reference has also been made to the American regulation PAR 25 1n relation to it, and tnere is other naterial which I have before me in respect of it as well. Mr. Llewellyn, who is a consultant aeronautical engineer and who was called to give expert evidence on behalf of the applicant, after considering much of this material, formulated some rules wnich appear in exhibit M, which he said were designed to provide for the safe take-off of the aircraft from the landing area in question. Tnese rules are: "1, Take-off weight must not exceed 5700 Kg. under any circumstance, 2. Reduce the weight by 42 Kg. for each degree celsius above 22°C. 3. Reduce the weight by 32 Kg. for each lOOft. by whicn the runway pressure altitude exceeds aero- drome elevation (323 feet). 4, Restore weight by 154 Kg. for each ten knots of actual headwind component along the runway. (N.B, Actual headwind 1s to be taken as half the reported or estimatea headwind). 5. Downwind operations ere pronibitea." 9. In short, wnat the applicant wishes me to do 1s to say shat "maximum take-off weight", where used in AGA6 and in the Regulations, means the maximum take-off weight ter any particular journey, taking into account the various conditions that exist. I was taken a tortuous path tnrough A.N.O. 101.6, FAR 25 and some of the other regulations. For a number of reasons, which I will give as snortly 's i can, I have reached tne clear conclusion that the Cepartment's argument should be accepted. A matter said to militate against accepting 1t is the fact that one does not find on vage 2-2 of the manual the expression "maximum scke-otf weicht", One finds instead the expressions, "naximum design take-off weight" and "maximum certified take-off weignt"; out I would have thougnt, particularly in relation to the latter, when one bears 1n minc what 1s aid earlier on the page about the aeroplane having been a fe) ertifiea, that what 1s really being talked about is the maximum take-off weight. Then the definition uses the expression, "the weight set out .... in the flight manual for, the aircraft as the maximum take-off weight". That language would lead one to think that tne draftsman intended the weight to be a specific weizht plainly designated and thus clearly and 10. readily ascertainable, The tortuous exercise in which the applicant indulged does not lead to a situation in which the weight 1s simply set out. That of itself militates, 1n my opinion, against the acceptance of the applicant's submission. But it is when one considers Regulation 51 of the Regulations, where the expression "maximum take-off weight" is used, ana also considers Regulation 227 thereof that it becomes clear, in my opinion, thet the draftsman intended "maximum take-off weight" to be a fixed weight and not to be variable at all. I do not wish to go to the detail of these provisions, but if the expression had the meaning contendea for by the applicant, regulation 51 would so vary the licences which pilots would have to have es to make the operation of particular aircraft near the boraerline of the weight limitations impossible. Regulation 227, particularly sub-regulations 227(1), (2) and (4) thereof, makes 1t clear, to my mind, that one single and specific weight was intended. It may be, of course, that this manual is defective in not specifying any meximum take-off weight. In other words, by the insertion of the words "design" end "certified", 1t has not indicated, in accordance with AGA6 and the ll. definition in the regulation, a maximum take-off weight; rut 4f that impractical and unreal view were taken, and 2 myself would not take it, it would nean that there is no evicence which would establish that the maximum take-orf wei1ent of this aircraft does not exceed 5,700 kilograms. In other words, 1f that were the appropriate consideration, ani I make 1t clear that I do not think it 1s, the case woulda nevertheless go against the applicant rather than "he respondent. Tnere 18, I think, later 1n the manual a clear indic- -tion that tne weight of 6,032 kilograms was intended to be the maximum take-off weight, which is referred to in sGA6 and tne aefinition. There 1s a section of the manual which 25 tabped VII, "Weight and Balance Data ana Aeroplane Equip- ment List", It deals with, amongst other things, the centre of gravity of the aircraft ana what has to be done in rejation to that matter when the aircraft 1s being loaded. It refers on a page headed, "Instruction Page for Loading system" to, amongst other things, the maximum take-off weight. On the next page is a diagram, towards the end ort wnicn appears the following, "6032 kilograms maximum take-off weight", To my mind those latter provisions put the matter veyond question. 12. For the reasons given, I have no hesitation in rejecting the applicant's submission that the maximum take-off weight of this aircraft is not 6,032 kilograms. There are other considerations which would lead me to the same conclusion, but the time is such that I do not stay to mention them. I turn then to the other aspects of the subject case. I should first of all put out of the way Reguiation 212. That was mentioned because of the form of refusal of the application, which the respondent's letter of 14 October, 1961, took. On p.2 of that letter, which 1s annexure C to an affidavit of Mr. Grant, the following appears: "Sections 2 and 3 of AGA-6 which set out the conditions of authorisation do not apply to aircraft above 5700 Kgs. Paragraph 1.3 specifies the conditions under whicn operations of such air- craft may operate from authorised landing areas. It requires either a specific authorisation or compliance 'with the aporovea standards specified in the Operator's Operations Manual as being apolicable to the type of aircraft and class of operations.' The Air Navigation Regulations do not require or give authority for approval of the Operations Menual and in fact no approval has been given to your Manual. Therefore the tapproved standards' have to be approved through some other medium." It was submitted by counsel for the applicant that the statement that the Air Navigation Regulations do not require 13. or give authority for approval of the operations manual was erroneous in point of law. The submission was based on Regulation 212 which provides for an operations manual. It zs to ve provided for the use and guidance of the qcerztions personnel of the operator. The operator is to furnish copies of the manual to such of his personnel as ne consiaers necessary, to the Director-General and to such Qtner persons associated with the operator's operations as -ne Director-General considers necessary and directs. The wirector-General may give a direction requiring the operator tc include particular information in the operations manual Q r requiring him to revise or vary the information contained a) herein (Sub-Regulation (2A)). There is no provision that I can see which enables anyone to make an application for approval of the manual or any part thereof. Apparently there used to be such a provision, but it was repealed in 1971. It was submitted that the provisions of Sub-Regulation (2A) were such as to contemplate that there would be applications for approval. Additional reliance was placed upon paragreph 1.3(b) of AGA6 which came into force after tne repeal of the regulation in 1971, and which appears to contemplate approval of a manual. 14, However, I am of the clear opinion that the respondent's argument 1n this respect is correct. There is in fact no provision in the regulation for an applic- ation for approval in relation to the manual. The form of the manual is a matter entirely for the operator, subject to such directions as he may rece1ve either under Sub-Reculation (2A) or Sub-regulation (2) from the Director- General,who has a copy of it, but there 1s no vrovision fer any application for approval by an operator. To the extent that paragraph 1.3(b) of AGA6 may suggest otherwise, one should disregard it because 1t 1s an instrument made pursuant to the Regulations of wnich both Regulation 85 ana Regulation 212 form part. I therefore reject the argument that was put to me in relation to Regulation 212, but I would add that its significance escapes me, because 1t is clear that the applicant had the right to make, and did make, an application for approval pursuant to Regulation 85. Thet is how the matter was dealt with by the respondent, and it 1s how the applicant itself approached the matter - at least at some places in tne argument - because its counsel expressly acknowledged to me that the application was an application pursuant to Regulation 85, 15. " 4A number of grounds were relied upon, but the essence of tne applicant's complaint can be summarised by saying cnat tne Department applied to the application general standards which were applied in relation to all types of aircraft which had a maximum take-off weight exceeding 3,700 kilograms. It failed to have regard to the special re) zrcumstances of the case, particularly what were claimed =O ce the outstanding handling and other performance cnaracteristics of the aircraft in question. It was said oy counsel for the applicant that the decision-maker - that .~S to say, Mr. Lawry - naa applied general considerations ind meglected to take into account the particular circum- stances of the case. It was also said that the decision was one - ana I have mentioned this elready - to which no reasonable man could come; and others of the grounds provided for specifically in the vudicial Review Act were also relied uson. Mr. Lawry made an affidavit and was cross-examined. The essential parts of his affidavit show that he considered 2 numper of documents, copies of all of which are annexed to nis affidavit and marked with the letter F, The way the matter is put in Mr. Lawry's evidence, and I refer to varagraph 14 of his affidavit, is: 16, "In making the decision, I had available to me the following documents:" and they are then listed. Paragraph 16 of his affidavit reads as follows: "In making my decision referred to I had regard to the following matters:- The applicant wanted to operate on a closed charter basis an aircraft having a maximum take off weight greater than 5,700 Kgs into an Authorised Landing Area. The general authorisation expressed in Aeronautical Information Publication part aGA-6 is applicable only to aeroplanes with a maximun take off weight not exceeding 5,7CO Kgs being used in private, aerial work (except flying training) and charter operations. Note is made in Aeronautical Information Publication part AGA-6 of the fact that specific authorisation is recuired to be obtained for the use of an area as an authorised landing area by aeroplanes having a maximum taxe off weight exceed- ing 5700 Kgs. Departmental policy in respect of tne use of authorised landing areas reaguires that aero- planes with a maximum take off weight exceeding 570C Kgs should conform as closely as possible to the standard of 4 licensed aerodrome suitable for operation of that individual type of aircraft. The runway width and runway strip width requirements for licensed aerodromes are svecified in Aeronautical Information Publication part RAC/OPS-1-34 for aeroplanes with a maximum take off weight exceeding 5700 Kgs as 30 metres and 90 metres respectively. The runway width orovided at Kooralbyn 1s only 15 metres ana tne runway strip width including two 7.5 metre fly-over areas is only 60 metres. The runway width and runway strip width deficiencies, would not necessarily have disposed of the matter, but departmental policy as referred to above would only permit specific authorisation to be granted if there were other features associated with the operation of the eircraft into Kooralbyn which would lead to equivalent safety. No such compensating factors were present. Indeed, there were difficulties associated with the proposea operation which mitigated against an equivalent safety judgment notably, there were significant anfringements of the transitional surfaces anc obstructions in the approach and teke off areas. I note that the Xooralbyn company had stated that the magnitude of work to develop the aerodrome to a licensed standard was too large and that 1t was their intention to maintain the site to the authorised Landing Area standard only. The operating limitations that 17. "would be imposed on the aircraft's performance at Kooralbyn in high ambient temperatures were considered to be matters of commercial jucgment not affecting the safety of operations, orovided the aircraft was operated at the appropriate weight for the temperature. The acceptance of the performance aspects of the operation was not seen as providing sufficient reason to displace the negative aspects referred .to above. I saw the department's policy as assisting in the maintenance of a uniform approach to applic- ations of this type. However, even in the absence or that policy, I would not have been prepared to grant a svecific authorisation in this matter oecause of the limitations referred to above." -Ltnousn Mr. Lawry was cross-examined I did not form the view enat 21s evidence, at least as to its accuracy and veracity, was under challenge. In any event, I nave no hesitation in -aying that I accept him as a witness of truth, and I accept as Yactual the materiel in paragraphs 14 and 16 of his affidavit to which I have referred. Care snould be taken to note that there 1s a distinction arawn between the way in which the two paragraphs are intro- juced. Paragraph 14 commences with the words: "In making the decision, I had available to me the following documents:" Paragraph 16 begins with the words: "In making my decision referred to I had regard to tne following matters:-" a number of the documents tnat Mr. Lawry had before him were looked at in the course of the submissions, and also in 18. the evidence, It 1s necessary only to refer to one of these. It is a minute of 5 August, 1981, which is folio 18 of annexure F. The minute is not Mr. Lawry's minute nor 1s it addressed to Mr. Lawry. Amongst other things it says: "T agree with NSW Region that on the basis of equivalent safety tne application has consider~ able merit - tne verformance figures quoted by Aviation Centre show that runway and takeoff performance are adequate at tne weights quoted. The problem 18 more a one of standards enc how con- sistent we are in epolying those standards" Taere then follow some further remarks, and the minute concludes: "The airfield should be checked by airports (sic) to confirm that the work stated by Aviation Centre as having been carried out at Kooralbyn has been carried out satisfactorily." There 1s a note at the bottom of the minute made by another officer. It 1s dated 13 August, 1981, and says: "Please draft a reply for my signature rejecting the request". The minute was to the Superintendant, Flying Operations, Queensland, from the Airways Surveyor, General Aviation, Queenslana Region. Counsel for the applicant pressed upon me the view that the application had never really been the subgect of consideration because of the matters which are 19. contained in the minute. But it was not for either of the officers concerned with the minute to make the decision. It certaznly was one of the documents which Mr. Lawry had ivallable to him when he made his decision, but his evidence snows tnat he did not rely upon it. Instead, he relied upon the matters which are specified 1n paragraph 16. I do not wisn to deal with this paragraph in detail. It 2s enough for me to refer to the fact that amongst other <nings ne said that there were difficulties associated with _ne >roposed operation "which mitigated against an equivalent safety guagment notably, there were significant infringements yr the transitional surfaces end obstructions in the aporoacn anc take off areas", Mr, Lawry's judgment in this respect was ogsed upon the application of the Chicago Convention, wnicn kas deen adopted in Australia (Air Navigation Act 1920, s.3A). A copy of the relevant parts are annexed to his affidavit. I aco not go to the detail of his evidence or to tne detail of the provisions of the Convention, but photographs wnich have been tendered show that the airstrip runs at one point between two substantial elevations in the surrounding countryside, so that a cutting-like effect results. These obstructions are only about 60 metres or so from the edge of the strip. There are also hills about 800 metres from 20. either end of the strip. His evidence satisfies me that he believed, and believed on reasonable grounds, that these presented problems for an aircraft, The matter was at large, so far as he was concerned, because the aircraft in question had a maximum take-off weight in excess of 5,700 kilograms. In my view he had amole justification for reaching the conclusion whicn he did. I wish to make it clear that I have not substituted my judgment for his. My only concern is to see whether there was a reasonable basis upon which he could decide as he has. It may be that another experienced person in the field of aviation would disagree with him, but that is not the point, This appeal is not a rehearing of the application. This 1s not provided for by law, in other words, by the Act, which gives me jurisdiction to hear this matter, My powers are very much more restricted, It is true that Mr. Lawry, and he was quite frank about this, assumed the performance characteristics of the aircraft. He made no special study of them, To his mind the important consideration was whether he should approve this area as a landing area for an aircraft which had a maximum take-off weight in excess of 5,7CO kilograms, no matter what its performance characteristics may have been. al. The matter was at large. AGA6, for the reasons given, nad no application to the situation whatever. As the evidence makes clear, all sorts of contingencies and problems can arise very suddenly. Emergencies may not nappen often, but they do happen and they have to be guarded against, no matter now well an aircraft may perform. In those circumstances I do not see how anyone, Looking at the whole of the evidence, and particularly 2t wnat Mr. Lawry has said, could come to the conclusion that he acted at all unreasonably. I do not think he acted unreasonably in simply assuming the performance enaracteristics of the aircraft; varticularly do I take tnat view as there was no specific reliance upon that matter in the application which was made for approval. For the reasons I have given, I have reached the conclusion that this application must fail, out before I conclude there is one matter to whicn I should refer. As { nave mentioned, Mr. Llewellyn is a consulting aeronautical engineer. Ye is employed with the CSIRO. He gave evidence which I regarded as helpful and instructive and ne gave 1t honestly and in good faith. He was concerned, 22, and he made this clear in his evidence, that the aircraft in question had performance and handling characteristics which exceeded those of many of the aircraft lawfully using the strip, lawfully using it because they were of a maximum take-off weight which did not exceed 5,700 kilograms. He said: "T am concerned in this instance that the considerations of equivelert safety which have been made in respect of this application have been confined purely to the physical geometry of the aeroplane, and the airsort and its various prepared surfaces. There are aeroplanes operating from that aerodrome now, carrying passengers. The aerodrome exists; the vassengers exist. They will continue to be carried, I presume. The aeroplenes that are currently operating uncer quite a considerable proportion of the meteorological conditions that obtain in that area will not be capable of climb- ing past the obstacle on the nortn western end of that aerodrome in the event of engine failure on takeoff. It concerns me that this aspect of safety has not been taken anto account, whether it is eligible to be taken into account, I do not know." I asked him some questions: "Your complaint is that this aircraft has a much better performance than most of those aircraft; it is a safer aircraft? --- Yes. And it is a better aircraft to have operating on this strip than those eircraft, 1f you are to operate at tne airport at all? --- Yes, Does that summarise it? --- Yes," Althougn I do not consider that the considerations mentioned by 23. "r. Lawry have relevance for present purposes - thet 1s to say, ror the outcome of this case - they concern me, I airect the Department, whose Secretary is a party to these proceedings, to bring Mr. Llewellyn's evidence to tne attention of the Finister for Transport, I should like an assurance that that will be done, if it nas not "lready been done. If the aerodrome is unsafe for air- craft, even though they be below 5,7CC kilograms in maximum taxe-orf weignt, something ought to be done about it. I express no view as to whether that problem in fact does exist. I nave only Mr. Llewellyn's evidence to go on, nut 1t 1s evidence that impressed me and his views are worthy or substantial consideration. This application is dismissed. I order that the applicant pay the respondent's costs of the application. l certify that this and the 223 preceding pages are a true copy of the reasons for judgment herein of The Honourable 1 . —v—V—mwoo Mr Justice Sheppard. <x . ae Associate Dated 43 Yecembs igs 24,