hee ee eee we le nee ee Ye ntane behe ty vet tera e me ee COTE LE RY I OS ee ne ee ee wo eee ee ee CATCHWORDS Judicial Review - Administrative Decisions (Judicial Review) Act 1977 - approval of discount air fare requested — contents of request - power of Committee to impose conditions - Independent Air Fares Committee Act 198]. Administrative Decisions (Judicial Review' Act 1977 ss.5, 17. Independent Air Fares Committee Act 1981 ss.3,12,16,17,26. EAST-WEST AIRLINES (OPERATTONS) LTD. v. KENNDTH TF. WRAITH, DR. D.W. ZINK and HON. K.M. CAIRNS in their capacity as members of the INDEPENDENT ATR PARES COMMTITTEF. VG No. 54 of 1983 Smithers J. 23 May 1983 Melbourne. ' ae ee - ee tre Dna em ne te re at a en Rl OE ee tee Oe ne et ee ne ee ee et ee ee ee ne he IN THE FRDERAL COURT OF AUSTPALIA ) ) VICTORIA DISTRICT REGISTRY ) VG No. 54 of 1983 ) ) GENERAL DIVISTON Between: FAS? WFST ATRLINES (Applicant) And: KENNETH F. WRAITH, DR. D.W. ZTNK and HON. K.mM. CATPNS in their capacity as members of the TNPRPENDENT AIR PFARFS COMMITTER (Respondents) Judge Making Order: Smithers J. Date of Order: 23 March 1983 Where Made: Me] bourne ORDER THE COURT ORDERS THAT: 1. The application be dismissed. . 2. The applicant pay the respondents' costs of the application. 2 EA Nal tae aha ee enna are ear RE at 48 Pete ee ar tome sate ams Pee Unk bite hed eee ei thee Ce ee Nl eine pa ee Ne lee IN THE FEDFRAL COUPT OF AUSTRALTA \ ) VICTORTA DISTRICT REGISTRY ) ) ) GENERAL DIVISION Between: [5a Coram: Smithers J. 23 May 1983 Melbourne REASONS FOR JUDGMENT VG Noa. 54 of 1983 EAST WHST ATRLINES TOPERATTIONS) TD. (Applicant) KENNETH F. WRAITH, DR. D.W. ATNK and HON. K.™. CATRNS in their capacity as members of the INDEPENDENT ATR FARES COMMITTEE (Respondents) This 18 an application to review a decision of the respondents made ® March 1°83 pursuant to s.17{4\ of the . Independent Air Fares Committee Act 1981 (the Act), the decision being that approval be granted by the respondents (the Committee) to the applicant to charge a discount air fare of $120 on the round trip originating in Sydney or Melbourne on the route Melbourne/Albury/Sydney during the period ® March 1983 to 30 Avril 1983. eet Nee nt nthe nA sal ee Ne a eee et Rad reeds A A anteater ame nana eet met Rhea nae Cotie aRD ree a ene e oa - ae way The applicant is aggrieved by the imposition of the time limitation. It seeks a declaration that the limitation 1s void and of no effect, and that the applicant is entitled to continue to charge the said discount air fare for the relevant service until the approval is revoked pursuant to s.17(6) of the Act. It seeks this relief under ss.5 and 16 of the Administrative Decisions (Judicial Review) Act 1977. The applicant has for some time operated an air service between Sydney and Albury and between Albury and Melbourne. A passenger who wished to travel from Sydney to Melbourne would pay the fare determined by the respondents in respect of the services from Sydney to Albury and from Albury to Melbourne, the total fare heing substantially in excess of $120.00. In February 1983, the applicant, 4esiring to introduce a service from Sydney to Melbourne at a fare which would represent a discount on the fare otherwise payable by passengers travelling that journey, sent a telex to the respondents dated 23 February 1983 commencing with the words, "Application in Accordance of Section 17 of the IAFC Act for . Approval of a Discount Air Fare". Tnter alia the telex contained information to the effect that the route was Melbourne/Sydney/Melbourne, by Fokrer F?7 aircraft, that the fare was $120 for a round trip, renresenting 43.35% of currently approved oconomy fare. The telex advised that the proposed discount fare would he applied to services conducted te ee ee ee ee KER ee em Bae reer He ee a a a ee ne en Te ne et nen te ee wm need ti» 3. hy the applicant over the route Melbourne/Albury/Sydney. Tt asserted that the justification for approval of the discount air fare was that it would constitute incremental revenuc to augment the low load factors currently being achieved on route. It asserted that the incremental revenue would ensure the maintenance of the perceived minimal level] of air service desired over the route by improving viability and that the approval of the discount air fare could have no effect on the level of approved economy air fares charqed by Ansett and the Australian National Airlines Commission in respect of their non-stop turbo jet aircraft on the route. It indicated that the discount airfare would be sold only in respect of round trips originating from Sydney or Melbourne and that it desired to introduce the approved discount fare as from March 1, 1983. On 25 February 1983 the -Committee advised the applicant that it had given preliminary consideration to the request and that to fulfil its responsibilities under the IAFC Act it required certain additiona) information. Thirteen items of information were required, including the load factor for the past six months on the Melbourne/Albury, Sydney /Albury routes the number of passengers and passenaer type who have travelled on a round trip originating in Melhourne or Sydney in the past six months, the applicant's estimate of the number of passengers who would avail themselves of the roposed discount, the applicant's anticipation of the Pp Pp Pp ee ee ee me ene wen Seen eT Tee iy wheter Semmens Mel el See tit et cney tne ah ae heal ae nee aw dnt Sete eae bee erm f> 4. dilution rate from passengers who currently utilize the return route on its services, the applicant's anticipation of the dilution rate from passengers who currently utilize the one-way 'journey either Melbourne to Sydney or Sydney to MeJbourne by fare type on the applicant's services, whether additional services would be provided because of the Aiscount rate, whether any seating restriction would apply, what the applicant" anticipated his competitor's response would he if the discount were approved, and the applicant's anticipation of its cost/revenue result from the discount to be 3f its competitors were to match the fare. Jtems 11 and 12 were in the following form:- "(11) For what period of time do you anticipate the discount will be effective? (12) What do you anticipate will be the net revenue gained from the proposed discount? Please provide full details." On 25 February 1983 the applicant replieA to these enquiries. In answer to item 11 the applicant stated: "(12) Trial period to 39 April 19°93 with option to extend on same or variable basis subject to necotiation of TAFC" in respect of item 12 the applicant stated: "(12) 600 RT fares monthly crosses DLRS 144,000 Mar/Apr less commissions and advertising Jeaves DLRS 98,0900 net qain, less inflight costs and PSGR overheads leaves net DLRS 83,000 qain." The applicant also stated that it believed competitors would not be ahle to match the fare untess they adopted the same conditions as East/West includina a change of aircraft or es ee we ee ee ee er a2 wa ° crew and flight number at Albury. It advised that the applicant was aiming to reach price sensitive travellers who cither use? other means of transport or who could not afford the jet fares on the Anirect route. On 1 March 1983 the Committee requested further information, namelv, (2) what specific fliaghts formed the hasis of the applicant's estimate; and (2) if addational flights were necessary. On 1] March 1983 the applicant advised that its estimates were based on March 5 1983 schedules and that it anticipated capacity heing added to an agqgqreaate of three round trip services daily with up to four round trips daily as traffic developed. On ? March 1983 the applicant, in answer to a telephone inauiry from the Committee supplied information as to the proposed frequencies. On 8 March 1983 the Committee informed the applicant, as follows:- "TY refer to your telexes of ?3, 25 February, 1] and 2 March 19°3 requestino approval with supporting details of proposed discount fare of $120 on the round trip originating in Sydney or Melbourne over the Route Melbourne-Albury - Sydney on F?7 aircraft. I wish to advise that followindq consideration of the information provided, the Committee has approved, under s.17(4\) of the TAFC Act, the above discount fare on the following conditions:" The conditions included the following: (1) ~ a discount fare of $120.00 for return ~ travel Melbourne/Sydney (or vice versa) available within the period & March to 39 rare Re ee ne oh Pe ee ek ee Sa ek oe eee Ira Re nae eer eee Oe He ene Neel pelt Mine ee ee onto To nef ete ee 6. April 1983 inclusive. Additional conditions were that the service would he provided on F27 aircraft only on the route Melbourne/Albury/Sydney, that the fare would be available on a return hasis only, each return journey to be completed by 30 Avril 1983, that it was available on 15 return flights a week Sydney/Albury and eleven return fJights per week Melbourne/Albury, that no other discounts were applicable, that FWA ensured that the conditions were clearly outlined in advertising and at the time of reservation or sale of tickets. Jt was also a stated condition that the applicant provide fortnightly details of its results of the discount fares including estimates of the source of discount passengers carried. The Committee also advised that in reaching its decision it noted its responsibility under the Act to be satisfied that the introduction of a proposed discount fare was unlikely to result in economy air fares in respect of air services provided by any trunk route operator over trunk routes being increased. It was submitted by Mr. Liddell for the applicant that the effect of the communications set out above was that the Committee had approved the introduction by the applicant of the discount air fare at the amount proposed, accordingly the applicant might lawfully charge that rate unti31 the approval was revoked pursuant to s.17(6) of the Act. He pointed out that the Committee had purported to make its te tw oe ae ate Nae ae Keres tem do trite! tee bane Rk Mtertectnt se Reeth a Menten mm che Nee ee ee ee ee ee ee 7. approval conditional in the sense that 1t was to expire on 39 April. He contended that the attempt to impose that condition was invalid and ineffective, and that the approval should remain in force until revoked. It was a question, he said, as to whether the condition was "severable" from the approval. He contended that revocation of an approval] was to be achieved through processes descrihed in s.}7/5) and (4) of the Act. No such revocation has as yet occurred. Al] this depends upon the proper construction of s.17 of the Act. That section must of course he construed in the context in which it stands, namely the other provisiors of the Act. The Act is called, "An Act to establish a Committee to review the basis on which certain domestic passenger fares are determined and to determine those domestic passenaer air fares". In Part II of the Act the Committee is established. In Part III its functions are stated. Section 12(1) provides that the functions of the Committee are, (a) to conduct, in accordance with this Act cost allocation reviews ... (bd) to conduct, ... major air fare reviews and minor air fare reviews; (ec) after completion of each major air fares review or minor air fares review to determine the amount of the economy air fares that are the subject of the review ... (d) to approve, in accordance with this Act, proposed discount air fares ..." It is the effect of s.35f1) that upon request by a passenger operator a major air fare review is undertaken hy the Committee and the economy fares that may be charged or proposed to be charged in respect of specified air services wee ed eet are TO Ned ee ee Ne ee ee oo ° R. are determined by the Committee. Section 16 provides that a minor air fares review is conducted upon a request hy a passenger operator who seeks a review in respect of a proposed increase of not more than 5 per centum in an economy air not may the route. fare. In the ahsence of such a request the Committee mav conduct a minor air fares review. Pursuant to s.17(1) of the Acta passenger operator request the Committee to approve a discount air fare that operator proposes to charge in respect of travel over any Section 37 is in the following terms:- "Approval of discount fares 17. (2) A passenger onerator may, in accordance with sub-section (2), request the Committee to approve a discount air fare that the passenger overator proposes to charge in respect of travel over any route. (2) A request under sub-section (1) in relation to a proposed discount air fare in respect of travel over a route shall he made hy notice in writing given to the Chairman setting out - (a) whichever of the following amounts is applicable: (i) in a case to which sub-paragraph (ii) does not apply - the amount (expressed as percentage of the economy air fares charged by the passenger operator over that route') of the proposed discount fare; or (ii) in the case of a request by a passenqer the Commission, in respect of travel over trunk route over which both Ansett and the the amount (expressed as a percentaqe of the operator, other than Ansett or - Commission provide air services - ee eh ee et nee teh ee te lee on, a ed ete Or Ln a Lente a ret ante taht 9. economy air fares that are, for the proposed discount air fare; and (b) the conditions (if any) under which the proposed discount air fare is to be available. (3) Where a passenger operator requests the Committee to approve a discount air fare, the Committee shall, before the expiration of 7 days after the Committee obtains such information as it considers necessary to be obtained from the passenaer operator who made the request or from any other passenger operator in order to give its decision on the request. (4) If the Committee is satisfied that - (a) the introduction of that proposed discount air fare is likely to improve the profitability of the operations of that passenger operator in relation to the provision of air services; (b) the introduction of that proposed discount air fare is unlikely to result in economy air fares in respect of air services provided by any trunk route operator over trunk routes being increased; and (c) the conditions (if any) under which that proposed discount air fare is to he available are reasonarh}e and will he applied without discrimination between persons or classes of pesons who can comply with the conditions, the Committee shall approve the vroposed discount air fare but, if the Committee "is not so satisfied, the Committee shall not approve the proposed discount air fare. (5) Where ~ (a) the Committee has approved, in relation to a passenger operator, a Ciscount air fare in accordance with this section; and {b) any passenger operator qives notice in writing to the Chairman requesting the Committee to conduct a review of the the purposes of sub-section 26/1', approved air fares in relation to Ansett and the Commission in relation to that route' wa oe RS nee Pete asada pe Cea hee Mme ee ae ee ee ee 10. availability of that discount air fare or the Committee is satisfied that it is desirable to conduct a review of the availability of that discount air fare, the Committee shall conduct a review of the availability of that discount air fare and shall complete the review before the expiration of 14 days after the Committee obtains such information as it considers necessary to be ohtained in order to complete the review. (a) (b) (6) Where - the Committee conducts a review of the availability of a discount air fare that was, in relation to a passenger operator, approved by the Committee in accordance with this section; and the Committee - (i) is satisfied that, if the Committee revoked the approval] of that discount air fare, the profitability of the operations of that passenger operator in relation to the provision of air services would not he adversely affected; (ii) ais not satisfied that the continued avatlability of that discount air fare is unlikely to result in any economy air fares in respect of air services provided by a trunk route operator over trunk routes being increased; or fiii) is not satisfied that the conditions (if any) under which that discount air fare is available are reasonable or are heing applied without Aiscrimination, the Committee shall, by notice in writing given by the Chairman to that passenqer operator, revoke the approval of that discount air fare and, where such a notice is given, the Committee shall be deoamed not to have approved that discount air fare. (7) In conducting a review of a discount air fare in accordance with this section, the Committee sha}l have reqarad to the fact that a discount air fare approved by the Committee in relation to a passenger operator in respect of travel over a route may he charqed, in accorvrance wetter we er ee Be Feet Le ete ere Dane beaks te eel ot ee nee 11. with this Act, by any other passenger operator ijn respect of travel over that route." Section 26 provides a Ministerial sanction in the nature of an exclusion from the use of certain airfields where an operator charges, demands, collects or receives economy air fares that are not approved air fares or who advertises that he will charge such fares or charges, demands, collects or receives a discount air fare in respect of a route that is not an approved discount air fare for that route or advertises that he will charae a discount air fare that is not approved. It is important to note that unless the Committee 1s satisfied of the matters specified in s.17(4\ the Committee shall not approve "the proposed discount air fare". On the other hand, if it is so satisfied there is a duty on the Committee to approve "the proposed 'discount air fare". To ascertain the proposed discount air fare one turns to s.3 and s.17(1) where it appears that it is a discount air fare that the passenger operator proposes to charge in respect of travel over any route. An operator may wish to introduce a discount air fare for an indefinite period or. for a specified period or periods commencing at once or on a future date or dates. The period chosen is, I think, inevitably an element of "the discount air fare that the passenger operator proposes to charge in respect of travel over" the relevant route. An application for approval which did not disclose Petree te " es a ee ee ee ee ee et te ee ee 12. the period during which it was proposed hy the operator to charge the discount fare would not, T think, satisfy the requirements of s.17(1). Tf the operator proposes to charade the discount fare only with respect to travel in = school holidays or some period relating to some event temporarily affecting demand for travel, and fails to disclose the period or occasion with respect to which it is intended to charde the discount fare then, an application would relate to an indefinite period and would not truly reflect the actual proposal and would mislead the Committee. It is suggested that a limitation of the period for which it is proposed to charge the discount air fare is a matter to be set out in the request as a matter falling within the scope of the expression "conditions (1f any) under which the discount air fare is to he available". See s.17(2)(b) of the Act. It is pointed out that nowhere in the statutory provisions is there any express reference to such periods or occasions. However it is my view, that the conditions referred to in s.37(2)b) are the conditions upon which the proposed discount air fare, 1f approved, and while in force, is to be available to passengers. Conditions such as the type of aircraft to which the discount fare was applicable, or the ages of persons to whom the discount fare would be available would be conditions within the scope of $.17/2)(b). It is BA ee NE Serr nel me et ae Ne te 3. not to be doubted that approval of a discount air fare to he charged during a limited period is within the competence of the Committee. The definition of the relevant period is not a condition of the continuance of the approval as an operative approval. Jt is not in the nature, for instance, of a condition subsequent which brings legal] relations to an end on the happening of some event. The so called condition is but a constituent element of what is approved. At the end of the period the approval comes to an end not because of the happening of some event but because of its nature. The critical element in the current problem is the identification of the proposed discount fare. In relation to the subject matter there are, ina sense, two kinds of what may be called conditions which call for consideration. First there are those conditions under which, when approval is given, and while it persists, a air fare will be available to passengers. The other is the so called condition upon which the Committee might be prepared to approve a proposed discount air fare. Under the latter there would obviously be a question of the period for which the approval was to be granted. This latter kind of "condition" is not one to be applied hy the Committee by way of qualification or daimitation of what is requested hy the operator. It is what is requested which must, under s.17(4) be approved or not approved and it is not for the Committee itself to alter it. If a request is made for a fare to he ee re re ee ee TNA ee teat ete = he oh eke cee os 14. approved, 'for example, for an unlimited period, and the Committee is unwilling to grant approval for that period, but is willing to grant it in respect of a limited period, the Committee may invite the operator to submit an amended proposal. If it does so, the amended proposal may he approved. If not, and the Committee remains of the same mind, the request will be refused. The problem of limitina or not Limiting the period of operation-of an approval is not really one of applying conditions. It is one of desiqnating what. is proposed. The words "if any" in s.17(2)(b) would be incongruous if the periods or occasions during or on which it was proposed to charge the discount fare were regarded as conditions under §.17(2)(b), because every proposal to charade a discount air fare must, of its very nature, relate to a period or periods or occasion or occasions. The period may be of indefinite or definite duration but it must exist. When the applicant defines the period it proposes to charge an approved discount fare it is not, in ordinary languaqe stating sa condition subject to which an approved discount fare is available. The question is what it was that "constituted the proposal of which the applicant could say and did say, "TI propose to charge this air fare in respect of air travel over my route". That fare must be identified by reference to the communications between the parties. The critical documents are the applicant's telex of 23 February 1983, the ete tne imin Menke el ee oe eee wet ee ake 15. Committee's telex of 25 February 1983 and the Committee's telex of 8 March 1983. The critical question is whether, the applicant was seekinq approval of a proposal to charge the specified discount fare during the period endinq 39 April 1983 or a proposal to charge the discount fare indefinitely. The telex of 23 February 1983 contained, a request for the approval of a discount air fare which, unless modified or explained, called for a decision of approval or non-approval. The Committee sought further information which it considered necessary in order to give its decision. On 25 February 1983, it asked, "l]1. For what period of time do you anticipate the discount will be effective?" There jis an ambiguity Jurking in these words. They may mean "for how long do you anticipate that the discount will attract passengers who would not otherwise travel?". Tt may mean "for how long do you propose to charge the proposed discount fares?". Whichever it meant, the applicant replied "lj. Trial period to 30 April, 1983 with option to extend on same or variable basis subject to negotiation with IAFC." It is not suggested that in construing either the question or the answer, help is to be found in any other particular questions or answers. Looking at the words however it is my conclusion that on 25 February the applicant was intimating to the Committee that it proposed to charge the discount fare for a trial period .ending 39 Aprii and if satisfied with the results, thereafter indefinitely, and if not satisfied, to ry ee Be eee ee terion o oe ee ee ot 16. negotiate with the Committee for approval of a discount air fare on some new and as yet unstated basis. This answer must, J think, be reqarded as incorporated in the request. Accordingly the request has to be construed as a request, in accordance with s.17, for the approval of a discount air fare that the applicant proposed to charae during the period ending 30 April 1983 but in respect of which it did not, at the date of the request, otherwise propose to charge. Whether it ever would propose to charge the fare in contemplation after 39 April 1983 was quite uncertain. So far as there is reference to a future application for a variation on the proposal such reference may, I think, be iqnored. It relates to mere future possibilities. It is to be noted that 1f a proposed discount rate is approved either for a specified period or indefinitely the operator is not obliged by law to continue to charge that fare. That would seem to follow from the provisions of s.26(6) which lay the foundation for the imposition of a sanction upon an operator who charges an un-approved discount fare. There is no sanction provided for charging an approved economy fare instead of an approved discount fare. Notwithstanding this I think that ain construina the communications between the parties this feature is not of importance. It is not to be thought that the applicant and the Committee were speaking of an approval to he given otherwise than as an approval to be implemented. Neither ee tee 17. party would express its attitude on any other basis. It would he most inconvenient that an approval should continue in force when it was ignored. Also the criteria specified in s.17(4) could not satisfactorily be considered on any such basis. Almost inevitably negotiations for approval must proceed on the basis that an approval sought is sought to be implemented. The applicant's proposal contains two elements. The applicant states, in an absolute sense, that, it proposes to charge the discount fare during the period ending 30 April 1983. It also states that it proposes to charge the discount fare thereafter if the trial period turns out satisfactorily to it. It is my view that s.17 is not concerned with proposals which are only conditional. The Committee is not required to give a decision under s.17(4) in relation to a discount fare which the applicant proposes to charge only if some condition is fulfilled. Save in so far as the proposal related to the period expiring on 30 April 1983 it was a proposal to charge the discount fare if the applicant was satisfied with the results obtained in the trial period. There was not before the Committee a proposal to charge that discount fare. When the applicant referred to an "option to extend on the same or variable hasis subject to negotiation with IArc" it expressed an intention that the period in which the eM re ee me ne er ee ne pamela A ee ee Ure * 1A. discount fare was to be charged was to come to an end unless the applicant chose to extend the period. tt is the word "option" which 1s so critical. Of course it was necessary that the decision to approve or not approve should be made promptly after the Committee had the information it required. At that stage it required a designation of-the travel in respect of which the request was made. It could not deal with a request which dealt with a discount air fare of which it could not be said that it was a fare that the applicant actually proposed to charge. Under the provisions of s.17(4) the introduction of an air fare has to he considered with respect to the profitability of the applicant and the likelihood of such introduction resulting in an increase of existing economy air fares of any trunk route operator over trunk routes. It is apparent a discount air fare which might or might not be adopted by an applicant for any particular period would present difficulties in assessing the effects thereof for the purposes of s.17(4). Tt is hardly such as can be thought to he within the contemplation of the legislature. Such a discount fare could hardly fit the concept of "the introduction of" the discount fare in ' accordance with s.17(4)(a) and (b). The provisions in s.17(5)(b) and s.17(6) conferring on the Committee the power to review the availability of an approved discount air fare require consideration. But I dao not think they affect the construction of s.17(1)(2)(3) and 19, (4). The provisions for review are relevant to the situation which arises where a discount air fare has heen approved in respect of a period either fixed or indefinite in duration, and there is a chance in the relevant circumstances which calls for reconsideration of the situation. It was argued that the form and substance of the approval was that the Committee approved the applicant's proposal for an indefinite period, subject to a condition, that the approval] was not to continue heyond 30 April 1983. It was said that there was no statutory authority to impose such a condition and that being so, the condition was void and the approval] for an indefinite period persisted. The form of the approval may Jend support to this view. But J think that on reading the document as a whole, and in the context of the foregoing telex messages, it approves the charging of the discount fare only for the stated period. I do not read it as an approval for an indefinite period with an inconsistent and unlawful condition attached thereto. Of course if the request related to a proposal to charge the discount fare for an indefinite period, ann the approval was qranted in respect of a wveriod ending on 39 April] 1983, the situation would he that the Committee had failed to approve "the proposed discount air fare". But it is my view that the Committee correctly intended to déal only with the unconditional proposal before nL a a a OO mee Mee VE enter mn tee hee areeres 20. it, namely, the proposal to charge the discount fare during the period ending 30 April 1983. It remains to observe that whichever way the problem is approached it is fundamental that al] that was approved on & March 1983 was "the above discount fare'. The above discount fare was, according to the terms of the telex of that daté, that for which approval was requested, "with supporting details of proposed discount fare of $1270.90 of round trip originating in Sydney or Melbourne over the route Melbourne/Albury/Sydney on F?7 airceraft."". Again one must return to identify the proposed 4Jiscount fare. And that fare appears to he that which the applicant had stated, and truthfully stated, that it proposed to charge in respect of air travel, namely in respect of travel during the period ending 30 April 1983. Accordingly, I do not think it open to construe the approval expressed in the Committee's telex of & March 1983 as an approval operating for an indefinite period with respect to a discount rate with an inconsistent > condition attached. If, as I think, the vroposed giscount fare was a fare in respect of which the only existing proposal was to charge 21t until 30 April 1°83, that jis all, on any view, that was, or could be, approved. The fact that the limitation of the period in the proposal was stated as a condition or restriction shoul@d be regarded as exeqitical or by way of eee "gr 2]. emphasis, but it would not enlarge the legal effect of the actual words of approval. On its proper construction it does not operate by way of defeasance of something granted. It states the quantum of what was granted. As a result the situation is not one raising considerations of the severability or otherwise of the time limitation. If, contrary to the view expressed above, it were that the period during which the operator desired the approval of the discount fare to remain in operation, ouqht to be regarded as a condition of availability within the meaning of s.17(2)(b) of the Act, then it would follow, as indicated above, that it itself with all other such conditions, constituted the discount air fare proposed to be charged in respect of travel on the relevant route. Jt would follow that if the request were qranted the grant would operate in respect of a fare proposed to be charged during the stated period. In that case the language of the telex of 8 March 1983 stating the time limit as a condition would accord literally with the terms of the proposal as I have interpreted it with its in-built time Jimit. So to express that "condition" would be within the leaal cdémpetence of the Committee. It would not operate as a qualification or modification of the terms of the request or the applicant's proposal. Having regard to the foregoing the conclusion at Dm ee rar ban ee eee ete i en ne ne ee ee rien me ete ee = 22. which T arrive is that on 2 March 1983 the Committee approved a discount air fare on specifieA conditions which the applicant proposed to charge in respect of the specified route during the period ending on 30 April 1983 and no longer. The application must therefore be dismissed with costs. wn eee « 1 Snnrpod IT