NOT FOR DISTRIBUTION IN THE FEDERAL COURT. OF AUSTRALIA ) ) NEW SOUTH WALES DISTRICT REGISTRY } No. G138 of 1987 — ) ) GENERAL DIVISION ANSETT TRANSFORT INDUSTRIES LIMITED Applicant PETER FREDERICK MORRIS who is sued in his capacity as Minister of State for Aviation First Respondent RAE MARTIN TAYLOR who is sued in his capacity as Secretary of the Department of State for Aviation Second Respondent EAST-WEST ATRELINES (OPERATIONS) LIMITED 13 April 1987 REASONS FOR JUDGMENT 2 APR 1987 FEDERAL COURT OF /Q AUSTRALIA ~ PAINCIPAL A REGISTRY A KS On last Friday afternoon I gave leave to aAnse€t. Tra Bort LOCKHART J. Industries-himited ("Ansett") to file in Court an application seeking an order of review under the Administrative Decisions (Judiczal Review) Act 1977 ("the Judicial Review Act") of decisions of the Minister for Aviation said to have been made between February 1987 and 8 April 1987 to grant acquisition certificates for two F28 aircraft pursuant to para. 19(1)(c) of the Airlines Equipment Act 1958 ("the ty ld Vw Equipment Act") bo East-West Airlines (Operations) Limited ("East-West"). The a Th el Lication alsa eeks an order uashin the 1s] ul decisions of the Minister to grant the acquisition certificates and an un order restraining the Secretary of the Department of Aviation _ from granting approval pursuant to Regulation 4N of the Customs (Prohibited Imports) Regulations to East-West to import the two F28 aircraft into Australia. Ansett claims interlocutory relief, namely: (a) an order, pursuant to s. 15 of the Judicial Review Act, suspending the operation of the Minister's decision to grant acquisition certificates or staying all or any proceedings under the Minister's decisions to grant the acquisition certificates, in each case pending the hearing and determination af this preceeding or Further order; and (b) an order restraining the Secretary from granting import approval pursuant to Regulation 4N of the Customs (Prohibited Imports) Regulations to East-West until the final hearing and determination of this proceeding. Ansett also seeks other orders which it is unnecessary for present purposes to mention. Ansett's application was not made ex parte notwithstanding the speed with which the proceeding was commenced. The Minister, the Secretary and East-West were represented by counsel before me on Friday. They oppose the grant of interlocutory relief. In February this year I heard proceedings G584/86 and Ld 6585/86. Proceeding G585/86 was commenced by Ansett against the Minister. It sought to review both the Minister's estimate of traffic and determination of capacity for East-West for the period 1 February to 30 June 1997 ("capacity determination No. 6") and an acquisition certificate granted to East-West to obtain a Boeing 737-300 aircraft wy in March 1987, ("the B737 acquisition certificate"). Capacity determination No. 6 and the 8737 acquisition certificate were challenged by Ansett on various grounds including grounds of natural justice. I reserved my decision in those proceedings and judgment has not yet been given. Since February East-West has apparently deferred its plan to import the Boeing 737-200 jet aircraft which 1s the subject of the B737 acquisition certificate. It has acquired, instead, two Fokker F28 twin jet aircraft wnich were due to arrive in Australia sometime during last weekend. Counsel for East-West stated that some six to eight weeks would elapse after the arrival of the aircraft before they would be placed in service owing to the necessity for various tests and adjustments for the purpose of ensuring, amongst other things, compliance with Australian air safety requirements. The Minister has granted acquisition certificates to East-West pursuant to s. 19 of the Equipment Act to obtain the two F28 aircraft. Tt is asserted by Ansett that the F28 acquisition certificates were granted on the basis of capacity determination No. 6 and in lieu of the 8737 acquisition certificate, both of which are under challenge and awaiting judgment in proceeding G585/86. This assertion is not denied by any respondents to this latest proceeding. Counsel for the Secretary said that the Secretary had not yet granted import approval pursuant to Regulation 4N to East-West and that no such approval would be granted until tomorrow at the earliest. In those circumstances, as there was no imminent threat that such approval would be granted after argument concluded late on Friday afternoon I said that I would give judgment this morning. The application for interlocutory injunctive relief on last Friday was made urgently and with limited evidence to support it. T must therefore do the best I can in the circumstances to determine the Matter. The hearing before me in February of matters G584/86 and G585/86 was lengthy and involved evidence and argument in respect of Many issues of varying degrees of complexity. Although I have not yet given judgment in those matters plainly they give rise to serious questions to be tried. As the F28 acquisition certificates were presumably granted on the basis of capacity determination No. 6 and in lieu of the B737 acquisition certificates, both of which are impugned in proceeding G585/86, there is a serious question to be tried in this proceeding which is, so far as I know, the latest proceeding to have been anstituted involving the rights of the parties inter se. Where does the balance of convenience Lie? Ansett claims that the status quo should be maintained pending the final hearing of this latest proceeding. It was submitted that if any interlocutory injunctive relief is granted the Minister will be required, in the event that Ansett succeeds in the case, to reverse the procedure which led to the two F28 aircraft entering Australia thereby leading to East-West being required to dispose of what would then be surplus capacity. The coarcractness of this submission was challenged by East-blest. Other consequences were pointed to by Ansett which were said to be potentially harmful to it. Any damages to East-West, it was submitted, would be covered by the usual undertaking to damages which counsel for Ansett proffers. On the other hand, as the Minister has presumably granted acquisition certificates enabling East-West to acquire the two F28 aircraft, there is a real question whether any interlocutory order of the Court suspending the operation of the Minister's decision to grant the certificates or staying proceedings under the decision of the Minister would have any effect as, in the nature of things, there may be nothing to suspend or stay. Counsel for the Secretary submitted there is no evidence of any threat by the Secretary to make any decision relating to the grant of import approval pursuant to Regulation 4N to East-West, and, even if there were, there is no evidence that any such decision would be tainted with error or otherwise susceptible to review under the Judicial Review Act. Another relevant consideration which bears on the balance of convenience is that the aircraft will apparently not be in service for six to eight weeks. Within this time judgment will probably be given in proceedings G584/86 and G585/86. The parties will then know where they stand on the substantive issues involved in the present case as Puctber, cmunse: For fasn-Aest stated in TWourk that East-Wese would not being the two F2S aireraft into public transport operation or activity without at least seven days prior notice to Ansett. In ali the circumstances I am satisfied that the balance sf convenience does not Favour the geankt of iunterlsacutory iniunccive relief. If the oosition changes over the ensuing weeks Ansebto may, of cTourse, renew Lts apelication. rl v fu rE Tel fet be n w cr be au = Hy is]24 c i) fa) cr v < iit etoa t au Mt ies u s iu Hh ci cns u a i) nN I Oy costs. I certify that this and this and the oreceding five (5) pages are a true copy of the Reasons for Judgment of Ehe Honourable Mr. dustice Lockhart. Dated: 13 April 19387 Be) mt Associate Counsel and Solicitors for Ansetk J.D. Merralls 9.C. and Transport Industries (Operations) J.G. Santamaria instructed by Ltd. Messes. Arthur Robinson & Hadderwicks Counsel and Solicitors far D. Graham 9.C. and Peter Frederick Morris and J.E. Middleton instructed by Rae Martin-Paylor the Australian Government olicitor Counsel and Soliciwtsrs For R.A. Conti 0.C. and Bast-West (Operations) Ltd. aA. Suilivan instcucted by Messrs. Sly & Russell Date of Hearing: id April 1387 Date of Judgment: 15 April 1987