Airservices Australia v Buffier [2000] NSWSC 469

New South Wales Supreme Court

CITATION : Airservices Australia v Buffier [2000] NSWSC 469 CURRENT JURISDICTION: Equity FILE NUMBER(S) : SC 1617/99 HEARING DATE(S) : 18 May 2000 JUDGMENT DATE : 18 May 2000

PARTIES : Airservices Australia (P) Brian Buffier (D) JUDGMENT OF : Hamilton J

COUNSEL : J A Coorey, Solicitor (P) No appearance (D) SOLICITORS : Corrs Chambers Westgarth (P) No representation (D) CATCHWORDS : EQUITY [320] - Equitable remedies - Injunctions - Jurisdiction and availability - Effect of existence of other statutory remedies - In general - Effect of availability of criminal penalties. CASES CITED : Californian Theatres Pty Ltd v Hoyts Country Theatres Ltd [1959] SR(NSW) 188 Ramsay v Aberfoyle Manufacturing Co (Aust) Pty Ltd (1935) 54 CLR 230 DECISION : Permanent injunction granted.

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

HAMILTON J

THURSDAY, 18 MAY 2000

1617/99 AIR SERVICES AUSTRALIA v BRIAN BUFFIER

JUDGMENT

HIS HONOUR:

1 In this matter Airservices Australia, as plaintiff, seeks a permanent injunction against Brian Buffier, as defendant, in terms of an interlocutory injunction already granted that the defendant be restrained from contacting by telephone Sydney Air Traffic Control Operations Centre and the Sydney Airport Air Traffic Control Tower. That injunction was granted on an interlocutory basis on 30 March 1999 by Young J. 2 The evidence before Young J, and before me on the application for a permanent injunction, demonstrates that the defendant was disturbed or troubled by the noise of aircraft operations into and out of Sydney Airport. He made complaints to the plaintiff about this, which did not result in satisfaction. He then took to making repeated telephone calls to the Sydney Air Traffic Control Operations Centre and to the Sydney Airport Air Traffic Control Tower itself. The evidence demonstrates that one of the lines used for those calls is the Team Leader telephone line, the uses of which include communication with pilots of aircraft regarding operational matters and communication and coordination in the event of an emergency or disaster, as well as other important functions. It is not difficult to accept the word of Diana Dickens, the Air Traffic Control Manager for the Sydney Air Traffic Control Operations Centre, that the instant availability of that line for use in the Team Leader's functions is of great importance, and may be of vital importance, to aircraft movements in and out of Sydney Airport, and emergencies which may arise out of those operations. Furthermore, the evidence of Gordon Albany, an air traffic controller, demonstrates the upset and stress caused to staff attending to the extremely important operations of guiding aircraft in and out of Sydney Airport by repeated abusive telephone calls. Even if not abusive, extraneous telephone calls to such staff performing such functions obviously creates a potential for danger to people in the air and on the ground. 3 The fact of the matter is that since the interlocutory injunction was granted the telephone calls by the defendant have ceased. Mr Coorey, solicitor for the plaintiff, properly draws to my attention that Young J expressed some reservation about the validity of injunctive relief, and particularly permanent injunctive relief, on the basis that the calls potentially constituted criminal offences and raised the question of whether dealing with such matters should be left to the criminal law. However that may be, the defendant, having been informed that the matter is before the Court today for final orders in terms of the interlocutory injunction, has not appeared to oppose the granting of a permanent injunction. It may be that the reservations conveyed to me that as to the proper ambit of injunctive relief in relation to matters that also constitute breaches of the criminal law do not apply in this case because of the plaintiffs' special interest in the subject matter: see Ramsay v Aberfoyle Manufacturing Co (Aust) Pty Ltd (1935) 54 CLR 230; Californian Theatres Pty Ltd v Hoyts Country Theatres Ltd [1959] SR(NSW) 188. In any event in the present case it may be that part of the reason for the defendant desisting from his very dangerous conduct has been the actual existence of an injunction, as opposed simply to the possibility of criminal informations being laid against him. Bearing in mind the serious issues of public safety that may arise from repetition of this conduct, in my view, the proper course, bearing in mind the lack of opposition, is for the injunction to be made permanent, and that is the course that I propose to follow. 4 I order that the defendant be permanently restrained from contacting by telephone the Sydney Air Traffic Control Operations Centre and the Sydney Airport Air Traffic Control Tower. I order that the defendant pay the plaintiff's costs in the proceedings. 5 I should say that no valid interest of the defendant will be compromised by the granting of a permanent injunction. Any complaints which the defendant may have as to the mode of operation of Sydney Airport and the impact upon him of noise arising from aircraft operations, which I have no doubt may be very serious, but upon which it is not for me to adjudicate, can be raised by him by contacting Airservices Australia (insofar as it is the relevant authority) in a host of ways other than by occupying the operational telephone lines and engaging in conduct that is upsetting to staff in the course of their carrying out their important duties.