AIR SERVICES AUSTRALIA v ZARB

Court of Appeal (NSW)|1998-04-08|Before: Mason J, Priestley JA, Barwick CJ, Powell JA, Judgment Priestley JA

PRIESTLEY, POWELL JJA and ROLFE AJA 8 April 1998, 26 August 1998

Appeal by leave against decision to dismiss an application for summary judgment on the basis that no reasonable cause of action disclosed.

Appeal argued on the sole point that there was no cause of action as the appellant's actions were policy decisions and not operational decisions.

Appeal from refusal of the District Court to dismiss proceedings pursuant to PtllA 13(1)(a) and Ptl1A 13(1)(b) on the grounds that no reasonable cause of action was disclosed and the proceedings were frivolous or vexatious.

Matter argued on the sole point as to whether the defendant owed the plaintiff a duty of care on the basis that no duty of care arose because the activities of which the plaintiff complained came about from the exercise by the defendant of policy or quasi legislative functions rather than from the exercise of operational functions pursuant to Air Services Act 1995.

Held, applying the General Steel's test, that this was an inappropriate case to dismiss the proceedings summarily having regard to the developments in the law on this issue, the questionable applicability of the reasons of Mason J in The Council of the Shire of Sutherland v Heyman & Anor (1985) 157 CLR 424 on this topic, and the subsequent decisions of the High Court including Pyrenees Shire Council v Day (1988) 72 ALJR 152 and Romeo v Conservation Commission of the Northern Territory (1998) 72 ALJR 208.

Dey v Victorian Railway Commissioners (1948-1949) 78 CLR 62; General Steel Industries Inc v Commissioner for Railways (NSW) & Ors (1964) 112 CLR 125; Webster & Anor v Lampard (1993) 177 CLR 598; Wickstead & Ors v Browne (1992) 30 NSWLR 1; NRMA Insurance Ltd v A W Edwards Pty Ltd (Court of Appeal - 11 November 1994

unreported) and Esanda Finance Corporation Ltd v Peat Marwick Hungerfords (1997) 188 CLR 241 referred to and followed. See also W D & H O Wills (Aust) Ltd v State Rail Authority (Court of Appeal - 3 April 1998 - as yet unreported) and Avenhouse & Anor v The Council of the Shire of Hornsby (Court of Appeal - 15 May 1998 - as yet unreported).

Priestley JA I have had the benefit of reading in draft the reasons of Rolfe AJA. I agree with them and with his conclusions.

I wish to add that the point decided in this appeal is a very limited one, chosen by the appellant Airservices Australia. In the District Court the appellant sought to have the plaintiff's proceedings summarily and finally dismissed on the ground that even if she proved the allegations in her Statement of Claim, she would not establish any cause of action. That may turn out to be right, but the fact that it may be right did not entitle the appellant to stop the plaintiffs proceedings at that stage. To use the words of Barwick CJ in General Steel, the appellant had to show "the case of the plaintiff [was] so clearly untenable that it cannot possibly succeed" (1964) 112 CLR at 129, more fully cited in Rolfe AJA's reasons).

The basis on which the appellant sought to show the plaintiff's case was clearly untenable was that the allegations in her Statement of Claim did not give rise to a duty of care, and that the reasons of Mason J in Sutherland Shire Council v Heyman (1985) 157 CLR 424 on this point had become the law in Australia

which this court must follow. On this narrow issue I think the appellant must fail in this appeal. In my opinion what Mason J said in Heyman was not part of the ratio decidendi of that case in the sense relied upon by the appellant, and is not now recognised as such by the High Court.

In my opinion, on the ground chosen by the appellant in the District Court and this court, it was not entitled, at the stage the proceedings had reached, to have the plaintiff's claim shut out from further hearing.

I agree with Rolfe AJA that the appeal should be dismissed with costs.

Powell JA I have read in draft the Judgment which has been prepared by Rolfe AJA with which Judgment Priestley JA agrees. I regret that I cannot share their Honours' view that the appeal should be dismissed with costs. On the contrary, I am of the opinion that the appeal should be upheld, the orders made by Mahoney DCJ at first instance set aside and in lieu that it be ordered that the proceedings in the District Court be dismissed with costs, and that in addition, the Respondent should pay the costs of the Appellant of the appeal but have a certificate under the Suitors Fund Act 1951.

Although, at the commencement of the hearing of the appeal, the Court was at some pains to ascertain with precision what was to be the point the subject of the appeal and was informed by Mr A J Sullivan QC, who appeared with Ms L McCallum for the Appellant, that it was whether the Appellant was immune from suit in respect of the actions alleged to have been taken by it in respect of what were said to be its responsibilities for the planning and determination of, supervision of, control of and co-ordination of, flight paths leading into and out of Sydney (Kingsford Smith) Airport, which alleged actions were said to be negligent in the respects asserted in para6 of the Statement of Claim which had been filed on behalf of the Respondent, later during the course of the hearing of the appeal, Mr P C B Semmler QC, who appeared with Mr N J Mullany for the respondent, asserted that the Respondent's complaints were not limited in the way suggested by Mr Sullivan but extended to matters which were alleged to be operational matters. Since, contrary to what was said by Mahoney DCJ in his Judgment, the application which had been brought by the Appellant in the District Court was made, not pursuant to the provisions of Pt9 r17 of the District Court Rules - which deals with pleadings - but pursuant to the provisions of Pt11A 13 of the District Court Rules - the terms of which are set out by Rolfe AJA in his Judgment, and which deal with (inter alia) summary dismissal - it seems to me that the real question with which the Court is now faced is whether or not it can be said that, in the circumstances, the case which the Respondent sought to set up in her Statement of Claim is so clearly untenable that it cannot succeed. It is my view, in the light of the matters to which I will now refer, that the claim which the Plaintiff has sought to make out in her Statement of Claim is clearly untenable and should not be permitted to go for trial.

It is to be noted, at the outset, that, in the Statement of Claim which was filed on behalf of the Respondent on 24 May 1996, it is alleged in paraS that the Appellant breached its duty to take reasonable care for the safety of the Plaintiff, particulars of the alleged breach being set out in para6 of the Statement of Claim. Two things flow from those two matters, they being, that it is the acts of the Appellant - and not the acts of any predecessor of the Appellant or of any person to whose direction the Appellant is subject - that are the subject matter of the Respondent's complaint; and, second, that, since the cause of action in respect of which a litigant approaches a court must be complete at the time when he issues

his process (Re Keystone Knitting Mills Trademark!; Eshelby v Federated European Bank Ltd?; Wigan v Edwards3; Baldry v Jackson'), the acts complained of must have occurred during such time as the Appellant was in existence but prior to the filing of the Statement of Claim.

As I will seek to show, it is not possible for the Respondent to establish that the matters of which she complains in relation to flight paths were taken by the Appellant, or by any person for whose actions it was vicariously responsible.

Although the position prior to 1986, the relevance of which date will shortly appear, is by no means clear to me, it would seem likely that, as from 1920, when the Air Navigation Act 1920 (Cth) ("the Navigation Act') was passed, the general control of civil aviation and airports within Australia and of international flights into, and from, Australia was, until comparatively recent times, in the hands of the Department of Civil Aviation (which seems later to have been called the Department of Aviation) under the control of the relevant Minister, the Permanent Head of the Department seemingly being known as the Director-General of Civil Aviation. In addition to the Navigation Act, there appear from time to time to have been passed various acts dealing with aspects of the control of airports - as, for example, the Airports (Business Concessions) Act 1959 authorising the grant by the Minister on behalf of the Commonwealth of leases and licences in respect of land within an airport, and the Airports (Surface Traffic) Act 1960 authorising the control and regulation of parking of vehicles on land within an airport - and dealing with various aspects of the liability of those who might be involved in the carriage of passengers by air or otherwise involved in civil aviation - as, for example, the Air Accidents (Australian Government Liability) Act 1963, the Civil Aviation (Carriers Liability) Act 1959 and the Civil Aviation (Damage by Aircraft) Act 1958.

During the period to which I have just referred, much of the regulation and control of such operations appears to have been the subject of regulations - apparently known as the Air Navigation Regulations - made by the Governor-General pursuant to the provisions of s26 of the Navigation Act, or of other regulations made pursuant to similar powers contained in the associated Acts to which I have just referred. It seems to have been pursuant to provisions of the regulations made under the Navigation Act that the Minister for the time being established a service known as "Air Traffic Control".

Sydney (Kingsford Smith) Airport appears to have been established and to have commenced to operate in or about 1920.

Whatever may have been the original configuration of the runway, or runways, at the airport it is clear that, for many years prior to 1994, the significance of which latter date will shortly appear, the runway configuration featured two intercepting runways, one which ran in a direction roughly North West to South East - known as Runway 16 when approached from the North and Runway 34 when approached from the South - which runway had been the subject of significant extension into Botany Bay in order to accommodate the operations of heavy jet aircraft, and the other running in a direction roughly East North East to West South West known as Runway 25 when approached from the East and known as Runway 07 when approached from the West.

. [1929] 1 Ch 92, 103 per Lord Handworth MR . [1932] 1 KB 254

Whether or not dictated by the runway configuration, the fact seems to be, and for many years to have been, that there are two main air traffic routes into Sydney Airport, one from the North and the other from the South West, and a third, but less used, air traffic route from the East.

5 The home which is occupied by the Respondent is located approximately 1.5 kilometres to the North West of the threshold of what was formerly known as Runway 16 and in a direct line with a prolongation to the North West of the centre line on what was then known as Runway 16. This being so, it was, and remains, inevitable that any aircraft approaching from the North and coming in

10 to land on Runway 16 - now known as Runway 16 Right - or seeking to take off to the North from Runway 34 - now known as Runway 34 Left - would, and will, pass directly over the Respondent's home at a low altitude.

As is well known, the increasing volume of air traffic using Sydney (Kingsford Smith) Airport led to congestion and delays. In December 1982 the organisation

15 - by whatever name then known - responsible for controlling aircraft movements into and out of Sydney (Kingsford Smith) Airport, introduced a mode of operation, known as Simultaneous Operations ("SIMOPS") for controlling such movements. That procedure allowed each of Runway 16/34 and Runway 25/07 to be used simultaneously and thus permitted the airport to cope with a higher

20 volume of air traffic. However, the use of SIMOPS demanded a high level of skill and vigilance on the part of both air traffic controllers and pilots.

In early 1986, there was passed the Federal Airports Corporation Act 1986 (Cth) which Act established the Federal Airports Corporation ("the Corporation') as a body corporate with perpetual succession and which Act provided in s6:

(b) to provide the Commonwealth, governments, local government bodies, and other persons, who operate, or propose to operate, airports or facilities relating to airports (including airports and facilities outside

30 Australia) with consultants and management services relating to the

development and operation of those airports or facilities; and

(c) such other functions relating to airports, not being functions specified in subs8(2), as are declared by the regulations to be functions of the Corporation."

(2) The Corporation shall endeavour to perform its functions in a manner that

(a) is in accordance with the policies of the Commonwealth Government; (b) ensures the safety of persons using airports; (c) ensures that, as far as practicable,

40 the level of noise at airports is not such as to be detrimental to the communities near airports;

(f) ensures that the Corporation and the community served by Federal

(g) enables the Corporation to earn a reasonable return on the assets

(h) enables the Corporation to pay reasonable dividends to the

Commonwealth in accordance with this Act; and 50 (j) is in accordance with sound commercial practice.

(2) The functions of the Corporation do not extend to (a) Air Traffic Control (including the provision of facilities for Air Traffic Control); (b) matters relating to the control, by persons engaged in air traffic control, of vehicles on manoeuvring areas at Federal airports;

(f) the investigation of the need for additional Federal airports and the desirability of replacing existing Federal airports with new Federal airports; and (g) preparation of plans for, and the establishment of, airports that are to be Federal airports."

(S8(3) of the Act defining "Air Traffic Control" as a service established, and defining "Flight Service" as a service established, maintained or operated, by the Minister under regulations in force under the Air Navigation Act 1920).

S28 of the Act provided for the vesting in the Corporation, without any conveyance, transfer or assignment, of land owned by the Commonwealth which was a Federal airport - Sydney (Kingsford Smith) Airport was, and still is a Federal airport - while s29 of the Act provided that while a place owned by the Corporation as a Federal airport that place is held by the Corporation for and on behalf of the Commonwealth.

In June 1988 there was passed the Civil Aviation Act 1988 (Cth) ("the Civil Aviation Act") which Act established the Civil Aviation Authority as a body corporate with perpetual succession. $9(1), s9(4) of the Act provided (inter alia) as follows:

(a) as provided by this Act and the regulations, to conduct safety regulations of.

(i) civil air operations in Australian territory; and (ii) Australian aircraft operating outside Australian territory;

(c) to provide air traffic control services, and flight service services, for, in either case, surface traffic of aircraft and vehicles on the manoeuvring area of aerodromes;

(h) to provide services to the Bureau of Air Safety Investigation in relation to the investigation of aircraft accidents and incidents;

(j) any functions conferred on the Authority under the Air Navigation Act 1920;

(4) Subject to s12, the functions to provide services and facilities may be performed at the discretion of the Authority."

("air route" being defined by s3(1) of the Act as meaning "the navigable airspace between two points and the terrain beneath such air space identified, to the extent necessary, for the application of flight rules".)

"12(1) The Minister may give the Authority written directions as to the performance of its function.

(2) Directions as to the performance of the regulatory function shall be only of a general nature."

S98 of the Act provided that the Governor-General might make regulations, not inconsistent with the Act, (inter alia) prescribing matters required, or permitted, by the Act to be prescribed or necessary, or convenient, to be prescribed for carrying out or giving effect to the Act.

In pursuance of that power, the Governor-General made the Civil Aviation Regulations which Regulations, in addition to dealing with many aspects of the conduct of aerodromes, and civil aviation operations generally provided (inter alia) that the Authority might establish, maintain and operate (inter alia) a service to be known as "Air Traffic Control" the functions of which were (inter alia):

(a) to promote the safe and efficient conduct of flight operations by issuing air traffic control clearances and instructions and by giving information appropriate to the locality and circumstances in which the operations are conducted; and

(b) to promote the safe movement of aircraft on manoeuvring areas by giving instructions and information; and (c) to expedite and maintain an orderly flow of air traffic."

The increasing volume of air traffic using Sydney (Kingsford Smith) Airport, coupled with the high level of skill and vigilance on the part of air traffic controllers and pilots required in order that SIMOPS might continue, led to demands for the Construction at the airport of what came to be known as - and is still colloquially known as - the third runway (that is an additional runway parallel to Runway 16/34. The construction of that runway - situated about 800 metres to the East of Runway 16/34 - was announced by the then Minister for Shipping and Aviation Support in November 1991.

Up until this time Runway 16 was the preferred runway for departures, while Runway 16 and Runway 07 were the preferred runways for arrivals.

As part of the process of preparation for the coming into operation of the new runway and for the conduct thereafter of parallel runway operations, in July 1994, there were introduced Standard Terminal Arrival Routes (STARs), which were pre-planned arrival routes which joined incoming routes into the airport onto a fixed position near the airport and Standard Instrument Departures (SIDs) and Standard Radar Departures (SRDs), the combination of which was intended to segregate arriving and departing traffic, thus enhancing safety and efficiency.

The new runway was opened on 4 November 1994. Thereafter Runway 16/34 came to be known as Runway 16R/34L while the new runway came to be known as Runway 16L/34R.

Thereafter, the Governor-General made the Air Navigation (Aerodrome Flight Corridors) Regulations, which Regulations came into force on 23 December 1994. Reg3 and reg4 of the Regulations provided:

(a) for the purpose of approaching to land on a runway; or (b) for the purpose of departing after take of from a runway;

must fly within, and not deviate from, the appropriate designated flight corridor for the runway, except in accordance with an instruction or approval given under subreg(2).

(2) Subject to subreg(3) an air traffic controller may:

(a) instruct a jet aircraft to deviate from, or not to fly within, a designated flight corridor; or

(b) approve a jet aircraft deviating from, or not flying within, a designated flight corridor;

(3) An air traffic controller must not give an instruction or approval under subreg(2) unless it appears to the air traffic controller to be necessary to do so:

(a) having regard to the safety of the aircraft or any person; or (b) to avoid damage to property.

(4) In subreg(1) 'appropriate' means appropriate having regard to:

(a) the designated flight corridor or flight corridors for the runway; and (b) the kind of flight operation concerned; and

4(1) For the purposes of reg3, the flight corridor specified in Column 2 of an Item in the Schedule is designated for the runway specified in Column 3 of that Item in respect of the kind the flight operation specified in Column 4 of that Item.

(2) The points by reference to which the location and dimensions of a designated flight corridor are defined are the points determined in writing by the Minister."

while the Schedule referred to in reg4 was in the following form:

Column 1 Column 2 Column 3 Item Flight Corridor Runway

Flight Corridor A Runway 3
Flight Corridor B Runway 3
Flight Corridor C Runway 3
Flight Corridor D Runway 1
Flight Corridor E Runway 1
Flight Corridor F Runway 1
Flight Corridor G Runway 1

(Flight Corridor B directed a departing aircraft over the Respondent's home, while Flight Corridor F directed an arriving aircraft over the Respondent's home.)

As from 23 December 1994 SIMOPS procedures at Sydney (Kingsford Smith) Airport ceased.

After the coming into operation of Runway 16L/34R, the runways were preferred in the following sequence:

(a) Runway 16L and 16R were used for departures and Runway 16R and 16L for arrivals; and

(b) Runway 34L was used for departures and Runways 34R and 34L for arrivals.

In June 1995 there were passed the Air Services Act 1995 (Cth) ("the Air Services Act") and the Civil Aviation Legislation Amendment 1995 (Cth) ("the Amendment Act'') the combined effect of which two statutes was to abolish the Civil Aviation Authority and to divide the functions formerly performed by the Civil Aviation Authority between two new bodies corporate, Air Services Australia, the Appellant and the Civil Aviation Safety Authority.

S8(1), s8(3), s9(1), s16(1), s16(3) of the Air Services Act provide (inter alia):

(a) providing facilities to permit safe navigation of aircraft with Australian administered airspace;

(c) co-operating with the Bureau of Air Safety Investigation in relation to the investigation of aircraft accidents and incidents.

(3) Subject to subs9(1) and s16, the extent to which AA provides services and facilities is subject to AA's discretion.

9(1) In exercising its powers and performance its functions, AA must regard the safety of air navigation as the most important consideration.

16(1) The Minister may give directions to AA relating to the performance of its functions or the exercise of its powers.

(3) AA must comply with a direction given under subs1."

The Amendment Act provided for the transfer to Air Services Australia and to the Civil Aviation Safety Authority of the assets and liabilities and the staff of the Civil Aviation Authority. The Amendment Act also amended the Civil Aviation Act (inter alia) by omitting s8(1), s9 and s9(a) and substituting:

"8(1) An Authority called the Civil Aviation Safety Authority is established by this subsection.

9(1) CASA has the function of conducting the safety regulation of the following, in accordance with this Act and the regulations:

(b) the operation of Australian aircraft outside Australian territory;

(d) developing effective enforcement strategies to secure compliance with aviation safety standards;

(e) issuing certificates, licences, registrations and permits;

(f) conducting comprehensive aviation industry surveillance, including assessment of safety related decisions taken by industry management at all levels for their impact on aviation safety;

(g) conducting regular reviews of the system of civil aviation safety in order to monitor the safety performance of the aviation industry, to identify safety related trends and risk factors and to promote the development and improvement of the system.

(3) CASA also has the following functions: (a) co-operating with the Bureau of Air Safety Investigation in relation to the investigation of aircraft accidents and incidents;

9A(1) In exercising its powers and performing its functions, CASA must regard the safety of air navigation as the most important consideration."

In addition the Civil Aviation Act was amended by inserting a new section, s12A reading as follows:

"12A(1) The Minister may notify CASA in writing of the Minister's views on the following matters:

(b) the manner in which CASA should perform its functions.

(2) In performing its functions CASA must take account of notices given under subs(1)."

The Air Services Regulation which came into operation in July 1995 provided (inter alia):

"3.02 The functions of the Air Traffic Service are:

(a) to facilitate the safe and efficient conduct of aircraft flights; and

(b) to facilitate the safe movement of aircraft on the manoeuvring area of aerodromes; and

("Air Traffic Service" being defined as meaning "AA in its capacity as the provider of air traffic services".)

At the time of the coming into operation of the Sydney Airport Curfew Act 1995, the Air Navigation (Aerodrome Flight Corridors) Regulations were amended by the Air Navigation (Aerodrome Flight Corridors) Regulations (Amendment) in the following (Inter alia) respects:

the words "a jet aircraft' were omitting from each of reg3(1), reg3(2)(a), reg3(2)(b) and there were substituted the words "a jet aircraft or a relevant propeller driven aircraft"; and

Reg4(1) was amended by inserting after the words "of Reg3" the words "in relation to jet aircraft".

("the words "relevant propeller driven aircraft" being defined as meaning "an aircraft to which s14 of the Sydney Airport Curfew Act 1995 applies.")

Following the election of the current Government, the then Minister for Transport and Regional Development, on 20 March 1996, acting under s16 of the Air Services Act 1995 directed the Appellant, inter alia, to:

"1. Take immediate steps, consistent with the requirements of the Act, to increase the usage of Runway 07/25 (known as the East West runway) at Sydney (Kingsford Smith) Airport in order to distribute the noise generated at the airport more fairly. Consistent with this, the East West runway is to operate in accordance with the following principles:

¢ The full length of the runway is to be available for use by both jet and propeller aircraft.

¢ Procedures involving independent use of the intersecting runways (such as the procedures known as SIMOPS) are not to be adopted.

¢ Usage of the runway should be directed, consistent with safety and efficiency of airport operation, toward achieving the earliest and maximum practicable reduction in the number of aircraft taking off and landing over areas to the North of the airport."

In April 1996, the Air Navigation (Aerodrome Flight Corridors) Regulations were further amended by omitting from the Schedule to the Regulations Items 2, 4 and 6.

On 24 April 1996 there was issued by the then Minister for Transport and Regional Development a Media Statement which read (inter alia) as follows:

"FAIRER SYDNEY AIRPORT FLIGHT PATHS The Federal Government has abolished the inequitable flight corridors to the North of Sydney Airport, and returned to broader flight paths to eliminate the concentration of air noise in suburbs North of Sydney Harbour. The decision fulfils a commitment made by the then Opposition Leader John Howard prior to the election, which began with the 28 March order to re-open the East/West runway. The measures will have the added effect of trimming delays for air passengers by reducing air space congestion close to the airport.

New procedures introduced by Air Services Australia on 22 April allow incoming jet flights to join final approach earlier than the restrictive 6 mile limit introduced by the previous Government.

Some departures to the North will also be allowed to turn off between 4 and 6 nautical miles."

Despite the direction given by the Minister in March 1996 and _ the amendments made to the Air Navigation (Aerodrome Flight Corridors) Regulations in April 1996, the fact remains that an aircraft landing from the North on Runway 16R will still be obliged to pass over the Respondent's home at low altitude, and an aircraft taking off from Runway 34L will still be obliged to pass over the Respondent's home at low altitude.

The result of all this is that, from December 1994, when the Air Navigation Aerodrome Flight Corridors) Regulation came into operation until no earlier than 28 March 1996, when the Minister gave his direction, or no later than April 1996, when the Air Navigation (Aerodrome Flight Corridors) Regulations were amended, the promulgation of flight corridors which jet aircraft, and, later, relevant propeller driven aircraft, were required to use, and from which they could not diverge without becoming subject to penalties, was done by way of regulation, the requirements of which, after the Appellant came into being, the Appellant's employees, the air traffic controllers, were required to enforce. It is thus clear, in my view, that if this action is to be permitted to go for trial, the Respondent will be unable to establish any of the particulars of breach of duty charged by her in para6 of her Statement of Claim. This being so, it seems to me, that the Appellant's application to Mahoney DCJ should have succeeded and the action should have been summarily dismissed.

For these reasons, I would make the Orders which I have indicated at the commencement of these reasons.

Carman Francisca Zarb, for whom Mr P C B Semmler of Queen's Counsel and Mr N J Mullany of Counsel, appeared, resided, at all material times, in the Sydney suburb of Sydenham. On 24 May 1996 she commenced proceedings by

an Ordinary Statement of Claim in the District Court of New South Wales against Airservices Australia, ("AA"), for which Mr A J Sullivan of Queen's Counsel and Ms L McCallum of Counsel appeared, which is a statutory corporation under the Air Services Act 1995 ("the Act"). In so far as is presently relevant she pleaded her case thus:-

"1. The Defendant is the Airservices Australia and is liable to be sued in and by its said corporate name and style.

The Defendant was at all material times responsible for the planning and determination of, supervision of, control of, and co-ordination of flight paths leading into and out of Sydney Kingsford Smith Airport which airport is located in Mascot, near Sydney in the State of New South Wales.

The plaintiff is a housewife who resides at 10 Hogan Avenue Sydenham.

The Defendant owed persons such as the Plaintiff a duty to take care of their safety.

The Defendant breached its duty to take reasonable care for the safety of the Plaintiff resulting in the Plaintiff suffering injuries and disabilities and sustaining loss and damage.

Particulars of the breach by the Defendant are as follows:

(i) designing and planning aircraft flight patterns which concentrated unusual level of noisy aircraft immediately above the Plaintiff's roof;

(ii) co-ordinating the flight paths of an aircraft in such a manner so as to expose the Plaintiff to damage levels of noise;

(iii) exposing the Plaintiff to a risk of damage and injury of which the Defendant knew or ought to have known;

(iv) failing to warn the Plaintiff that the Defendant's flight plans introduced upon the opening of the third runway would injure the Plaintiff and her hearing;

(v) failing to take any or any adequate immediate steps to protect the Plaintiff from damage and loss of hearing;

(vi) allowing, permitting and directing as many as 150 aircraft per day to fly directly over and in close proximity to the Plaintiff's roof.

(7) The Plaintiff relies on an admission upon the Defendant authorising, paying for and installing insulation in the Plaintiff's home in 1996 that at a time when she had already suffered from hearing loss".

The balance of the pleading related to the injuries and damage allegedly suffered by Mrs Zarb.

On 15 January 1997 AA filed a Notice of Grounds of Defence in which it admitted paral, did not plead to para3, did not admit para2, para8 and para9, and denied para4 to para7 of the Ordinary Statement of Claim.

On 18 March 1997 AA filed a Notice of Motion, pursuant to Pt11A 13(1)(a) and 13(1)(b), seeking an order that judgment be entered for it or, alternatively, the proceedings be summarily dismissed with costs. The Rule provides:-

"3(1) Where in any proceedings it appears to the Court that in relation to the proceedings generally or in relation to any claim for relief in the proceedings:-

the Court may order that the proceedings be stayed or dismissed generally or in relation to any claim for relief in the proceedings". "Dismiss" is defined in the Rules as:-

"in relation to any proceedings means finally dispose of the proceedings, but (except where the proceedings consist of an appeal to the Court) without prejudice to any right to commence fresh proceedings seeking the same, or substantially the same, relief".

It moved on the affidavit of Mr William Charles Sims, sworn 14 March 1997, who identified himself as the Terminal Control Unit Manager Sydney Air Traffic Services and, as such, the person responsible for the provision of air traffic services in the airspace surrounding Sydney Airport. He referred to the Act and asserted that its function was to provide services to aircraft, which facilitate safe air navigation, including air traffic control, flight information and search and rescue services.

The affidavit stated that Sydney Airport is very busy and described where it is located, the main air traffic routes, the various runway configurations, and that Mrs Zarb's residence "is almost exactly on the centre line of runway 16R".

In paralO he set forth a number of "competing factors", which have to be balanced to determine flight path locations, including "relevant policy directives". He continued in paral 1:- 'Operational restrictions mean that certain suburbs particularly those close to the Airport, will always be exposed to a high level of aircraft noise regardless of what noise abatement policies are put in place. For example, in order to make a successful landing, aircraft require a period in which to stabilise prior to touchdown. The final approach of all high capacity regular public transport aircraft must be aligned with the centre line of the runway generally by four miles from the point of touchdown.

Accordingly the house in which Mrs Zarb lives, which is approximately one mile from the threshold of runway 16R, has always had, and is going to have, aircraft flying almost directly over the top of it".

He described steps taken in relation to handling the problems and, in paral8, he referred to the fact that AA "develop procedures in line with government environmental and noise abatement policy" by following certain procedures.

In paral9 he stated that the Minister has the power to direct AA as to which runways and flight paths should be used under s16 of the Act, and that the Chief Executive Officer and other authorised officers of it have delegated power to alter aircraft flight paths.

He commenced, in para20, to consider the construction of a new parallel runway, usually referred to as the third runway, and to the effect of its opening on 4 November 1994. Thereafter he referred to certain procedures adopted pursuant to the Air Navigation (Aerodrome Flight Corridors) Regulations 1994 and to a Ministerial Direction issued on 20 March 1996 concerning increased use of the east/west runway.

The Notice of Motion came on for hearing before Mahoney DCJ and, on 22 August 1997, his Honour gave judgment dismissing it with costs. It is against that decision that AA was granted leave to appeal on 15 September 1997.

At the commencement of the hearing the Court raised with Mr Sullivan a number of matters, which may, arguably, have arisen for decision. They included the fact that the Act did not come into force until 1995. Mr Sullivan stated expressly that whilst that and various other matters, such as a limitation point, may arise on the hearing, if there was one, the only matter which AA had submitted for determination by Mahoney DCJ, and the only matter it wished to

argue in this Court, was whether, as Mrs Zarb asserted and it denied, AA owed a duty of care to Mrs Zarb. Within that question the following points arose:-

(a) Whether there was no duty of care because the activities of which Mrs Zarb complained arose from the exercise by AA of policy or quasi-legislative functions, such that their exercise did not give rise to a cause of action in her for negligence; rather than from the exercise by AA of operational functions, which would.

(b) Whether the authorities are so clear that this is an appropriate case to terminate Mrs Zarb's case in line consistently with the "General Steel" test.

It was not in issue that in approaching the matter in this way AA was obliged to accept the truth of the matters pleaded, and to assert that notwithstanding that acceptance, and particularly acceptance of the matters pleaded in para6(1), para6(ii) and para6(vi), there was no allegation of any matter giving rise to a duty of care for the reason stated in subpara(a) above.

Finally, it was not in issue that the District Court Rule under which AA moved does not entitle it, as claimed in the Notice of Motion, to "judgment", but to a stay or dismissal of the proceedings, which latter remedy has the consequences stated.

The basically relevant provisions of the Act are s8(1), s9, s11(1), s12(1), and s16(1). S8(1) provides:-

(a) providing facilities to permit safe navigation of aircraft within Australian-administered airspace;

(d) carrying out activities to protect the environment from the effects of, and the effects associated with, the operation of Commonwealth jurisdiction aircraft;

(e) any functions prescribed by the regulations in relation to the effects of, and effects associated with, the operation of Commonwealth jurisdiction aircraft;

(g) any other functions prescribed by the regulations, being functions relating to any of the matters referred to in this subsection;

(i) any functions incidental to any of the above functions.

(3) Subject to subs9(1) and subs16, the extent to which AA provides services and facilities is subject to AA's discretion".

"(1) In exercising its powers and performing its functions, AA must regard the safety of air navigation as the most important consideration;

(2) Subject to subs(1), AA must exercise its powers and perform its functions in a manner that ensures that, as far as practicable, the environment is protected from:

(a) the effects of the operation and use of aircraft; and (b) the effects associated with the operation and use of aircraft".

"Tn addition to any other powers conferred on it by this Act, AA has, subject to this Act, power to do all things necessary or convenient to be done for or in connection with the performance of its functions".

"The Chief Executive Officer may, in writing, delegate any of AA's powers under this Act to a member or an employee".

"The Minister may give written directions to AA relating to the performance of its functions or the exercise of its powers".

$16(3) obliges AA to comply with any such direction.

"(1) For the purpose of assisting the safe navigation of aircraft, AA may designate air routes and airways in Australian-administered airspace.

(2) AA may determine the conditions of use of a designated air route or airway".

"Air route" is defined as "a specified route between 2 points, the purpose of which is to channel the flow of air traffic to facilitate the provision of air traffic services"; and "airway" is defined as "a control area, or a specified part of a control area, established in the form of a corridor equipped with navigational aids".

In relation to certain activities such as removal of safety hazards, (reg3.04); giving directions to fire fighters and volunteers, (reg4.04); and recovery of a debt that is not secured by an approved security interest, (reg6.10(4)); liability of AA is expressly excluded. There is no such exclusion in relation to reg2.

His Honour noted that the Court was asked to strike out Mrs Zarb's proceedings on the ground that they failed to disclose a cause of action. He referred to the pleadings and Mr Sims' affidavit to which no substantial objections were taken and on which he was not cross-examined. He turned to the Act and set out AA's functions pursuant to s8(1) thereof Under the heading "The Nub of the Matter" he said:-

"AA's motion fairly and squarely raises the question of whether, laying down a plan of how aircraft are to land at or take off from the Airport, is carrying out a 'Police (sic) Function' or an 'Operational Function'."

His Honour noted AA's submission, namely that the combined effects of s8, s9 and s16:-

".. clothe AA's aircraft movement plans with a 'policy function' mantle and that all of the relevant Australian authorities (1) have decided that such decisions are 'immune from a court's evaluation of them in terms of duty and breaches thereof, to recapture learned senior counsel's turn of phrase".

"Restated it was put that an action pleaded in negligence will not lie against an instrumentality for doing that which the Act requires it to do".

The authorities to which his Honour had been referred were, apparently, The Council of the Shire of Sutherland v Heyman & Anor (1984-1985) 157 CLR 424; McMullin v ICI Australian Operations Pty Ltd (1997) 72 FCR 1; and what he described as a "general reference" to Bienke & Ors v Minister for Primary Industries (1996) 63 FCR 1.

His Honour's reasons noted that Senior Counsel for Mrs Zarb did not seek to challenge the correctness of any legal principle sought to be relied upon by AA, but put two independent points in support of the general proposition that the motion should be dismissed, namely that it was too early for the making of such an application, because in the absence of any evidence the Court could not rule

that the implementation of any particular flight paths "was indeed the result of a 'policy function'", and, alternatively, that s8(1)(d) of the Act had a different effect in that "it transformed AA's flight path planning decisions into an environmental issue". The second point was not decided by his Honour and was not agitated before this Court.

His Honour directed attention to the well known line of authority as to the circumstances in which proceedings may be struck out as failing to disclose a cause of action, dealt with the evidence of Mr Sims, and stated that because of the view he had formed on the first issue, it was unnecessary for him to consider the second. He accepted the correctness of the submission that it was too early to make the order for which AA contended, because it was not possible for him to come to any firm decision about whether the aircraft movements in the airspace above Mrs Zarb's house in the period in respect of which she complained "found their way into that airspace as a result of a decision which was wholly political or wholly operational or a mixture of both".

He considered that the authorities to which he had been referred delineated clearly between policy and operational decisions, and:-

"For my part, however, I am not satisfied that the plaintiff should be precluded from demonstrating by recourse to the various interlocutory and other evidentiary courses which are open to her in the conduct of litigation to establish that what took the aircraft into the airspace above her house were operational decisions or, indeed, that in her particular instance they might be a combination of both policy and operational decision in which case a nice and to my mind brand new legal issue would arise for determination, namely is the Government instrumentality immune from suit if its operations are in nature a combination of policy and operational decisions".

Mrs Zarb was granted leave to file a Notice of Contention in which she asserted that the status, role and effect of the "policy"/"operational" distinction in Australia is uncertain, such that it would be inappropriate to strike out her pleading "'on the basis that the distinction determines the viability of the alleged cause of action".

There is a consistent line of authority in the High Court and in this Court, which places a high onus of persuasion on a party seeking to have proceedings dismissed summarily. AA did not seek to dispute the correctness of these authorities. However, I find it useful to remind myself of the highly demanding test they impose on a party seeking the relief for which AA contended. As Dixon J said in Dey v Victorian Railway Commissioners (1948-1949) 78 CLR 62 at p91:-

"The application is really made to the inherent jurisdiction of the Court to stop the abuse of its process when it is employed for groundless claims. The principles upon which that jurisdiction is exercisable are well settled. A case must be very clear indeed to justify the summary intervention of the Court to prevent a plaintiff submitting his case for determination in the appointed manner by the Court with or without a jury. The fact that a transaction is intricate may not disentitle the Court to examine a cause of action alleged to grow out of it for the purpose of seeing whether the proceeding amounts to an abuse of process or is vexatious. But once it appears that there is a real question to be determined whether of fact

or law and that the rights of the parties depend upon it, then it is not competent for the Court to dismiss the action as frivolous and vexatious and an abuse of process'. (my emphasis)

After considering that proposition further his Honour said, at p92:-

"Tt is in my opinion of more importance to maintain the integrity of the principle that under cover of the inherent jurisdiction to stop abuse of process litigants are not to be deprived of the right to submit real and genuine controversies to the determination of the courts by the due procedure appropriate for the purpose than for this Court to add another to the many judicial attempts that have been made to construe and apply the perplexing provisions that stand in Victoria as s5(2)(b) of the Workers' Compensation Act 1928".

At a glance

Court

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Before

Source

Judgment (297 paragraphs)

Parties

Legislation Cited (4)

Cases Cited (18)

Cited By (5)