DIRECTOR OF CIVIL AVIATION v. HONG KONG AIRCREW OFFICERS ASSOCIATION

HCAL51/99

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ADMINISTRATIVE LAW LIST NO.51 OF 1999

--------------------------

--------------------

J U D G M E N T

--------------------

1. This is an application to set aside an order by which the applicant was granted leave to apply for judicial review upon consideration of papers submitted by the applicant.

2. I granted leave on 17th May 1999 for the applicant to apply for an order of certiorari to quash the decision of the respondent to permit Cathay Pacific Airways ("CPA") to adopt a flight limitation scheme which contained variations from a standard scheme published by the respondent. The applicant is a body constituted under the Trade Unions Ordinance to represent the interests of aircrew employed by CPA. A notice of motion has been filed.

3. By reason of section 15 of the Civil Aviation Ordinance, there is incorporated into local legislation the provisions of the Air Navigation (HK) Order 1995, which I shall refer to as "the Order". Article 54(1) of the Order provides that :

"(1) The operator of an aircraft to which this Article applies shall not cause or permit that aircraft to make a flight unless :

(a) he has established a scheme for the regulation of flight times for every person flying in that aircraft as a member of its crew; and

(b) the scheme is approved by the Chief Executive subject to such conditions as he thinks fit; and

(c) either -

(i) the scheme is incorporated in the operations manual required by Article 25 of this Order, or

(ii) in a case where an operations manual is not required by that Article the scheme is incorporated in a document, a copy of which has been made available to every person flying in that aircraft as a member of its crew; and

(d) he has taken all such steps as are reasonably practicable to ensure that the provisions of the scheme will be complied with in relation to every person flying in that aircraft as a member of its crew."

Responsibility for approval of the scheme has been delegated to the respondent.

4. In August 1998, the respondent promulgated a document known as "CAD 371" entitled "The Avoidance of Fatigue in Aircrews", which contained standard provisions upon which Hong Kong operators of aircraft were required to base their flight limitation schemes for approval under article 54 of the Order.

5. Section 5.1 of CAD 371 states that :

"In order to gain approval of a FTL scheme an operator shall construct the scheme within the provisions set out in this document ('the standard provisions')."

And section 6.1 says that operators were entitled to apply to incorporate in their FTL scheme, for approval, variations from the standard provisions. But it goes on to say :

"Approval to do so will only be given where an operator can show that, despite the variation, the level of protection against fatigue will, at least, be equivalent to that provided by the standard provision."

The evidence is that CAD 371 was the result of a comprehensive review of FTL schemes by a group comprising medical experts and representatives of Hong Kong airlines and pilots and of the respondent.

6. Then CPA submitted to the respondent its proposals for its flight limitation scheme and, in the result, there was approved by the respondent a scheme which varied from CAD 371 and the applicant says that the variations are such that the level of protection against fatigue is less, and certainly not equivalent to that provided by the standard provisions.

7. The applicant says that it has a relevant interest in the matter because the decision of the Director to allow the variations bear upon the safety of its members and, further, that they are enjoined by the terms of the Order from performing duties as aircraft crew members when suffering from fatigue or suspecting that they might suffer from fatigue. It is not suggested by the respondent that the applicant does not have sufficient interest to launch the proceedings.

8. The grounds of the application stated that the decision by the respondent to approve the variations was erroneous in law and inherently unreasonable in the Wednesbury sense. That broad statement may require some particularization or refinement in the light of the way the matter is put today by Mr Dykes, SC, who appears on behalf of the applicant. He puts his argument in two ways :

9. First, that it is to be implied from CAD 371 itself that the Director considers those standards to be the minimum acceptable standards, in which case any dilution of them - and it is said by the applicant that the CAP approved scheme is such a dilution - is a breach of his duty under article 54 to approve schemes, it being implicit in that provision, namely, article 54, that only safe schemes will be approved. I do not imagine that the Director would accept that CAD 371 is a minimum standard as opposed to a very good standard upon which he wishes to insist, in which case, if the evidence so establishes, there is not likely to be anything in this particular point. The alternative way in which the argument will run for the applicant is that it had a substantive legitimate expectation that the approved scheme would provide protection no less than that provided by CAD 371. The promise to that effect, or the suggested promise to that effect, is gleaned from the very terms of CAD 371, so the argument goes, not least from the terms of section 6.1. It is said that the promise gave rise to an expectation not of some procedural right, but of a right not to be subjected to lesser safeguards save for good reason, and it is therefore incumbent, it is said, on the Director to show either that he reasonably took the view that the approved CAP scheme does not provide less protection, or to show that there has been good reason for the change of policy constituted by departure from CAD 371 standards. The applicant would have to show, if it established a legitimate expectation of the type for which it contended, that there was no good reason for departing from the standards or that in doing so, the Director has taken into account irrelevant considerations or ignored relevant ones.

10. The evidence filed on behalf of the applicant at the application for leave stage cited a number of examples intended to illustrate how it was that the approved scheme provided less protection. So, for example, section 3.6 of CAD 371 requires certain factors to be considered when constructing crew rosters. That requirement is deleted from the approved scheme. Then it says that the rest period envisaged by CAD 371 is, by the variation, in effect reduced below the envisaged eight hours. There are other examples of that kind.

11. The grounds pleaded in the summons for setting aside my order to grant leave are that the matter is outwith the proper scope of judicial review, for what the applicant is in effect asking the court to do is to substitute its own opinion as to proper safety standards for those of the respondent and those experts who advised him, a task which, in any event, is wholly outside any court's competence, a suggestion which is, I know, intended with no offence. It is said then that the decision of the respondent can on no view be said to be Wednesbury unreasonable; and further, that since there is in any event to be a review of the scheme in September this year, the court would almost certainly not grant relief. In short, it is argued that the application is entirely devoid of merit.

12. Not pleaded in the summons but advanced in a skeleton argument submitted by the respondent is the contention that there has been material non-disclosure, namely, the failure to disclose to the court, upon the application for leave, the proposal for, or the fact of, an impending review in September. That argument is not pursued this morning by Mr Wong on behalf of the respondent. What Mr Wong says is that CAD 371 is no more than a guideline and that it is for the Director to approve such schemes as he thinks fit and that he cannot be fettered then by some such guideline as he has produced.

13. The test to be applied for the granting of leave lies on a low threshold : it is whether the application raises a sensible or reasonable suggestion that on further investigation, illegality, impropriety or irrationality may be shown in the decision-making. Once leave has been given, the court will set aside that leave only in a very clear cut case. It is a power which must be sparingly exercised, and the question which I should ask is whether I am satisfied that the application for judicial review is one which has no reasonable prospect of success and will therefore fail.

14. Having, I hope, absorbed the arguments for the respondent, I remain of the view that there is sufficient to suggest that on further investigation, the decision or the process may be shown to be tainted by illegality, impropriety or irrationality. I emphasise the word "may". That is not to say that there is necessarily a strong case. All I do say is that I am not in a position to be satisfied that there is no prospect of success.

15. The respondent has filed evidence dealing seriatim with each of the examples which the applicant paraded to suggest that the approved scheme is less safe. I have been somewhat reluctant to engage in a detailed study at this stage, but still I examined the responses to see whether on their face they clearly and readily show some demonstrable fundamental flaw in the applicant's contentions. I do not think that they do. I do not think that it necessary, helpful or desirable to go through each complaint now and the answers to them. I shall deal with but one. For example, the applicant says that there is now no obligation on CPA to consider certain factors when constructing crew rosters. The respondent says in reply that there is no requirement for an operator to put forward a scheme which includes the particular requirement verbatim and that, in this particular instance, the carrier has in fact instructed its officers in relation to these considerations. But that is not to say that the requirement to take these factors into account, if it is a requirement - which is a matter perhaps for further and later debate - that it is not to say that the requirement is reflected in the scheme. It is said by the respondent that it is intended to include that item in the document later this year. That may be so, but that is not on its face an answer to the complaint that the present scheme has not that requirement included.

16. Examining these examples, albeit without the benefit of full analysis and argument, I cannot conclude on this application that there is obviously nothing in the suggestion of dilution of CAD 371, but I recognise that even so, that is hardly the end of the matter. Even if the applicant is correct in its contention that the approved scheme obviously provides less protection than that afforded by CAD 371, what then? The argument as I have indicated is two-fold : first, that there is implicit in the statutory duty to approve schemes an obligation to approve only those schemes which provide prudent levels of safety and that it can be assumed that collective expert opinion considers CAD 371 to spell out that level of safety, so that approval of something less constitutes a breach of statutory duty. I do not think that it can be said that this is unarguable. Secondly, the applicant says that it has been given a legitimate expectation that the approved scheme would be no less safe than CAD 371. The applicant would have to show not only that such an expectation has been raised by the respondent, and that it has been breached, but also that it gave some substantive right, for it is a substantive right which I understand the applicant to be claiming. Whether a legitimate expectation can give rise to substantive rights is doubtful, but not unarguable.

17. It is argued then that if the matter goes to a substantive hearing, there would have to be expert evidence which the court would have to evaluate to decide whether the approved scheme provides an adequate level of protection. I do not think that it is for the court to decide whether the approved scheme is or is not safe. I do not intend hereby to define the issues but at present and put loosely, it seems to me that one question is whether CAD 371 is intended as a counsel of perfection and not intended to set down minimum safety requirements so that departure from it cannot be said to be a breach of the statutory duty to approve safe schemes. And another question is whether it can be shown that the respondent has addressed the question, not of bare safety, but whether the approved scheme is as safe as CAD 371, and if so, whether it can readily be shown by the applicant that he, the respondent, came to a conclusion in that regard that no reasonable person in his position could reach. If there is established some promise giving rise to a legitimate expectation of substantive rights from which it is demonstrated that there has very obviously been a departure, then is it shown that there is no good reason for that departure? In short, in the light of those issues which I have canvassed, I do not think that this court will have to play the expert.

18. So I think that the applicant remains on the live side of the low threshold and that the leave which I have given should stand. In the circumstances and for the reasons I have provided, the application to set aside fails.

19. Counsel for the respondent has rightly drawn to my attention the provisions of Order 53, rule 5(3) of the Rules of the High Court. Clearly CPA are directly affected by this application and, in my judgment, the notice of motion must be served on them together with all the evidence thus far filed. I shall accordingly direct that the applicant shall serve on CPA Form 86A, the notice of motion, and the evidence filed thus far, a copy of the application to set aside, and a copy of this judgment.