HONG KONG AIRCREW OFFICERS ASSOCIATION v. DIRECTOR OF CIVIL AVIATION

HCAL51/99

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 51 OF 1999

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J U D G M E N T

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1. This is an application to amend the notice of application for leave to apply for judicial review. I do not propose to set out the background to the original application for that is adequately, for present purpose, summarized in the judgment which I delivered on the application to set aside leave. The grounds which are at the core of the application for judicial review as it presently stands are summarized by me on page 4 of that judgment.

2. There are two new grounds of attack now proposed. The first is that there was no material from which the Director of Civil Aviation ("the Director"), when he approved the scheme, could have entitled him to conclude that Cathay Pacific Airways Limited ("Cathay") had complied with the requirement under paragraph 6.3 of CAD 371 that consultation take place between Cathay and its crews regarding implementation of the proposed variations to CAD 371.

3. Paragraph 6.3 stipulates that :

"Operators requesting permanent incorporation into this Scheme of any significant variation from the standard provisions will be required to show that consultation has taken place between the operator and their crews regarding the implementation of the variations."

4. The point which the applicant now seeks to take is an entirely new point. It is not covered by anything hinted at in the application in respect of which leave has been given. As I shall shortly illustrate, the question of consultation was a live issue as between the applicant and Cathay as far back as 1998, and was even touched upon several times in the affirmations filed in relation to this application. The application for leave was filed on 5 May 1999, leave was granted on 17 May 1999 and an application to set aside was heard and determined on 22 May 1999.

5. The first that the intervening party, that is, Cathay, heard about this proposal to amend the notice of application for leave was on 13 October 1999, and it was brought to this court's attention under cover of a letter dated 21 October 1999. Much of the little time since available to the court to read the papers in this case at all has therefore had to be devoted to a reading which concentrated on the new proposed issues.

6. Amongst the salient factors which I note are these :

It is now some six months plus since the promulgation of the scheme which the applicant said is a scheme which was unlawfully approved. I must address the question whether a good reason is shown why this ground has not before been included in the application, and why it was not advanced in the application as filed. But I shall also ask whether there is any prejudice in granting this application to amend.

7. This is a public law matter, a point that has been emphasized by Mr Dykes on behalf of the applicant, and it is important that where it is suggested that the Director has not acted according to his duties, then such a suggestion should be aired and determined. On the other hand, there is sound reason why there must be finality and expedition in the prosecution of judicial review cases, no less so in this particular case where a working group under the control of the Director needs to get on with its job but is holding its hand pending the outcome of this review. That, too, is a matter of public importance.

8. In judicial review, issues should, as a general rule, be defined at the outset and where it has been open to a party to take a point at the outset and that party fails to do so, there must be shown good reason, in my judgment, for extending the parameters of a case after leave has been given, especially if the extension of the parameters is sought so close to the hearing of the substantive issues for which leave was originally given, and especially so, or the more so, where the grounds are quite new, in other words, where they raise quite a new case.

9. There is an increasing tendency for judicial review to become a 'free for all', with boundaries ever widening whenever new evidence is filed. Judicial review is not a vehicle for an infinite process of contestation. It is not an occasion where once the foot is in the door by reason of leave given on grounds originally filed, the court is then available, not merely for the purpose for which leave was extended but becomes an open house for whatever points counsel, upon closer examination or further thought, can extract from the evidence as it emerges. There must be good reason shown why a new case was not raised before, and why it should now be allowed to be raised, especially where the raising of the new point or a new case is likely to cause an adjournment.

10. Mr Dykes said that the case about inadequate consultation is now revealed by the papers disclosed in a recent affirmation filed on behalf of Cathay. In my judgment that these papers show their case for the first time is not demonstrated. In my opinion, the complaint has been open to the applicant for many months. It has been a complaint of the applicant for over a year that crew were not properly consulted by Cathay over the proposed scheme. Indeed, I see that in September 1998, in a newsletter issued by the applicant, their members were advised in relation to this very scheme which was then under discussion, and in relation to a consultation exercise which was then carried out by way of a questionnaire that-

"The questionnaire you have received is a deliberate attempt by flight ops. management to circumvent our association and to use this document as evidence of consultation. We believe that this falls far short of the level of consultation that is required and is yet a further demonstration of management's lack of commitment to working constructively with your representatives."

In the light of that document, it must follow that they already thought, and in the light of other documents, that they must subsequently have thought, that the Director could not possibly in any circumstances have been satisfied about adequate consultation. There is no suggestion in any of the papers to which my attention has been drawn, or in any of the submissions that have been advanced, that the applicant wrote to the Director complaining about the lack of consultation, or drawing to his attention his suggested duty under paragraph 6.3 of CAD 371.

11. The question of consultation was therefore not only an issue as between the applicant and Cathay as long ago as that, but the applicant also says that in July 1998, the respondent was aware of shortcomings in the consultation procedure and that they are aware of that from a meeting which they themselves attended. I refer to an affirmation by a Mr McIntosh sworn on 22 October, in which he said that-

"Opposition to the survey and its shortcomings is evidenced by a letter dated 2 July 1998 addressed to Captain Adams and a true copy of that letter is exhibited to the affirmation."

12. The affirmations in this particular case from the very start have referred to consultation, though never as an issue to be determined on the basis now suggested by the applicant.

13. In an affirmation sworn on 15 September 1999, Mr Adams, on behalf of the respondent, referred to the fact (at paragraph 62 of that affirmation) that-

"... [Cathay Pacific] advised that, in accordance with Section 6.3 of CAD 371, they had consulted both with representatives of the Applicant and also individually with all flight crew members regarding variations which had operational significance. There was nothing before the Director which suggested that the consultation exercise was conducted in a manner which was 'defective and misleading' as alleged at paragraph 17 of the Affidavit of Paul McIntosh filed on behalf of the Applicant...."

14. In Mr McIntosh's second affirmation filed on 6th October (at paragraph 13) I note he said that-

"... the lack of consultation is not a ground for an application for judicial review except to the extent that [Cathay Pacific] failed to demonstrate how the provisions did not interact sensibly with that type of operation in their consultation."

15. So this question of consultation was one that could not be other than one which was in the mind of the applicant for many months now, going back as far as August 1998.

16. It is said by Mr Dykes that the respondent himself and Cathay have raised the issue of consultation in the affirmations which they have filed when they need not have done. I do not agree. The raising of consultation by the respondent and by Cathay was part of the answer to the applicant's case. The case against the respondent is that the scheme approved does not meet the requirements and the minimum safety standards set down by CAD 371, and the Director had to answer that allegation by saying that it does, and that the view he takes is a view which could reasonably be held by him, given the opinions he has taken from a variety of sources. And he has recited the fact that the applicant, or its representatives, were also consulted, or so he was informed. It is the Director's case that these decisions are decisions only for him to take, and it is not for this court lightly to intervene, especially when the Director has had the advantage of expert opinion and the views of others and suggested consultation exercises.

17. I am satisfied that the grant of this application would necessitate an adjournment. The Director would have to show what information was before him as to consultation; what view he took about it; and the merits of the new point now raised would have to be considered by those advising the respondent and Cathay before framing a response to this new point.

18. Now what are the consequences of an adjournment if one were to be granted? I am told that the Director's working group, which is reviewing the operation of the scheme, has suspended its deliberations pending the outcome of this hearing. I did wonder whether that was necessary, but it has been explained to me that it is difficult for the Director and that working group to proceed effectively, quite apart from being a waste of resources, when there is a challenge in the court directed at his understanding of CAD 371, and his duties under it.

19. There has not been shown to me good reason for not raising this ground before. It is not in the circumstances strictly necessary for me to address the considerations raised by section 21K of the High Court Ordinance, but it will be clear from the terms of this ruling that I also take the view that permission to make these amendments would have consequences in this case which are not acceptable, quite apart from the question of principle that cases of this kind must be pursued expeditiously.

20. The application to amend to plead the consultation point is therefore refused.

21. I turn to the second point raised. It is suggested in an amendment proposed - paragraph 15 of the amended grounds - that paragraph 6.1 of CAD 371 did not in the circumstances permit the Director to allow any variations at all. This is quite different, again, from the original case, which is that the variations had to be no less safe than those in CAD 371, and that they were in fact less safe. This, again, was a point of interpretation of CAD 371 which was always available to the applicant. I am told that there is a history behind paragraph 6.1 in this particular regard which would have to be placed before the court in order for it to be in a position to determine it. That would require the filing of evidence and, in turn, that would require an adjournment. It is a point very recently raised, within the last few days, and counsel would have to consult their clients about it. I am satisfied that it would occasion an adjournment. No adequate reason for the lateness of this change has been placed before me, and likewise the application is refused.

22. It is said that there is no objection to the inclusion of paragraphs 3 to paragraph 7 of the application to amend, or so Mr Wong on behalf of the Director tells me, but I think, with respect, that that is an artificial approach, for those paragraphs mean little on their own.

23. Accordingly, the application to amend is rejected.