Axis Intl v Civil Aviation Auth

• Jurisdiction: Cayman Islands
• Court: Court of Appeal (Cayman Islands)
• Judge: (Chadwick, P., Mottley and Campbell, JJ.A.),(Smellie, C.J.)
• Judgment Date: 26 March 2014
• Date: 26 March 2014

AXIS INTERNATIONAL LIMITED

and

CIVIL AVIATION AUTHORITY and CAYMAN ISLANDS HELICOPTERS LIMITED

(Smellie, C.J.)

(Chadwick, P., Mottley and Campbell, JJ.A.)

Grand Court, Civil Division

Court of Appeal

Administrative Law-judicial review-grounds for review-expert body may be reviewed if fails to direct itself properly in law; fails to call attention to relevant considerations; places inappropriate weight on relevant factors or considers irrelevant factors; or if makes decision so outrageously defiant of logic or accepted moral standards that no sensible person could reach it-court to consider decision closely, but to avoid acting as appeal court, determining weight for relevant factors or substituting its own decision for that of expert body

Administrative Law-judicial review-human rights-inappropriate for court to apply heightened scrutiny test to protect rights to life and property under 2009 Constitution, ss. 2 and 15 if decision made by expert body subject to statutory regime requiring consideration of safety-more intense level of judicial review not to be used as excuse to interfere with merits of decision especially if involves complex policy questions outside court”s expertise

Civil Aviation-certification of heliport-exemption from requirements-Governor entitled to delegate power to grant exemptions under Air Navigation (Overseas Territories) Order 2007, art. 146-Civil Aviation Authority entitled to grant exemptions to Overseas Territories Aviation Requirements (provided requirement taken into account and exemption not irrational)-may grant exemption from mandatory regulation containing word ‘shall’

Held, finding that the decision to issue the certificate was irrational:

The strength of judicial review

(1) The court was only entitled to interfere with the CAACI”s decision if no reasonable authority could have come to that decision and was not entitled to substitute its judgment merely because it would have come to a different decision itself. The CAACI, as an expert body and the primary decision-maker, was in a better position than the court to evaluate policy matters (including whether a certain decision was compatible with the policy and objectives of the relevant law) and matters falling within its area of expertise; the court should therefore be hesitant to interfere with its decision or to perform an appellate role. The CAACI”s discretion was not, however, unfettered-it must direct itself properly in law, must call its attention to any relevant considerations (and place reasonable weight on these), ignore any irrelevant considerations, and not make any decision so outrageous in its defiance of logic or accepted moral standards that no sensible person could have arrived at it. This required close consideration of the decision but did not allow the court to substitute its own decision or itself determine how much weight should be placed on any relevant considerations (paras. 90–96; paras. 101–102; para. 220).

(2) It was not appropriate to apply a heightened scrutiny test. The 2009 Constitution had not applied when the decision to issue the certificate had been made, but the Constitution had not created the rights-having instead simply recognized them-and the court was still entitled to consider them when determining whether the decision was reasonable. The CAACI, however, was composed of a panel of experts and was subject to a statutory regime which required them to consider the safety of the decision (both in regard to health and property). There was therefore a sufficient mechanism to address the human rights concerns and a more intense level of judicial review could not be used as an excuse for the court to interfere with the merits of the decision. Further, the decision as to

whether the helipad was safe was one which required expert knowledge of helicopters and aeronautics and, as the court should show restraint when addressing complex policy or factual issues outside its expertise, it should not apply a stricter test (paras. 215–222).

Expert evidence

(3) The court would have regard to the expert evidence, provided that it was not disputed, to educate itself on complicated and technical matters. The plaintiff”s allegations involved several highly technical challenges to the safety of CIHL”s manual and the technical standards in the AN(OT)O and the OTARs. It was therefore legitimate and helpful for these pleadings-and their responses-to be supported by expert evidence-provided that this was restricted to a review of what the decision involved and whether it was manifestly irrational. Expert evidence would not, however, be admitted to contest the substantive merits of the decision. The court would not engage in a dispute between two expert opinions and an expert opinion could not justify the substitution of the CAACI”s determination by that of another expert or of the court (paras. 108–111; paras. 116–118).

Construction of the OTARs, OTACs and AN(OT)O

(4) The CAACI had no discretion to disapply or disregard the requirements in the OTARs. The discretion conferred by the AN(OT)O and the OTARs must be interpreted by the court in line with the policy and objectives of the legislative scheme to ensure and promote the public interest in the safety of civil aviation. Article 152-which could not be delegated under art. 153-required the Governor to publish the OTARs and that the CAACI take them into account when deciding whether to issue a certificate. Article 146 could not have been intended to be used to disregard requirements which only the Governor could impose and which had to be considered and so was presumed to fall under the principle that a delegated authority could not be re-delegated. Further, although the OTARs and OTACs described themselves as not being ‘law’-due to the need for the Governor to change them (e.g. when the ICAO made new provisions)-this did not mean that they were not enforceable requirements (paras. 131–134; paras. 170–175; paras. 189–190).

(5) The CAACI was only entitled to depart from the OTARs if it were satisfied that the issues of the operator”s competence or the safety of the heliport itself had been adjudicated in some other way. The phrase ‘have regard to’ usually meant that the party was merely required to give conscious consideration to the factors and did not prescribe the weight it was required to give to that regulation. As the legislative background for the AN(OT)O and the OTARs was one of ensuring public safety, however, the CAACI could not have been given a discretion that was so broad as to allow it to assign whatever weight it thought fit, even if this were no weight at all. Where the OTAR stated that a particular regulation was necessary, the CAACI would only be able to depart from it if it were satisfied that another equivalent standard of safety would be applied.

Although the CAACI was appointed as an expert body capable of determining whether an aerodrome was safe, the OTARs represented the background of the wealth of experience, knowledge and expertise which formed the Chicago Convention and the ICAO. Accordingly, the CAACI was not entitled to apply alternative standards merely because it deemed them equivalent to those embodied in the OTARs and was only entitled to depart from the OTARs in the circumstances prescribed by the OTACs (paras. 147–152; para. 159; paras. 178–182; para. 194).

The adequacy of the manual and the study

(6) The decision to certify the airport was irrational. There were a number of areas in which the decision was not in compliance with the OTARs and, although none was, by itself, sufficient to make the decision irrational, they together showed that it was irrational. Although not all of these issues had been included in the original notice of motion, the court was still entitled to consider them as they could not have been discovered until the final affidavits were filed and, as they all focused on the reasonableness of the decision rather than its merits, they did not lead to any ‘litigation creep.’ The issues included (i) the failure to establish and mark the position of the FATO in breach of OTAR 139, at 139.I.157(a). As the FATO had been moved in the revised manual, it no longer aligned with the helipad and should therefore have been marked, even though it would only be used in visual conditions by a pilot who was familiar with the site; (ii) the extension of the safety area over the sea in violation of OTAR 139, at 139.I.27. There was no requirement that the safety area be under CIHL”s control (provided that it was clear of obstacles), but it was irrational to find that a safety area which partly extended over the sea was fit for the purpose of allowing the pilot to make an emergency landing in case of engine failure; and (iii) the fact that the safety area was not continuous with the surface of the FATO in violation of OTAR 139, at 139.I.27(j). This requirement meant that the surface area must ‘[extend] in space without a break’ from the FATO and although it was not required to be solid, this was intended to cover situations where, e.g., the safety area consisted of water. The distance between the FATO and the ironshore meant that the safety area was not, therefore, continuous. Further, it was unlikely that the helicopter could make a safe emergency landing on the ironshore and it was therefore irrational to find that it was suitable as a safety area (para. 231; paras. 238–240; paras. 249–252; paras. 256–259; paras. 270–275; paras. 358–360).

(7) Further issues included (i) the penetration of the secondary safety area on two sides in violation of OTAR 139, at 139.I.27(d). There was no definitive answer to how many sides a circular secondary safety area had and, as this had both practical and legal implications, the court was in the best position to determine the proper construction. The definition of a side as meaning a 90° segment allowed for fewer penetrations of the...