Cathay Pacific Airways v. Flight Attendants Union

HCAL 19/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 19 OF 2005

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BETWEEN

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Before : Hon Hartmann J in Court

Dates of Hearing : 28 and 29 July 2005

Date of Handing Down Judgment : 25 August 2005

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J U D G M E N T

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Introduction

1.Passenger aircraft today are capable of attaining great distances, crossing multiple time zones in their flight.  But, while aviation technology advances, human physiology does not.  It is recognised, especially in respect of long haul routes, that aircraft crews face the constant challenge of fatigue.  This is more than mere tiredness.  As it relates to aircraft crews, fatigue is invariably the result of having to endure prolonged periods of active performance or vigilance when the body’s circadian rhythms are disrupted.  Circadian rhythms dictate patterns of wakefulness and sleep and do not adjust rapidly to change.  The effect of the disruption is what the layman calls jet lag.

2.To avoid fatigue in the crew of Hong Kong registered passenger aircraft, the Director-General of Civil Aviation is obliged by law to ensure that the operators of passenger aircraft establish and enforce schemes to ensure that adequate periods of rest are given to aircraft crews.  These periods of rest are both between flights and, when necessary, during flights.

3.Regulated periods of rest during flights only apply in practice to what are called ‘ultra long range operations’.  These have been defined by the Director-General (in part) as flights —

“… involving a time difference of 6 hours or more between the places where the duty period began and ended.”

4.At this time, Cathay Pacific Airways, the interested party, is the only operator of Hong Kong registered passenger aircraft which flies ultra long range operations : flights, for example, to and from New York and the West Coast of the United States as well as flights to and from Western Europe.  Other operators of Hong Kong registered passenger aircraft fly only what are called regional flights.

5.On 7 December 2004, the Director-General approved a scheme proposed by Cathay Pacific to regulate the rest periods of aircraft crew.  It is known as the Cathay Pacific Airways Flight Time Limitations Scheme.  The scheme – in part – regulated the in-flight rest periods due to cabin crew on ultra long haul operations.  The scheme having been approved, it was incorporated into the operation manuals of Cathay Pacific and became effective from 1 January 2005.

6.It is the decision of the Director-General to approve the scheme which is the subject of this application for judicial review.

7.In his letter of approval dated 7 December 2004, the Director-General said that the scheme was approved ‘in accordance with’ the Air Navigation (Hong Kong) Order 1995, an instrument to which I shall refer later, and a document described in the letter simply as ‘CAD371’.

8.The letters ‘CAD’ stand for the Civil Aviation Department.  CAD371 is entitled : ‘The avoidance of fatigue in aircrews’.  By way of a sub-heading, the following is stated on the cover of the document :

“This document contains standard provisions on which Hong Kong operators’ Approved Flight Time Limitation Schemes are to be based from 1 March 1999.”  [my emphasis]

9.For reasons to which I shall refer later, I am satisfied that CAD371 is properly described as a policy document.  It advises operators of what – as a matter of policy – the Director-General considers will, in the great majority of cases, be both the essential and the desirable elements of any scheme to be approved.

10.The body applying for review of the Director-General’s decision is the Cathay Pacific Airways Flight Attendants Union which is constituted to represent the rights and interests of flight attendants; that is, cabin crew, employed by Cathay Pacific.

11.It is the applicant’s case that the Director-General, although he purported to approve the scheme ‘in accordance with’ CAD371, either failed to adhere to the provisions contained in that document or wrongly applied them.  Expressed another way – more accurately, I believe – the Director-General either ignored his own policy contained in CAD371 or failed properly to understand it, a failure as profound as ignoring it.

12.The applicant contends that the failure of the Director-General either to adhere to his own policy or to correctly interpret it has resulted in cabin crew assigned to ultra long haul operations being denied a significant amount of in-flight rest, a denial that not only offends CAD371, diminishing the rights of flight attendants in their workplace, but may, it is said, impair their operational efficiency.

13.The law that supports the applicant’s challenge is now well settled.  In E.C. Gransden and Co. Ltd v. The Secretary of State for the Environment [1986] JPL 519, Woolf J (as he then was) said that the policy of a department concerning the obligations of a planning inspector was a matter to which the decision-maker had to have regard and that :

“… In order to give effect to that approach it [is] essential that the policy [is] properly understood by the determining body.  If the body making the decision [fails] properly to understand the policy then the decision would be as defective as it would be if no regard had been paid to the policy.”

14.In R. v. Ministry of Defence, ex p Walker [1999] 1 WLR 1209, at 1216, Auld LJ echoed this when he said :

“Misinterpretation by the ministry of its own policy may render its decision defective in the same way as would ignoring it.”

15.The legal basis for this, while it may have one source in the principle of legitimate expectation, flows as much from what Sedley J (as he then was) described – in R. v. Secretary of State for the Home Department, ex parte Urmaza (11 July 1996, unreported) – as a coherent line of authority :

“… to the broad effect that a policy means what it says, and that its meaning can ordinarily be established by the court and the decision-maker be held to it.”

As he later observed :

“… the meaning of the policy cannot be a matter for the Secretary of State to decide subject only to the broad limits of rationality.  If, as is nowadays almost always the case, it is couched in ordinary English, it is not open to the Secretary of State to give it other than its plain and ordinary meaning ...”

16.In light of this, in my judgment, the essential issues for determination in this matter may be reduced to two questions :

(i)	What was the policy of the Director-General at the time his decision was made?
(ii)	In reaching his decision, did he ignore, misinterpret or in any way wrongly apply that policy?

17.On the basis that these two questions are answered in its favour, the applicant seeks the following relief :

(i)	a declaration that the decision of the Director-General was wrong in law;
(ii)	an order of certiorari to quash it, remitting it to the Director-General for reconsideration, and
(iii)	an order of mandamus directing the Director-General to ‘enforce the requirements of CAD371’ in approving any new scheme.

A comparison of in-flight periods of rest

18.So that the applicant’s challenge may be understood in context, it is necessary to compare and contrast the fundamental features of the Cathay Pacific scheme approved by the Director-General with what the applicant contends is the scheme contained within CAD371.

19.It is to be noted that, to enable flight crews and cabin crews to take in-flight rest, Cathay Pacific has provided bunks.  This judgment is concerned only with in-flight bunk rest not with any less satisfactory form.

20.It is further to be noted that I have based my comparisons on the assumption that in all instances the flight attendants are ‘acclimatised’, a term of art which, as I read it, is to the effect that they are departing from ‘home base’, having received their full allocation of between-flight rest.

21.As to the two schemes, they both take as a base measure of calculation what is called a ‘flight duty period’.  This has been defined by the Director-General but, in outline, is that period of duty which commences when a flight attendant reports for duty, normally an hour or so before take-off, and ends when the engines are stopped at the airport of destination.

22.The approved Cathay Pacific scheme, in so far it relates to in-flight bunk rest for flight attendants, is relatively straightforward.  It may be summarised as follows :

(i)	If a flight duty period does not exceed 14 hours, no specific period of in-flight rest is mandated.  Any rest taken will be at the discretion of the In-Flight Services Manager.
(ii)	If, however, a flight duty period does exceed 14 hours then in-flight rest must be taken in accordance with the following table :

“	More than 14 hrs and up to 15 hrs	3 hrs
	More than 15 hrs and up to 16 hrs	3 hrs
	More than 16 hrs and up to 17 hrs	3.5 hrs
	More than 17 hrs and up to 18 hrs	4 hrs
	More than 18 hrs and up to 19 hrs	4.5 hrs”

(iii)	Whatever the circumstances, the absolute maximum flight duty period for a flight attendant is 19 hours.  There may be no extension of duty beyond this limit.
(iv)	In-flight rest, however, need not be continuous.  It can be broken up into different periods of rest.

23.The scheme contained in CAD371, as it is interpreted by the applicant, is not so straightforward.  I emphasise that there has been a fundamental dispute between the parties as to the true interpretation.  But, for present purposes, the interpretation of the applicant, may, I believe, be summarised as follows :

(i)

The maximum flight duty period that may be worked by a flight attendant without mandated in-flight rest varies according to the time of departure.  To calculate this period, reference is made to a table – ‘Table A’ – which is set out in s.11.1 of CAD371.  This table concerns flight crew but is made applicable to cabin crew by adding one hour.  On a ‘one sector’ flight – a ‘sector’ being the time between an aircraft leaving its parking position at one airport and stopping in its parking position at the next – the table is to the following effect :

“Local time of start	Flight duty period
0700-0759	13
0800-1259	14
1300-1759	13
1800-2159	12
2200-0659	11 ”

(ii)	It will be seen from Table A that on a one sector flight the maximum flight duty period that may be worked by flight attendants – without mandated rest – is 15 hours.  This applies to a flight that takes off between 0800-1259 hours, one hour, as I have said, being added to the 14 stated to make the table applicable to flight attendants.
(iii)	Flight attendants on ultra long haul flights are permitted to extend their flight duty period.  If that happens, however, then for every one hour of extension above the maximum permitted by Table A, two hours of in-flight rest is mandated.  Thus :
	(a)	Assuming a flight departs at 2200 hours, the maximum flight duty period that may be worked without rest by flight attendants would be 12 hours.
	(b)	If, however, because of the length of the flight, the flight duty period must be extended by 4 hours to 16 hours then provision must be made for the flight attendants to each have 8 hours in-flight rest.
(iv)	As with the Cathay Pacific scheme, the absolute maximum flight duty period for a flight attendant is 19 hours.  There may be no extension of duty beyond this limit.
(v)	Again, as with the Cathay Pacific scheme, in-flight rest need not be continuous.

24.It will be seen that the scheme contained in CAD371 – as, of course, that document is interpreted by the applicant – allows materially more generous periods of in-flight rest on ultra long haul flights than the approved Cathay Pacific scheme.  Taking the example I have just given in para.23(iii)(a) and (b), when the required flight duty period is 16 hours, the CAD371 scheme, it is said, mandates 8 hours in-flight rest while the Cathay Pacific scheme mandates only 3 hours, a difference of 5 hours.

CAD371

25.As I have said earlier, I am satisfied that CAD371 is correctly described as a policy document.  I have come to that conclusion by the following route.

26.The Hong Kong Government, and specifically the Director-General, is under a constitutional obligation to maintain Hong Kong’s status as a centre of civil aviation.  In this regard, section 4 of the Basic Law directs that the Government of Hong Kong shall ‘provide conditions and take measures for the maintenance of the status of Hong Kong as a centre of international and regional aviation’ : see art.128.  The section further directs that Hong Kong shall continue ‘the previous system of civil aviation management in Hong Kong’ and shall maintain its own aircraft register : see art.129.

27.Domestic legislation governing Hong Kong’s civil aviation industry is to be found in the Civil Aviation Ordinance, Cap.448.  In terms of s.2A of the Ordinance, the Chief Executive in Council may by order make provisions for the regulation of the industry.

28.Prior to the change of sovereignty, the Air Navigation (Hong Kong) Order 1995 (‘the Air Navigation Order’) governed matters going to the registration of aircraft in Hong Kong, the licensing of aerodromes and air crew and the maintenance generally of an efficient and safe aviation industry.

29.When the change of sovereignty took place, in terms of s.15 of the Civil Aviation Ordinance, specific provision was made for the continuation in force of the Air Navigation Order, it being deemed for all purposes to have been made by the Chief Executive in Council in terms of the Ordinance.  In short, the Air Navigation Order is to be read as an Order in Council.

30.As to the nature of Orders in Council, the Chief Executive is given the power under the Basic Law, as the supreme executive officer of the Special Administrative Region, to issue orders which concern powers and authorities vested in him : see art.48(4).  Orders in Council are executive orders made by him with the assistance of the Executive Council : see art.54.  Orders in Council are therefore a constitutionally recognised means by which the Chief Executive may discharge his executive powers.

31.In terms of art.98 of the Air Navigation Order, any reference in the Order to the Chief Executive shall include any person authorised by him to exercise his functions.  The delegation of executive functions in this manner is a time-honoured mechanism to better ensure good administration.  It is accepted that at all material times the respondent, the Director-General of Civil Aviation, was an ‘authorised person’ in terms of the Air Navigation Order, lawfully empowered, therefore, to exercise the functions of the Chief Executive under the Order, those functions being executive in nature.

32.Part VI of the Air Navigation Order looks to the prevention of fatigue in the crew members of Hong Kong registered aircraft.  Crew members are stated to include both flight crew and cabin crew.  In this regard, art.98(4) of the Order states that —

“Every person employed or engaged in an aircraft in flight on the business of the aircraft shall be deemed to be a member of the crew thereof.”

33.As to the responsibility of the operator of a Hong Kong registered aircraft to prevent fatigue, art.54(1) of the Order directs that —

“The operator of an aircraft … 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.”  [my emphasis]

34.The operator of an aircraft is obliged, therefore, to establish a scheme which governs the flight times of all crew members, including cabin crew, and to submit that scheme to the Director-General (acting under delegated authority) for approval.  Importantly, the Director-General, in considering whether to grant approval, may impose such conditions as he thinks fit.  It is therefore for the Director-General, as a matter of executive policy, to determine what conditions should or should not be imposed to best ensure that the purpose of art.54 – the prevention of air crew fatigue – is achieved.  To put it plainly, it is his responsibility, albeit under delegated authority, to devise an appropriate policy, to administer that policy and, if he thinks it is necessary, to change that policy.

35.The executive power given to the Director-General is a discretionary power.  It must be exercised flexibly.  How else, in an industry marked by technological advances and evolving commercial imperatives, is the Director-General to meet the constitutional obligations imposed on him (through the Chief Executive) to maintain Hong Kong’s status as a centre of civil aviation?

36.While it can sometimes be difficult to ascertain where delegated legislation begins and ends, I am satisfied that CAD371 is not, nor can it be deemed to be, legislation of any kind.  It may be said that CAD371 contains administrative rules but, if so, they are not rules of law.  The fact that actions of the Director-General in respect of CAD371 may, for the reasons given earlier in this judgment, be subject to judicial review goes no way to elevating CAD371 into a document of legal effect.  CAD371 may be ignored entirely by an operator without subjecting the operator to any legal liability.  All it means is that the operator is almost bound to be unsuccessful in seeking the Director-General’s approval for any scheme proposed by him pursuant to art.54(1) of the Air Navigation Order.

37.Nor, in my view, although the matter was never specifically raised in argument, can it be said that the Director-General, having devised his policy and stated it in a public document, is thereby in some way estopped from changing it.  If in good faith the Director-General is of the view that his policy must be changed then he is duty beyond to make that change.  As Lawton LJ said in Laker Airways Ltd v. Department of Trade [1977] 1 QB643, at 728F : “Estoppel cannot be allowed to hinder the formation of government policy”.

38.As to the manner in which the Director-General may change his policy, it seems to me that he may do so in any rational manner that he wishes.  He devised the policy.  It is his policy.  If in good faith, for purposes of good governance, he is of the view that it must be changed then he may change it.  While obviously the change must be made known to those who may be affected by it, I do not see that he is constrained by any particular formality in affecting change.  Nor do I see that he is obliged to obtain any form of consensus on the part of those who may be affected.  Consensus may simply not be possible.  In the present case, the Director-General formed a working group to advise him on the problem of in-flight rest on ultra long haul flights.  The working group first met in January1997.  By February 2001, however, in respect of cabin crew rest, no consensus had been reached.

39.The Director-General may, of course, be bound to adhere to particular formalities, or to an attempt to obtain consensus, if he has given an undertaking to do so and has no good cause to avoid that undertaking.  In respect of limited matters of that kind, the authorities indicate that the principle of estoppel may apply.  In the present case, however, nothing has been shown to me to indicate the giving of any such undertaking by the Director-General.

What was the Director-General’s policy when CAD371 was first published?

40.CAD371, as published, came into full effect on 1 March 1999.  From the beginning, however, in respect of in-flight rest on long haul flights for cabin crew (when bunks were available for the least 50% of the crew) there were conflicting interpretations of the document.

41.In a letter to the Civil Aviation Department dated 3 March 1999, the Hong Kong Aircrew Officers Association spoke of the provisions being unclear and leading to different interpretations.

42.On 24 March 1999, in a letter to the applicant, the Chief of Flight Standards in the Civil Aviation Department, writing on behalf of the Director-General, said that the applicant may have been labouring under a ‘misunderstanding’ as to the true meaning and intent of the relevant provisions in CAD371.  He then spelt out what the Director-General intended in CAD371.  “The intent”, he said, “is now as follows” —

“On ultra long haul operations where bunks are provided for 50% of crewmembers, the allowable flight duty period will be 19 hours for cabin attendants.  Duty and rest are to be kept in reasonable balance, ie at the end of the flight duty period, the allocated time on duty, and for rest, should be approximately the same, cabin attendant v cabin attendant, operational conditions permitting.  This gives the responsibility for cabin crew management ‘on-the-day’ to the Chief Purser, as should be the case.”

The letter continued :

“To assist the Chief Purser, the operator intends to provide a table showing the minimum rest to be allocated to cabin attendants, depending on the length of flight duty period, which we will vet.  This will cater for possible shortfalls arising in such cases as passenger sickness, crew injury, unserviceable bunks, etc.  I would also like to stress that, in the light of our revised philosophy towards the rostering of ultra long haul flights, Chief Pursers should not use Table A as a basis for calculating minimum inflight rest – this no longer applies.”

The letter concluded :

“We will tighten the wording of CAD 371 to remove any remaining ambiguity as to cabin attendant rest in due course.”

43.As I read the letter of 24 March 1999, it was not intended to change the Director-General’s policy.  It was intended rather to explain how, in the Director-General’s view, CAD371 should be read.  It was intended to clarify how the Director-General believed the policy contained within the document should be understood.

44.That the relevant provisions of CAD371 were not entirely clear was acknowledged in the concluding remarks of the letter with the stated intention of tightening the wording of the document.  I confess, however, that, in my judgment, the Director-General’s interpretation of his policy, as it stood at that time and was stated in CAD371, was, to put it bluntly, an attempt to make ‘A’ mean ‘B’.

45.Leaving aside the obvious need to employ a good deal of technical language, CAD371, as published, is couched in ordinary English.   That is not to say that, in respect of in-flight rest for cabin crew on ultra long haul flights, it makes for easy comprehension.  It can be ambiguous and is often circuitous.  But, read step-by-step, I am satisfied that it can only logically lead to the meaning at all times given to it by the applicant.

46.There was no doubt, as the Director-General saw it, good reason to move on from Table A which he saw as essentially a ‘rule of thumb’ table of some antiquity now rendered obsolete by advances in aviation technology.  I shall return to this issue later in this judgment.  At that time, however, it seems to me that the Director-General, in the letter of 24 March 1999, attempted to squeeze a meaning into the language of CAD371which the document, as it was published, did not hold.  The advocated interpretation, in my view, involved a material degree of deconstruction of the relevant provisions and the re-building of them according to a different scheme of architecture.  That way, yes, I have been able to perceive the interpretation advocated.  But the English language is sufficiently complex that, when its weight and balance is shifted, it is capable of throwing up a range of meanings.  But if the ordinary meaning of the document can be ascertained without the need for an exercise of the kind I have described then that is the meaning the document must be given.

47.In R. v. Secretary of State for the Home Department, ex parte Lancashire Police Authority [1992] COD 161, Webster J, in holding that the Secretary of State should take into account a certain policy circular, said :

“… though in this case it was necessary to construe the circular, it was not necessary or proper to construe it in the way in which an Act of Parliament or a statutory instrument would be construed, by application of fine legal rules of construction: it was necessary to construe it simply in the way in which an educated person, acquainted with the factual context, would construe it, by giving to it common sense meaning and without resort to any such legal rules.”

48.In addition, to cite the words of Sedley J again (para.15) :

“… the meaning of the policy cannot be a matter for the Secretary of State to decide subject only to the broad limits of rationality.  If, as is nowadays almost always the case, it is couched in ordinary English, it is not open to the Secretary of State to give it other than its plain and ordinary meaning ...”

49.I am satisfied that CAD371, as published, had the meaning and effect that has been contended by the applicant.  That was its plain and ordinary meaning.  But that, however, does not end the matter.  I say that because the Director-General’s decision which is challenged – his decision of 7 December 2004 – approved a scheme which was different from the one contemplated in his letter of 24 March 1999.  Read in context, the decision of 7 December 2004 suggests that during the intervening five years there must have been a change in the Director-General’s policy.

50.The essential question, therefore, is the first question that I posed in para.16 of this judgment : ‘What was the policy of the Director-General at the time his decision was made?

Was there any change to the policy?

51.In January 1997, the ‘standard provisions’ regulating aircrew rest were contained in a document known as ‘Appendix B’, this being an appendix to a document known as the Air Operator’s Certificates Requirements.  Appendix B contained Table A which was carried over into CAD371.

52.The Director-General was concerned that the provisions in Appendix B may no longer be fully relevant, especially with the advent of extensive ultra long haul flights.  He therefore formed a working group for the purpose of re-assessing the viability of the Appendix B provisions.

53.The working group – known as the ‘Flight and Duty Time Limitations Working Group’ – had its first meeting on 9 January 1997.  The terms of reference of the working group were stated to be :

“To review the Standard Provisions set out in Appendix B to the Fourth Edition of the Air Operator’s Certificates Requirements Document and to make recommendations and offer advice to the Director-General regarding the revision and amendment of these Provisions.  A recommendation will be made to the Director-General when there is unanimity of opinion within the working group.  In other cases advice will be offered to the Director-General.”

The minutes record the chairman of the working group saying that “it would be entirely up to the Director-General whether to take the working group’s recommendations or advice”.

54.It appears that the applicant was not initially a member of the working group but was brought into it later.

55.The last meeting of the working group took place on 27 February 2001.  The issue of appropriate periods of in-flight rest for cabin crew on ultra long haul flights had always been contentious and remained contentious.  Different views continued to be expressed at the meeting.  The chairman reminded the members that it was the Director-General’s ‘responsibility’, and his ‘right’, to decide whether there should be any change to the policy.  He emphasised the importance of avoiding further delay in either advising him or making recommendations to him.  The working group, however, was still not able to reach consensus.

56.What then happened?  In my view, it is apparent that after this meeting the Director-General decided that, with no advice or recommendation forthcoming from the working group, he would have to make a decision on the issue himself.

57.In a letter dated 6 April 2001 the applicant was advised that the Director had made a decision.  The letter, written on the official letterhead of the Department of Civil Aviation and signed by an officer of the Department on behalf of the Director-General, said the following :

“The issue of ‘Cabin crew bunk rest’ has been discussed at length for more than six months, but there is still no consensus reached amongst the members of the Flight Time Limitation Working Group.”

The letter continued :

“In respect of in-flight rest for Cabin Crew on ultra-long haul flights, taking into account the views expressed by the Flight Time Limitation Working Group members and in accordance with the Terms of Reference of the working group, the Director-General has considered the case carefully and decided that the best practice in the airline industry/regulatory authority should be adopted.  The Chairman of the Flight Time Limitation Working Group will therefore issue the Director-General’s decision as a post meeting note to the minutes of the 19^th Flight Time Limitation Working Group Meeting held on 27 February 2001.”

58.The portion of that letter underlined by the author of the letter is plain in its meaning.  It says that the Director-General has himself made a decision on the issue and that his decision will be made known by way of a ‘post meeting note’ which will be added to the minutes of the last working group meeting.

59.The author of the letter saw fit to add some placatory sentiments – they are no more than that – by saying :

“I am sure you will agree that some form of guidelines for in-flight rest for the cabin crew will be beneficial to the safe operation of ultra long haul flights.  The time is now ripe for the Second Edition of the CAD371 to be published with such amendments.”

60.The letter concluded with the following statement :

“Finally, as a further step to enhance flight safety, the Civil Aviation Department has commissioned the German Institute for Aerospace Medicine, in conjunction with the European Committee for Aircrew Scheduling and Safety (ECASS), to conduct studies on the avoidance of fatigue in aircrew, and specifically for cabin crew … Depending on the outcome of the study and the experience gained by ultra long haul operators, the criteria in CAD371 Second Edition would be reviewed if necessary.”

61.The draft minutes, together with a ‘final draft of CAD371 (second edition)’, were circulated to members under cover of a letter dated 10 April 2001, the letter being signed on behalf of the Director-General.  The letter said :

“Members should note the Director-General’s decision regarding bunk rest for cabin crew and ultra long range flights, which is a Post Meeting action recorded at the conclusion of the enclosed Minutes.”  [my emphasis]

62.Those to whom the letter and the draft minutes were circulated included representatives of the applicant, the Hong Kong Airline Pilots Association and Cathay Pacific as well as a number of officers in the Civil Aviation Department itself.  The minutes themselves contained the following endorsement :

“Note : Post Meeting Decision by the Director-General.”  [my emphasis]

The body of the endorsement was to the following effect :

“As no consensus was reached amongst working group members on the subject of cabin crew rest on ultra long range flights, in accordance with the Terms of Reference for the working group, as stated in paragraph 1.2.1 of the first meeting held on 9 January 1997, a decision from the Director-General was sought.  Taking into account of the views expressed by working group members, the Director-General has decided that the best practice in the airline industry/regulatory authorities should be adopted.”  [my emphasis]

The effect of the Director-General’s decision was then stated :

“As a result, the maximum flight duty period shall be 19 hours provided all cabin crew boarded receive the following minimum bunk rest:-

“	Flight Duty Period	Minimum bunk Rest
	14 hours and up to 16 hours	3 hrs
	More than 16 hrs and up to 17 hrs	3 hrs
	More than 17 hrs and up to 18 hrs	4 hrs
	More than 18 hrs and up to 19 hrs	4.5 hrs”

[my emphasis]

The endorsement concluded by saying that, as evidence of the Department’s commitment to flight safety —

“… it has commissioned the German Institute for Aviation Medicine, in conjunction with the European Committee for Aircrew Safety and Scheduling (ECASS), to conduct studies for the avoidance of fatigue for aircrew, and specifically for cabin crew.”

63.The applicant appears not to have recognised or accepted that the post minute endorsement – read in context with other material – constituted a decision by the Director-General to change his policy.  In a letter dated 9 May 2001 addressed to the Department of Civil Aviation, the applicant said that it did not agree with —

“… some issues relating to cabin crew inflight rest requirements and the post meeting notes issued by the Director General Civil Aviation Department and we shall seek other avenues to raise these issues.”  [my emphasis]

64.But they were not, of course, simply notes.  They were the contents of a decision made by the Director-General, an executive decision which it was his power to make.  As to the nature of the decision, that was both clear and specific.  It was to change the policy of the Director-General, to change it in respect of how he would in future consider applications made to him in terms of art.54(1) of the Air Navigation Order.  As the changes related directly to in-flight bunk rest for cabin crew on ultra long haul flights it followed that they were changes to the policy expressed in CAD371 as published.  They were therefore changes to CAD371 itself.

65.The Director-General spoke of commissioning a special study on aircrew fatigue but that was no more than an indication that, depending on the result of the study, he may consider changing his policy again.

66.The decision of the Director-General was conveyed in what may be criticised as an informal manner.  But, in changing his policy, as I have indicated earlier, I do not see that he was constrained to any specified procedural steps.  The fact is that all affected parties at the time were represented on the working group.  By attaching the decision to the draft minutes (with a covering letter) the decision was therefore conveyed to them all.  Both the applicant and Cathay Pacific were informed.

67.There was no formal amendment to CAD371 as published.  But, as I have said, CAD371 is not legislation nor a body of legally binding rules flowing from legislation.  CAD371 is a convenient method of stating policy and, in the view of the Director-General, was conveniently changed in the manner he adopted.  The critical questions in my view must be these?  First, was the decision to change the policy conveyed to the affected parties at that time?  The answer to that is yes.  Second, was the change in policy clearly stated?  Again, the answer must be yes.

Did the decision of the Director-General ignore, misinterpret or wrongly apply his policy?

68.It is clear that the Director-General’s December 2004 approval of the Cathay Pacific scheme accorded with the changed terms.  That being the case, it follows, in my view, that the Director-General, in giving his approval, did not ignore, misinterpret or wrongly apply his policy.

The issue of safety

69.By way of a postscript, I wish to emphasise that at no time during the hearing before me was it suggested that the Director-General had acted unlawfully by ignoring or failing to give proper weight to the merits of relevant safety issues.  I was at no time called upon to consider directly any issue of safety.

Conclusion

70.For the reasons given in the body of this judgment, the application for judicial review must be dismissed.

71.As for costs, I see no reason why costs should not follow the event and the applicant ordered to pay the costs of both the respondent and the interested party.  However, as I have not had the benefit of submissions in this respect, my order will be an order nisi only to be made final 30 days after the handing down of this judgment unless an application is earlier made for a different result.

Mr John Scott, SC, leading Mr Richard Zimmern, instructed by Messrs Robertsons, for the Applicant

Mr Nicholas Cooney, instructed by Department of Justice, for the Respondent

Mr John Bleach, SC, instructed by Messrs Johnson, Stokes & Master, for Cathay Pacific Airways Limited (Interested Party)