Read the full judgment text of CACV 000324/2005 on BabelCite. This Court of Appeal judgment was delivered on 6 February 2007 before Ma CJHC, Lam JA, A Cheung JA.
Administrative law – judicial review – leave to amend – ultra long range (ULR) flights – minimum in-flight bunk rest for cabin crew – Flight Time Limitation Scheme (FTLS) – CAD371 – whether new points on appeal academic – whether legitimate expectation of consultation on ECASS 1 – whether duty to consult – whether decision irrational for ignoring expert safety recommendation – whether discretion to permit new points on appeal – sub-contract of in-flight rest period for 19-hour FDP set at 4.5 hours following Director-General of Civil Aviation's approval of Cathay Pacific's FTLS in December 2004 – Applicant (Cathay Pacific Airways Flight Attendants Union) sought judicial review challenging the approval – Hartmann J dismissed the application on basis of departure from CAD371 with justified change of policy – on appeal, Applicant sought to raise new arguments based on ECASS 1 report (June 2002) which tentatively recommended 6-8 hours minimum in-flight rest for cabin crew on 18-19 hour FDPs – arguments framed as legitimate expectation to be consulted on ECASS 1, duty to consult, and irrationality/safety – whether points were academic – whether points had merit – whether discretion to allow new points on appeal – ECASS 1 was a tentative recommendation based on limited data on cabin crew – December 2005 decision of Respondent (made after 20th FTLWG meeting on 29 November 2005 with Applicant's participation and after parties had sight of ECASS 1 and ECASS 2) adopted same minimum in-flight rest periods – Applicant's safety argument expressly disavowed by leading counsel in court below – no evidence produced to support safety allegation – 1.5-hour difference in rest time could not rationally be linked to emergency evacuation risk – Respondent had consulted ECASS representatives in November/December 2004 before December 2004 decision – Respondent's approach aligned with international practice (CAAS/SIA) – legitimate expectation requires clear and unambiguous representation, reasonable expectation, and material effect on decision – 'if necessary' wording in April 2001 letter limited the scope of any duty to forward ECASS advice – Court of Appeal discretion against permitting new points involving substantial factual questions raised for first time on appeal without supporting evidence or explanation – appeal dismissed with costs to Respondent and Interested Party.
Legal issues: Whether the new points raised on appeal were academic · Whether the Applicant had a legitimate expectation to be consulted on ECASS 1 before the December 2004 decision · Whether the Respondent had a duty to consult the Applicant before the December 2004 decision · Whether the December 2004 decision was irrational because it ignored ECASS 1's safety recommendation · Whether the Court of Appeal should exercise its discretion to permit new points (including factual questions) to be raised on appeal
Outcome: Appeal dismissed; leave to amend Form 86A refused.
Cited by 4 cases