Chief Justice Webster in rescinding an injunction that had allowed FlyNiu to continue flying in Tonga, said today it was important that his ruling was understood to be about a temporary measure, and that a final decision will come only after the court has heard all the facts and all the submissions for the parties.

The ruling followed a hearing in the Supreme Court of Tonga on 6 September 2004 to consider a review of the injunction granted by the court on 17 August, to quash the order of the first defendant HRH Prince 'Ulukalala Lavaka Ata, Prime Minister and Minister of Civil Aviation, revoking the plaintiffs Foreign Air Operators Certificate.

The Chief Justice said the purpose of the hearing was only to review the issue of the injunction in relation to the revocation of the FAOC and not for any wider purpose.

"In view of the public importance of the whole matter, it has to be understood that this is only an interim or temporary ruling, which does not affect the full hearing of the plaintiffs' case."

The plaintiffs are Fly Niu Airlines and Air National Corporate Ltd.
The defendants are HRH Prince 'Ulukalala Lavaka Ata, the Kingdom of Tonga and Peau-'o-Vava'u Ltd.

Counsel were Mr Edwards for the plaintiffs; Mr Gudsell, Mr Nielsen and Mr Havea for the 1st defendant; Miss Fukofuka for the 2nd defendant; and Mr Waalkens QC for the 3rd defendant.

Mr Justice Webster said he had noted and considered all submissions but would not express any view on them at this stage, because they may involve matters still at issue when the substantive hearing of the application comes before him.

He said that the material before him had to include the fact that the plaintiffs did not actually apply to be a single operator, "I consider that it is now a more open question whether the plaintiffs have a real prospect of success, though I still think that the outcome is uncertain...…and I still have an open mind on them."

He also considered that the intervention of the 3rd plaintiff Peau 'o Vava'u had made a material difference and had changed the overall picture.

In respect of damages, the Chief Justice said that Peau 'o Vava'u may suffer financial loss if the injunction were continued, while the plaintiffs suffer financial losses if the injunction were rescinded. "To decide between those two alternatives is a truly difficult balance for the court to make, only moderated by the fact that the period of the injunction has only a few more days to run until 15 September."

Other factors which affected the assessment was that there was no evidence the 2nd plaintiff had taken any steps to appeal against the revocation of the FAOC.

However, the first plaintiff Fly Niu, had in the affidavit of Mr Finau its CEO noted that its business will effectively be closed on the revocation of the FAOC and its shareholders will lose their whole investment.

The plaintiffs counsel Mr Edwards had admitted that there was now no problem with making other arrangements for passengers if the quashing of the revocation was rescinded, particularly if a few days grace was allowed.

Mr Justice Webster said, "I should like to make clear in general terms that at this stage any decision about granting or revoking an injunction is about a temporary or holding operation. it is important that this ruling is understood as a whole for what it is: it is emphatically not any indication of likely success in the full hearing, nor of the way the court may be thinking about that. The final decision will only come after the Court has heard all the facts and all the submissions for the parties," he said.

Chief Justice Webster ruled that: "The court orders that it rescinds the injunction granted by it on 17 August 2004 (which quashed the order of the Minister dated 13 August 2004, which with effect from 16 August 2004 revoked the 2nd Plaintiff's Foreign Air Operator Certificate no FAOC57567), the rescission to take effect from 6:00 pm on Friday 10 September 2004."