3 -
5.
6.
7.
Mr Bebchick said that as far as the applications from Laker and B.Cal were concerned the Hong Kong Government was barred from being heard by Proviso (i) to Regulation 14(3) of the Regulations, in that they had not made a timely representation and had merely expressed the wish to make a representation and the wish to be heard. A representation was a statement of fact or a statement of ultimate assertion to which a response can be lodged, and because of this the expression of a wish to be heard was inadequate. Their letter of August 3 1979 was, in respect of Laker and B.Cal, out of time, the applications having been filed on the 19 June 1979.
In the case of Cathay Pacific the Hong Kong Government were clearly not barred by the proviso to Regulation 14(3); however the Authority in exercising its discretion had decided that they were fit to be heard which he maintained was not so as they would be seeking to undermine the decision of the ATLA and by so doing would call into question the integrity and independence of tribunals such as the CAA.
Mr Scott said that at the preliminary meeting on 22 October 1979 all parties had agreed that the representations from the Hong Kong Government should be heard. The ATLA was an independent impartial body appointed by the Governor over which the Government had no control although it did have powers in certain circumstances to appear before it as one of the interested parties. That power had been exercised in Hong Kong and it was now for the Government to decide to what extent it wanted to make representatations to CAA at the present hearing, in the light of the British Legislation and the evidence presented.
8. The Chairman in rejecting both submissions said the Authority believed that where an interested party had expressed the wish to be heard then that request should be agreed to. There was a precedent in English Law (Howard Vv Secretary of State for the Environment [1974] 1 All ER 644) upon which the Authority relied in its decision to accept the representation from the Hong Kong Government. It was also clear from the preliminary meeting that all the parties including B. Cal had agreed that the Hong, Kong Government should be heard provided that a written statement was submitted before the hearing. Any question about the legal relationship between the Government and the ATLA would have to be decided elsewhere and could not be resolved at this hearing.
B CAL's CASE
9. Mr Bebchick said that the ATLA decision had recognised the unique opportunity
presented to secure adequate air services between London and Hong Kong. The present service provided by BA was totally unsatisfactory and in the 31 months to August 1979 53% of the flights to London experienced average delays of slightly over three hours.
10. At the Hong Kong hearing B.Cal had advocated a three carrier regime which
although not their preferred position had taken account of the political realities of Cathay's position as a Hong Kong based carrier.
It subsequently became apparent that Cathay no longer wished to support the three carrier regime at the CAA hearing and as a consequence would not withdraw its objection to the B. Cal application, and would adhere to its original position which was to be licensed as the sole carrier on the route.
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