Background
Whitsunday Regional Council owns and operates the Whitsunday Coast Airport, a certified aerodrome in Queensland. In July 2024 it granted a twelve-month licence to the second defendant, a partnership trading as Whitsunday Air Tours, to occupy part of the airport and conduct scenic charter flights over the Whitsunday Islands and Great Barrier Reef. The first defendant, Bairnsdale Air Charter Pty Ltd, held the Air Operator Certificate (AOC) issued by the Civil Aviation Safety Authority (CASA) that authorised the flights; the third defendant, Mark Noble, was a director of the first defendant, a partner in the second defendant, and the registered operator of the aircraft.
On 16 April 2025 the Council terminated the licence effective 16 May 2025, citing late licence-fee payments, unsatisfactory employee conduct, and a series of safety incidents including two near-misses on the runway in March 2025 and a loss of radio communications with the aircraft in April 2025. Despite the termination the defendants continued to operate commercial scenic flights from the airport — conducting more than 230 flights after the licence ended — and circumvented the Council’s attempt to change the access gate code to keep them out.
The Council commenced proceedings claiming damages in trespass, an account of profits, and a permanent injunction. It also sought interlocutory relief, which was first granted by Ryan J in August 2025 in narrow terms. The defendants promptly breached that interim order, prompting a contempt application and a second, broader interim order. The interlocutory injunction application then came before Smith J for final determination.
The Court’s Holding
Smith J granted an interlocutory injunction restraining all three defendants from trespassing on the airport land, entering it (or sending employees or agents onto it) for any commercial purpose, or operating any aircraft from the land in connection with the business or any other commercial activity. The court was satisfied there was a serious question to be tried on the trespass claim and that the balance of convenience favoured restraining the defendants pending trial.
The central legal contest was whether the defendants’ CASA-issued AOC conferred a right to use the airport that overrode the Council’s rights as landowner. The defendants argued that, because the airport is a publicly certified aerodrome listed in the En Route Supplement Australia, no private permission to land or conduct commercial operations was required and the trespass claim was misconceived. The Council countered that regulation 93 of the Civil Aviation Regulations 1988 (Cth) confirms rather than displaces property rights, and that CASA certification does not strip a landowner of the right to refuse commercial access. Smith J found this dispute raised a genuine serious question to be tried.
On the balance of convenience, the court weighed the defendants’ claimed losses — including the collapse of a business generating approximately $4 million in annual revenue and existing booking commitments of around $290,000 — against the Council’s safety concerns, the defendants’ brazen continuation of operations in breach of the earlier interim orders, and the absence of any licence-fee payments since termination. The court fashioned the injunction to permit the defendants to land at the airport for the limited purposes of refuelling, aircraft maintenance, and genuine emergencies, while prohibiting all commercial passenger operations. Costs of the injunction application were reserved for determination on the papers following written submissions.
Key Takeaways
- A CASA Air Operator Certificate does not, of itself, override a landowner’s right to exclude a commercial operator from privately owned airport land; the question of whether CASA regulation “trumps” property rights raises a serious question to be tried in trespass.
- Continued breach of an interim injunction and deliberate circumvention of security measures weigh heavily against a defendant on the balance of convenience, even where the defendant faces significant commercial harm from the restraint.
- Courts can tailor airport-related injunctions to permit safety-essential access (refuelling, maintenance, emergency landings) while still prohibiting the commercial activity that constitutes the alleged trespass.
- An airport operator’s obligation under CASR Part 139 to allow general aviation access does not necessarily extend to an obligation to permit commercial charter operations by a party whose licence has been lawfully terminated.
Why It Matters
This decision has practical significance for Australian airports and aviation operators. The defendants’ argument — that CASA certification of an aerodrome creates a public-use right that commercial operators may rely on independently of any agreement with the landowner — has intuitive appeal and reflects a genuine regulatory ambiguity. Smith J’s willingness to treat the contrary position as seriously arguable signals that airport owners retain meaningful control over commercial use of their land even after seeking CASA certification, a question that has not been definitively resolved by Australian courts at the appellate level.
The case is also a reminder of the risks of continuing to operate in defiance of a terminated licence. The defendants’ decision to press on commercially — conducting hundreds of flights, breaching an interim injunction, and circumventing security measures — transformed what might have been a difficult balance-of-convenience argument (given the scale of their business) into a much stronger case for injunctive relief. The final trial on the trespass claim, damages, and the account of profits will be a significant test of how Commonwealth aviation law intersects with State property rights.