Roger Maurice Halliwell v The Director of Civil Aviation

 
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IN THE DISTRICT COURT AT WELLINGTON

CIV-2009-085-1454

UNDER the Civil Aviation Act 1990

IN THE MATTER OF an appeal from a decision of the Director of Civil Aviation

BETWEEN
Roger Maurice Halliwell
Appellant
and
The Director of Civil Aviation
Respondent
Counsel:

Mr D J Boldt for Appellant

Mr D R Ferrier for Respondent

Appeal under s66 Civil Aviation Act 1990 (appeal to District Court) against revocation of licence — appellant deemed not to be a fit and proper person under s10 (criteria for fit and proper person test) and s12 (general requirements for participants in civil aviation system) — whether Director of Civil Aviation applied wrong standard of proof — whether Director focused on fit and proper test rather than whether appellant posed a risk to public safety — whether revocation was necessary

The issues were: whether the Director focused on the fit and proper test, rather than whether H had posed a risk to public safety; whether the Director had applied the wrong standard of proof, and whether revocation had been necessary.

Held: In order to revoke H's licence, the Director was required to conclude that revocation was necessary in the interests of aviation safety under s18 CAA (Power to revoke aviation document or impose conditions). All relevant aspects of the fit and proper person test were repeated in s19 CAA (criteria for action taken under section 17 or section 18), which the Director was expressly required to have attention to under s18 CAA. The practical effect of s19 CAA was that the question of whether H remained a fit and proper person to hold a licence was material to the Director's decision. The evidence gathered at the s15A CAA investigation and considered by the Director at the s18 CAA stage remained relevant — even on the basis the Authority officers wrongly gave their express attention the question of whether H was a fit and proper person. The Director was not required to show that H posed a threat, danger or risk to aviation safety simply in the course of flying; that was not what the CAA said. The words “aviation safety” referred to system safety — the continuing ability of the system to maintain a safe aviation environment ( Director of Civil Aviation v Air National Corporation Ltd). The Director was only required to show that H's removal from the system was necessary to maintain aviation safety in the interests of the community at large.

The Directors' task was not to decide if H was guilty of anything; he was performing an administrative function where public safety was the primary consideration. As a result, the Director was not limited to considering only evidence which was admissible in a court of law. Under s19 CAA, he was entitled to have regard to H's compliance history.

The standard of proof was the balance of probabilities. The Director could consider evidence and information which might not be admissible in a criminal or civil court of law. He had been entitled to attach weight to the inferences as to H's conduct and attitude drawn by the officers directly involved in the investigation.

H's activities and attitudes over a long period of time were inconsistent with the interests of aviation safety. He had deliberately departed from acceptable standards. There had been ample grounds to revoke H's licence and it had been necessary to do so.

Appeal dismissed.

JUDGMENT OF JUDGE T J Broadmore

Introduction
1

The appellant, Roger Maurice Halliwell, first held a private pilot licence for flying helicopters (PPL(H)) in September 1997. By letter to Mr Halliwell dated 16. November 2009, the respondent, the Director of Civil Aviation, advised Mr Halliwell of his decision that he was not a fit and proper person to hold a PPL(H) and that it was necessary in the interests of aviation safety to revoke his PPL(H). Section 66 of the Civil Aviation Act provided Mr Halliwell with a right of appeal to this Court. Mr Halliwell invoked that right, and this is the judgment in respect of the appeal.

Grounds for Revocation Decision
2

Later in this judgment I will analyse the reasons for the decision in detail. For the present, the grounds relied on by the Director were set out both in the letter of 16 November and in a prior Notice of Proposed Adverse Decision dated 6 October, as were as follows:

1
    Documented instances of Civil Aviation safety breaches by Mr Halliwell showed a consistent pattern of disregard for safety regulatory requirements. 2. Mr Halliwell delayed and obstructed the investigation of allegations of regulatory breaches during a statutory investigation which raised concerns about his future compliance. 3. Mr Halliwell had failed to admit to any breach or wrongdoing, or provide evidence or information which would lead the Authority to a favourable view of his conduct on the issues under investigation. Having regard to the number of allegations and reported incidents involving Mr Halliwell's operations over a period of time, this stance was not credible. 4. Mr Halliwell had delayed or prevented the disclosure of full information in the course of the investigation by delaying or failing to provide information requested. 5. Finally, Mr Halliwell's failure to provide log book information and daily flight records had been designed to prevent disclosure of operations he had conducted, including agricultural spraying operations, and hire or reward operations without holding the required statutory documentation.
3

Overall, therefore, the Director concluded that he had no confidence that Mr Halliwell would “amend [his] ways and operate in compliance with the requirements and conditions of [his] licence”.

Grounds of appeal
4

Following the Director's decision, Mr Halliwell, through his solicitors, promptly filed Notice of Appeal on the grounds that:

1
    There was no, or no sufficient, evidence to justify either finding appealed against. 2. The Director had misdirected himself as to the proper standard of proof required to be applied and had failed to apply the proper standard of proof. 3. In reaching his decision the Director had taken into account irrelevant matters and/or failed to confine himself to relevant matters. 4. In reaching his decision the Director had failed to properly consider the imposition of a penalty less than revocation of Mr Halliwell's private pilot's licence as an appropriate penalty in the circumstances.
5

The remedy Mr Halliwell sought was the setting aside or quashing of the Director's decision, or in the alternative the imposition of a penalty of less than revocation.

Procedural aspects of appeal
6

There is no controversy over the approach I should take to the appeal.

7

As noted earlier, s 66 of the Civil Aviation Act provides for an appeal to the District Court. Under Rule 14.1.7 of the District Court Rules, appeals are by way of rehearing.

8

Past controversies as to what is required on an appeal by way of rehearing have been resolved by the judgment of the Supreme Court in Austin, Nichols & Co Inc v Stichting Lodestar [2008] 2 NZLR 141,. an appeal concerning possible confusion between similar trademarks. The basis of the appeal was that the Court of Appeal had failed to give sufficient weight to the decision of the Assistant Commissioner of Trademarks. As to that, the Supreme Court said, at [5]:

An appeal court makes no error in approach simply because it pays little explicit attention to the reasons of the court or tribunal appealed from, if it comes to a different reasoned result. On general appeal, the appeal court has the responsibility of arriving at its own assessment of the merits of the case.

9

Later in the judgment, at [16], the Court said this:

Those exercising general rights of appeal are entitled to judgment in accordance with the opinion of the appellate court, even where that opinion is an assessment of fact and degree and entails a value judgment. If the appellate court's opinion is different from the conclusion of the tribunal appealed from, then the decision under appeal is wrong in the only sense that matters, even if it was a conclusion on which minds might reasonably differ. In such circumstances it is an error for the High Court to defer to the lower Court's assessment of the acceptability and weight to be accorded to the evidence, rather than forming its own opinion.

10

Put another way, the requirement to conduct an appeal by way of rehearing means what it says.

11

As to onus, both parties accepted that the position was as stated in the unreported, but widely cited, decision of Judge Abbott in Bonica v Director of Land Transport Safety (District Court, Christchurch, MA 237/00, 2 April 2001). At the conclusion of his judgment in that case, the learned Judge said this:

If the appellant is the holder of a licence, an endorsement on a licence, or some other permit, and if the Director has revoked the entitlement in question on the basis that the appellant is not “a fit and proper person” in the context of the licence, endorsement or permit, the onus is on the Director to satisfy the Court that his or her decision was correct.

12

In Bonica, the “Director” was the Director of Land Transport Safety. It is logical that His Honour's observations apply to the Director of Civil Aviation as well, although the question for...

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