Roger Maurice Halliwell v The Director of Civil Aviation
| Jurisdiction | New Zealand |
| Judge | T J Broadmore |
| Judgment Date | 11 March 2011 |
| Court | District Court |
| Docket Number | CIV-2009-085-1454 |
| Date | 11 March 2011 |
UNDER the Civil Aviation Act 1990
IN THE MATTER OF an appeal from a decision of the Director of Civil Aviation
CIV-2009-085-1454
IN THE DISTRICT COURT AT WELLINGTON
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
Mr D J Boldt for Appellant
Mr D R Ferrier for Respondent
JUDGMENT OF JUDGE T J Broadmore
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.
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:
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1. Documented instances of Civil Aviation safety breaches by Mr Halliwell showed a consistent pattern of disregard for safety regulatory requirements.
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2. Mr Halliwell delayed and obstructed the investigation of allegations of regulatory breaches during a statutory investigation which raised concerns about his future compliance.
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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.
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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.
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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.
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”.
Following the Director's decision, Mr Halliwell, through his solicitors, promptly filed Notice of Appeal on the grounds that:
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1. There was no, or no sufficient, evidence to justify either finding appealed against.
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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.
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3. In reaching his decision the Director had taken into account irrelevant matters and/or failed to confine himself to relevant matters.
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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.
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.
There is no controversy over the approach I should take to the appeal.
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.
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.
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.
Put another way, the requirement to conduct an appeal by way of rehearing means what it says.
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.
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 the Director of Civil Aviation is whether revocation is necessary in the interests of aviation safety.
Neither party made submissions to me about the standard of proof even though one of the grounds for the appeal was that the Director had misdirected himself as to that. That is a question which has arisen in many occupational licensing cases, particularly in the medical field, but has now been resolved by the decision of the Supreme Court in Z v Dental Complaints Assessment Committee [2008] SC 55, judgment 25 July 2008. The argument that the criminal standard should apply was rejected in relation to a range of different kinds of civil proceedings, and in relation to disciplinary proceedings in particular. The following passages from the judgment of McGrath J, speaking for the majority of the Court, make the position clear:
[112] There is accordingly a single civil standard, the balance of probabilities, which is applied flexibly according to the seriousness of matters to be proved and the consequences of proving them. We are satisfied that the rule is long established, sound in principle, and that in general it should continue to apply to civil proceedings in New Zealand.
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[118] Accordingly, we are of the view that in this country there is no good reason for creating an exception covering disciplinary tribunals. A flexibly applied civil standard of proof should be adopted in proceedings under the Act and other similarly constituted disciplinary proceedings in New Zealand unless there is a governing statute or other rule requiring a different standard.
In this case, unlike many other cases in this area, Mr Halliwell was not dependent on his pilot licence for his livelihood. He was licensed as a recreational pilot only. Indeed, as will appear, a major concern of the Civil Aviation Authority was that he had, in breach of his licence, been flying commercially. In those circumstances, the consequences of revoking Mr Halliwell's licence are far less profound than had his employment, or business, depended on its continuation. In those circumstances, it seems to me that there is no need to apply any flexibility to the ordinary standard of proof to the standard of the balance of probabilities.
The Director's decision was the end point of the Authority's consideration of a number of matters involving Mr Halliwell which had come to its attention over some seven or eight years. I do not intend to embark on a detailed chronological examination of those matters: in the light of the stance taken by Mr Boldt, counsel for Mr Halliwell, at the hearing, that is not necessary. However I will identify those matters as they were formulated at the start of the statutory processes which led to the decision.
The history of those processes starts in September 2008. At that time, Ms Catherine Penney, the Authority's Aviation Examiner, General Aviation Flight Training and Audit, was asked to review material concerning Mr Halliwell held by the Authority. She identified a number of concerns about Mr Halliwell, and...
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