THE DIRECTOR OF CIVIL AVIATION V ANDREWS HC WN CIV 2009-485-000841 [2009] NZHC 1173 (3 September 2009)

IN THE HIGH COURT OF NEW ZEALAND
WELLINGTON REGISTRY
                                                              CIV 2009-485-000841



               BETWEEN                   THE DIRECTOR OF CIVIL AVIATION
                                         Appellant

 
             AND                       IAN DOUGLAS ANDREWS
                                         Respondent


Hearing:       3
September 2009

Counsel:       D R Ferrier and SJR Jennings for Appellant
               C S Withnall QC for Respondent

Judgment:
     3 September 2009


                          JUDGMENT OF FOGARTY J



[1]    This is an application for leave to appeal the
judgment of this Court given by
myself on 29 July last. That judgment was itself on appeal from the District Court
on a point of
law. Section 70 of the Civil Aviation Act 1990 provides for leave to
the Court of Appeal on that question of law. That leave may
be given by the High
Court or if that leave is declined with special leave of the Court of Appeal.
Mr Ferrier has also drawn my attention
to s 67 of the Judicature Act 1908 and to the
line of authority beginning with Waller v Hider  [1998] 1 NZLR 412 and argued the
case must raise a question of law or fact capable of bona fide and serious argument
in a case some interest, public
or private, of sufficient importance to outweigh the
cost and delay in further appeal.


[2]    Mr Andrews' particular grievance
is that as a result of the intervention by the
Director of Civil Aviation he cannot fly with a passenger or over a built-up area.
However, the case appears to have a much wider interest to the industry than the fate



THE DIRECTOR OF CIVIL AVIATION V ANDREWS
HC WN CIV 2009-485-000841 3 September 2009

of the conditions which might or might not survive on Mr Andrews' pilot's
certificate.


[3]     Mr Withnall QC has taken the unusual course, not normally to be
encouraged, of filing affidavits in support of leave to
appeal. He has filed three
affidavits, one by Mr Hamish Ross, the President of the Aircraft Owners and Pilots
Association representing
over 600 owners or pilots in the general aviation field in
New Zealand; another by Mr Richard Mirkin, the Chief Executive of the
New
Zealand Airline Pilots Association, which is both a Union and professional
organisation for 2057 commercial airline pilots and
their traffic controllers in New
Zealand and the third being an affidavit by Ms Irene King, the Chief Executive
Officer of the Aviation
Association Industry of New Zealand which represents the
interests of the commercial aviation community in New Zealand.         
  I am satisfied,
without the need to go into those affidavits, that this is a case regarded by the
industry of some interest and
importance.


[4]     I have also no doubt at all that it is a case which raises questions of law
capable of bona fide and serious
argument each way. That should also be evident I
hope from the length of the judgment and from observations that I made in the
course
of reasoning that the particular parts of the legislation, the subject of the
decision, appear to have been enacted in a context
of some degree of political
division which was active in the Select Committee process.


[5]     Mr Ferrier's arguments against the
granting of leave started first on the basis
that the certificate which was the origin of this argument has now been supplanted by
the s 27B(2) certificate and that certificate indeed is likely to expire before the matter
would be heard by the Court of Appeal.


[6]     The Director did not take this point at the start of the High Court appeal, for
that was by the Director against the decision
of the District Court. It seems to me
that there is some element of basic unfairness if it suited the Director to overlook
some procedural
arguments, (that might have been available in order to render the
dispute arguably moot) to get that dispute heard by the High Court
and get the law
decided contrary to the way it was decided in the District Court on one hand and yet

on the other hand having obtained
a decision in his favour to take the procedural
point as threshold argument against this case going any further. For that reason
I
am not moved by that argument. I move on to the other arguments Mr Ferrier raised.


[7]     He pointed out, quite properly, that
there is a statutory framework where one
appeal is normally sufficient and this is an instance of that so that any second appeal
has to be by way of leave. He also makes the obvious point that not every error of
law is of such importance to be granted a second
level of appeal.


[8]     I agree that if this case was solely concerned with the consequences
applicable to Mr Andrews and not
of interest to other pilots, private, commercial or
air traffic controllers, then there would be a much stronger argument for this
case
going no further. But because the industry obviously considers that this decision of
the High Court has implications for airline
pilots, private and commercial, and air
traffic controllers, I am left in no doubt that it has sufficient interest, private and
public,
to outweigh the costs and delay of a further appeal.


[9]     For these reason, I grant leave to appeal and I will hear counsel on the issue
of costs. [Discussion with counsel]
Having heard from counsel I am satisfied that
Mr Withnall had to make an application for leave in any event and I did have to hear
it. In these circumstances there will be no order for costs.




Solicitors:
L McIntosh, Civil Aviation Authority, Lower Hutt (Counsel
Acting: D Ferrier)
Lane Neave, Christchurch (Counsel Acting: C S Withnall QC)