THE DIRECTOR OF CIVIL AVIATION V ANDREWS HC WN CIV 2009-485-000841

THE DIRECTOR OF CIVIL AVIATION V ANDREWS HC WN CIV 2009-485-000841 3 September 2009IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY CIV 2009-485-000841BETWEEN 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 2009JUDGMENT 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 fateof 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 yeton 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)